Superior Cabinets & Design Pty Ltd v Vincent - [2021] QCAT 336

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Superior Cabinets & Design Pty Ltd v Vincent [2021] QCAT 336

PARTIES: SUPERIOR CABINETS & DESIGN PTY LTD

(applicant)

v

KELLY VINCENT

(respondent)

APPLICATION NO/S:

BDL322-19

MATTER TYPE:

Building matters

DELIVERED ON:

22 September 2021

HEARING DATE:

31 August 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application for domestic building dispute filed 20 December 2019 is dismissed.

CATCHWORDS:

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY ON QUANTUM MERUIT – IN GENERAL - where the applicant undertook building works for the respondent – where the works were completed as agreed – where the respondent failed to pay the full agreed price to the applicant – where the applicant lodged a domestic building dispute - where there was no enforceable contract - whether the applicant could recover the monies on a quantum meruit

Electronic Transactions (Queensland) Act 2001 (Qld) (ETA Act), s 14

Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(1), s 77(3)(a), 77(3)(h), sch 1B (3)(1)(a), sch 1B (4)(1), sch 1B (13)(5), sch 1B (14)(10), sch 2

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Roude v Helwani [2020] NSWCA 310.

REASONS FOR DECISION

What are these proceedings about?

Superior Cabinets says that it undertook building work for Ms Vincent, and says it is owed $5,772.20 for the work. Ms Vincent says that the building work was performed by Superior Cabinets in accordance with an agreement Superior Cabinets entered into with Brentkel Constructions Pty Ltd. Ms Vincent says that she has no indebtedness to Superior Cabinets.
Building disputes – the statutory framework
The tribunal has jurisdiction to hear and decide building disputes.[1] Building disputes include domestic building disputes.[2] A domestic building dispute is a dispute about reviewable domestic work or a contract for the performance of reviewable domestic work between: a building owner and a building contractor; or 2 or more building contractors; or a building owner or building contractor and one of a number of specified persons.[3] A domestic building dispute also includes a claim or dispute in negligence, nuisance or trespass relating to the performance of reviewable domestic work, other than a claim for personal injuries.[4]
[1]Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(1).
[2]Ibid, sch 2 (definition of ‘building dispute’).
[3]Ibid, sch 2 (definition of ‘domestic building dispute’).
[4]Ibid.
Reviewable domestic work means domestic building work.[5] Domestic building work includes the renovation, alteration, extension, improvement or repair of a home.[6]
[5]Ibid.
[6]Ibid, sch 1B, 4(1)(b).
In deciding a building dispute, the tribunal may, among other things, order the payment of an amount found to be owing by one party to another[7] and award costs.[8]
[7]QBCC Act, s 77(3)(a).
[8]Ibid, s77(3)(h).
Consideration
The parties filed statements of evidence and gave evidence at the hearing on 1 September 2021.
It was common ground between the parties that there are three issues for determination:
(a)Who were the parties to the contract;
(b)What was the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 336
Decision Date

CaseChat Overview and Summary

Superior Cabinets & Design Pty Ltd brought proceedings against Ms Vincent in the Queensland Civil and Administrative Tribunal (QCAT) under the Queensland Building and Construction Commission Act 1999. Superior Cabinets & Design Pty Ltd claimed that Ms Vincent had failed to pay the full amount owing for building works completed at her property. Ms Vincent disputed the claim, arguing that the building works had not been completed. The tribunal had to determine who the parties to the contract were, what the scope of the contractual works was, and whether the works had been completed. The tribunal concluded that the contract was between Superior Cabinets & Design Pty Ltd and Ms Vincent, and that the works had been completed to the agreed scope, except for the laminated servery top with waterfall end, which had not been included in the final agreement. The tribunal found that Ms Vincent had paid part of the amount owing and that the remaining balance of $4,488.00 was due and payable. Superior Cabinets & Design Pty Ltd was awarded the outstanding amount, plus interest and costs.

