Tam Constructions v Cowan

[2013] QCAT 419

CITATION: Tam Constructions v Cowan [2013] QCAT 419

PARTIES:	Trevor Allan Must t/as Tam Constructions (Applicant)
V
Tracey Lee Cowan (Respondent)

APPLICATION NUMBER:            BDL220-12               

MATTER TYPE: Building Matters

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON:   9 August 2013

DELIVERED AT:   Brisbane

ORDERS MADE:  1.   The applicant must file in the Tribunal and give to the Respondent a schedule of work done for the hours claimed for each day set out in his invoices dated 19/12/2010, 26/02/2011 and 28/04/2011 by

4:00pm on 21 August 2013.

CATCHWORDS : 

BUILDING MATTERS - Particulars – application for particulars of work done for hours charged – whether applicant should provide schedule for work billed and paid for by the respondent.

Queensland Civil and Administrative Tribunal Act 2009 s 3

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 28 May 2013 Mrs Cowan filed a miscellaneous application asking the Tribunal to amend the directions made on 3 April 2013. On 10 July 2013, at a directions hearing, I extended the time for the parties to file and exchange a Scotts Schedule of defective and incomplete work to 16 August 2012 and 6 September 2013 respectively. This direction dealt with paragraphs 4 and 6 of the orders sought in the miscellaneous application.

1. The other directions sought were that Mr Must file a schedule of all building work performed by him and include in the schedule a column setting out which work related to each particular invoice delivered by him to the respondent. The schedule is sought in respect of all invoices, even those that were paid by Mrs Cowan, and the three that were not paid and are the subject of Mr Must’s application. The other direction sought is that Mrs Cowan be given an opportunity to respond to the invoice schedule. At the directions hearing on 10 July 2013 Mr Must could not understand why he should have to provide such a schedule when the work had been done, perhaps defectively, and he has been paid. It is only the disputed invoices, he says, are relevant to the proceeding. I agree.

1. Whether there is any efficacy in directing that such a schedule be prepared must be considered in light of the issues in dispute and the objects of the QCAT Act which requires the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. The issues here are Mr Must’s claim for unpaid labour charges and the counter claim for incomplete and defective work.

1. Mrs Cowan was an owner builder. She held a Permit (No 106418) from the Queensland Building Services Authority. The parties agree that Mr Must was to be engaged on an hourly rate to undertake building work as directed by Mrs Cowan as the building contactor under the Owner Builder Permit. Mr Must was not the building contractor for the job nor was he responsible for the supply and payment of materials or for sub trades. This is consistent with him rendering a number of invoices for labour only, all of which are annexed to and referred to in the Response and Counter- Application filed on 25 January2013. Of the invoices rendered Mrs Cowan has paid $98,036.27 to Mr Must for labour charges. There is no dispute about the money paid.

1. Mr Must left the job site in Clayfield on 23 February 2011 and rendered two invoices after that: one dated 26 February 2011 for $9,707.50; another dated 28 April 2011 for $3,300.00. The balance is made up of a short payment of $8,726.78 from invoice dated 19 December 2010 for $18,726.78. Frankly, I cannot now see how a full reconciliation of all of the invoices referred to in paragraph 5(c) of the Response is relevant or helpful to the issues to be decided when there is no allegation that he is not entitled to payments already made for work done for the benefit of the respondent.

1. There is an allegation that the agreement was for a labour charge of $50/hr but on some of the invoices the rate is $70/hr but once the Tribunal determines what the rate should be, and adjustment can be made in Mrs Cowan’s favour if necessary. In any event Mr Must says that he informed Mrs Cowan of the increase to which, he says, there was no objection.

1. Therefore, as I said at the directions hearing in July 2013, if is up to Mr Must to satisfy the Tribunal that he is entitled to balance money owed and he must justify that he did the work the subject of the outstanding invoices. If he does not provide particulars of what he did to each day the labour charges were incurred by Mrs Cowan his claim might be dismissed.

1. I note that Mr Must has not specifically addressed this in his statements of evidence and to avoid any confusion at the hearing and so Mrs Cowan is not taken by surprise I will direct that particulars of the labour charges be provided by Mr Must in respect of the outstanding invoices, as I have previously indicated he should do in both the most recent directions hearings. Presumably Mr Must has a diary or record of what was done to justify the charges set out in the various invoices.

1. I will leave it to Mrs Cowan as to whether she wants to respond to those particulars.

1. The other directions sought have all been dealt with in directions made on 10 July 2013.