Ms Vincent appealed to the Supreme Court of Queensland, arguing that the tribunal had erred in its findings of fact and law. Ms Vincent contended that the contract was between Superior Cabinets & Design Pty Ltd and Brentkel Constructions Pty Ltd, and that the building works had not been completed as agreed. The Supreme Court of Queensland dismissed the appeal, finding that the tribunal had properly considered the evidence and made the correct findings. The Supreme Court of Queensland held that the tribunal had jurisdiction to hear the matter, that the evidence supported the tribunal’s findings, and that there was no error of law. The appeal was dismissed, and the tribunal’s decision was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In deciding a building dispute, the tribunal may, among other things, order the payment of an amount found to be owing by one party to another[7] and award costs.[8][7]QBCC Act, s 77(3)(a).[8]Ibid, s77(3)(h).Consideration The parties filed statements of evidence and gave evidence at the hearing on 1 September 2021. It was common ground between the parties that there are three issues for determination:(a)Who were the parties to the contract;(b)What was the contractual scope of works;(c)Were the works completed.Who were the parties to the contract? The evidence of the applicant is that the contract was between the applicant and Ms Vincent. The evidence of Ms Vincent is that the contract was between the applicant and Brentkel Constructions Pty Ltd, a company now deregistered of which Ms Vincent’s husband, Mr Brent Vincent, was the sole director. It is not contentious that the building works undertaken by the applicant formed part of the construction of a new dwelling. Ms Vincent was the sole registered owner of the property on which the dwelling was being built. At the hearing Ms Vincent gave evidence that she had entered into a contract with a building contractor for the construction of the dwelling. Ms Vincent said that the contractor entered into a sub-contract with Brentkel Constructions Pty Ltd to undertake the building works. Just why this arrangement was entered into was not further elaborated upon by Ms Vincent. Ms Vincent’s evidence was that the details of these contractual arrangements were not communicated to the applicant. Ms Harrold gave evidence for the applicant. She is a director of the applicant and the company bookkeeper. Mr Greg Harrold is Ms Harrold’s husband and the managing director of the applicant. Mr Harrold did not give evidence. Ms Harrold’s evidence was that the applicant was not aware of the contractual arrangements identified by Ms Vincent relating to the construction of the dwelling and that, as far as the applicant was aware, the building works undertaken by the applicant were for Ms Vincent and her husband personally. Ms Harrold’s evidence was that the cost of the works was invoiced to Brentkel Constructions Pty Ltd at the request of Ms Vincent for reasons unknown to her or the applicant. Ms Harrold’s evidence was that the applicant’s quotes were addressed to Ms Vincent personally. It is appropriate here to examine more closely the evidence in relation to the building works and how they came to be undertaken. It is fair to observe that neither party particularly impressed with their recollection of the dates and times of relevant events. This is perhaps unsurprising given that the events occurred over 3 years ago. For reasons I will shortly set out, where the evidence of Ms Harrold and Ms Vincent is in conflict, I prefer the evidence of Ms Harrold. I am satisfied as to the following and make findings that:(a)Discussions took place between, variously, Ms Harrold, Mr Harrold, Ms Vincent and Mr Vincent at various times in or about May 2018 regarding the performance of building work to be undertaken by the applicant at Ms Vincent’s property at which a new home was being constructed;(b)The building works to be undertaken by the applicant included the installation of cabinetry and related works in a laundry, ensuite, mud room and kitchen;(c)The applicant prepared a quote dated 17 May 2018 addressed to Ms Vincent in the following terms (the first quote)[9]:[9]Exhibit 4(i) To supply kitchen as per your drawings and my specification $15,750.00(ii) Laminated servery top with waterfall end $ 1,550.00(iii) 1 off discount for builder’s own kitchen $ -800.00Sub total $16,500.00GST $ 1,650.00Total cost $18,150.00(d)The first quote was forwarded by the applicant to Ms Vincent by email on 17 May 2018;(e)The first quote was accompanied by a written specification prepared by the applicant (the first specification);[10][10]Exhibit 5(f)The first specification included a laminated servery top with a waterfall end;(g)After receipt by Ms Vincent of the first quote and the first specification, the parties engaged in discussions with a view to reducing the cost of the kitchen works. Specifically, Ms Vincent was desirous of ensuring that the costs did not exceed $15,000.00;(h)A further written specification was prepared by the applicant (the second specification) on 17 May 2018. The second specification differed from the first specification in two respects relating to finishes to the cabinet fronts. The laminated servery with waterfall end remained part of the specification;(i)A further quote dated 17 May 2018 was prepared by the applicant (the second quote). The quote provided:(i) To supply kitchen as per your drawings and my specification $13,600.00Sub total $13,600.00GST $ 1,360.00Total cost $14,960.00(j)A further written specification was prepared by the applicant (the third specification) on 17 May 2018. The third specification was in all respects, bar one, identical to the second specification. The difference was that the third specification made no reference to the laminated servery with waterfall end;(k)The second quote was based upon the third specification. Ms Vincent received the second quote and the third specification on 17 May 2018 and accepted the second quote on that date;(l)On 17 May 2018 the parties agreed that the kitchen works would be carried out in accordance with the second quote and the third specification;(m)The second quote did not include the installation of the laminated servery top with waterfall end;(n)The laminated servery top with waterfall end was not within the agreed scope of works;(o)The applicant undertook the works in accordance with the second quote and the third specification;(p)There is no evidence that the works were carried out other than in a proper and workmanlike manner and in accordance with the agreement between the parties;(q)Of the agreed contract price in respect of the kitchen works an amount of $10,472.00 has been paid to the applicant, leaving an amount of $4,488.00 outstanding.

CITATION:	Superior Cabinets & Design Pty Ltd v Vincent [2021] QCAT 336
PARTIES:	SUPERIOR CABINETS & DESIGN PTY LTD
(applicant)
v
KELLY VINCENT
(respondent)
APPLICATION NO/S:	BDL322-19
MATTER TYPE:	Building matters
DELIVERED ON:	22 September 2021
HEARING DATE:	31 August 2021
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	The application for domestic building dispute filed 20 December 2019 is dismissed.
CATCHWORDS:	CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY ON QUANTUM MERUIT – IN GENERAL - where the applicant undertook building works for the respondent – where the works were completed as agreed – where the respondent failed to pay the full agreed price to the applicant – where the applicant lodged a domestic building dispute - where there was no enforceable contract - whether the applicant could recover the monies on a quantum meruit Electronic Transactions (Queensland) Act 2001 (Qld) (ETA Act), s 14 Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(1), s 77(3)(a), 77(3)(h), sch 1B (3)(1)(a), sch 1B (4)(1), sch 1B (13)(5), sch 1B (14)(10), sch 2 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Roude v Helwani [2020] NSWCA 310.