Tauber v Claudia Tiller Holdings Pty Ltd
[2012] QCATA 1
•4 January 2012
| CITATION: | Tauber v Claudia Tiller Holdings Pty Ltd [2012] QCATA 1 |
| PARTIES: | Mr Ronald Tauber (Applicant/Appellant) |
| v | |
| Claudia Tiller Holdings Pty Ltd t/as Luxury Gold Coast Pools (Respondent) |
| APPLICATION NUMBER: | APL290-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 4 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to Appeal is granted.1. The decision of the Tribunal dated 4 October 2011 is set aside and instead it is ordered that Ronald Tauber pay Claudia Tiller Holdings Pty Ltd the sum of $3,927.80 by 28 February 2012.2. |
| CATCHWORDS: | Minor Civil Dispute – where interest allowed – where unexplained delay in commencing proceedings for recovery of debt – where time over which interest is awarded discretionary – where discretion miscarried Queensland Civil and Administrative Tribunal Act2009, ss 14, 142(3), 146 Serisier Investments Pty Ltd v English (1989) 1 Qd R 678 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
In August 2007 Mr Tauber signed a written contract with Luxury Gold Coast pools for the construction of a 3.9m x 5.4m inground swimming pool at his residence at 13/18 Elliot St Surfers Paradise. The total cost of the swimming pool was $24,800.00. The contract obliged Mr Tauber to pay an initial deposit of $1,240.00. He also paid a further $1,000.00 to cover the cost of “Council fees”. The commencement date for the construction was 14 days after approval by the Council.
At the time of signing the contract, there was discussion about a sewer line which is depicted on the sketch plan of the pool. Mr Tauber contends that he was told by Mr Scott, a representative of Luxury Gold Coast Pools that the pool could be built over the sewer line. This is disputed by Mr Scott who says that he had to obtain Council approval to build up to this sewer line in accordance with the sketch plan.
Mr Tauber expressed concern about the sewer line and between August 2007 and March 2008 he made his own enquiries about building on or adjacent to the sewer line, became dissatisfied with the answers he was getting, and decided to terminate the contract.
There was some considerable delay in obtaining Council approval for the swimming pool partly because the Council referred those sorts of inquiries to All Connex Water as the assessment authority for in ground swimming pools. Finally, the Council did issue an approval on 19 March 2008.
When Mr Tauber decided that he did not want to proceed with the pool he telephoned Luxury Gold Coast Pools on 13 March 2008 and verbally cancelled the contract. There can be no doubt that that is the date of cancellation because in a letter of that same date to Mr Tauber, Luxury Gold Coast Pools wrote:-
“Further to our telephone conversations, we note that you have requested to cancel the signed contract for the construction of an in ground steel reinforced concrete swimming pool at the above address. Please note we have not received your request in writing to date.
We have outlined below the out of pocket expenses to date and request payment within 7 days of this invoice.
Engineering $ 330.00
Certification $1,082.00
Contractors fees $1,548.00
Administration fees $ 367.80
We can claim loss of profit
between 18-20%
We are claiming only 10% $2,480.00
$5,807.80
Less Deposit received 2.8.07 $2,240.00
Balance Owing $3,567.80”
Mr Tauber did not pay the amount claimed. A subsequent letter of demand was sent on 6 January 2010 and there was also an intervention by collection agents. Ultimately, because of the non payment Luxury Gold Coast Pools commenced a proceeding in the minor civil dispute jurisdiction of the Tribunal on 27 April 2011 nearly four years after the signing of the contract. The application was defended and it came on for hearing before a Tribunal Adjudicator on 4 October 2011.
At the conclusion of the hearing the learned Adjudicator ordered that Mr Tauber pay to Luxury Gold Coast Pools the amount claimed in the invoice of 13 March 2008 together with interest at 15% in the total sum of $5,285.84.
From that decision Mr Tauber filed an application for leave to appeal or appeal in the Appeal Tribunal on 7 October 2011. Leave to appeal is necessary.[1] The grounds of appeal do not attempt to identify any specific error on the part of the learned Adjudicator who heard the case but rather, it challenges the evidence that was put before her. By way of example, Mr Tauber raises the fact that two invoices with two different logos were produced on the same day. It is difficult to appreciate the point of this when the learned Adjudicator made findings of fact about the damages payable for Mr Tabuer’s unilateral termination of the contract and that the applicant was entitled to the damages claimed in accordance with the letter of demand on 13 March 2008.
[1] QCAT Act, s 142(3).
Mr Tauber also challenges the lack of proof that Luxury Gold Coast Pools actually made payments of the amounts claimed as outgoings. The learned Adjudicator was entitled to accept the evidence of Mr Scott on this point which was consistent with the history of the matter and the documents produced by Luxury Gold Coast Pools and attached to the initial letter of demand. Mr Tauber also makes some point about the contract being cancelled verbally after eight months suggesting, I suspect, that because nothing was done in that period the contract was either frustrated, or perhaps abandoned by Luxury Gold Coast Pools. This argument may have some force except there was a specific condition that works would not commence until approval was obtained which was in fact on 15 April 2008. It would have been prudent for Luxury Gold Coast Pools to keep Mr Tauber informed of the problems it was having with the approval process rather than simply sit back and wait for the approval to come through. Mr Tauber complained about this to the Tribunal[2] where he questions why wait three years to then pursue the claim. He says he had put the matter behind him at that stage and then unexpectedly he received a claim in the minor civil dispute proceedings. It is fair to say however that further invoices were sent to him and the services of a collection agency were engaged. Although he does have a legitimate ground for complaint in that there were no active steps taken to prosecute the claim.
[2] Page 14 line 50.
[10] In the end, the learned Adjudicator in her detailed reasons and consistent with the evidence before her, was satisfied that Luxury Gold Coast Pools had made out its claim for damages. Mr Tauber has not been able to identify any error on her part which would warrant interference by this Tribunal.
[11] Mr Tauber’s complaint about the delay in prosecuting the claim is a valid one, particularly when the claim includes $1,626.04 for interest. This is nearly half the amount claimed.
[12] Interest is provided for under the contract. The Tribunal also has power to award interest[3] but because the agreement makes specific provision for interest section 14 is of no application. The learned Adjudicator did give some consideration to the delay in her reasons and relied on the fact that letters of demand were sent to Mr Tauber in 2008, 2009 and 2010 as already indicated. She was satisfied that attempts were made to recover the debt but in my view, she did not go far enough to determine whether or not the delay was justified.
[3] QCAT Act, s 14.
[13] When the initial demand for payment was made on 13 March 2008 was not responded to by Mr Tauber, it ought to have been clear to Luxury Gold Coast Pools that payment would not be forthcoming and the reasonable and appropriate step at that time, would have been to institute legal proceedings for recovery if it wanted to preserve its contractual right to recover interest.
[14] Delay is a relevant factor in exercise of the discretion whether to award interest. In Serisier Investments Pty Ltd v English[4] Thomas J (with whom Kneipp and Derrington JJ agreed) said:
“There are sometimes circumstances in which it would be unfair to order a defendant to pay interest over the whole period. This includes the situation where the defendant is unaware of the existence of any claim or liability and would have ordered his affairs differently had he been advised of it, or where a defendant may have offered amends at an earlier date had the claim been made. A far more common case in which interest is not allowed from the date of the loss is where the plaintiff has been guilty of unreasonable delay in prosecuting the claim. The public policy of having claims brought and determined promptly seems to underlie this approach. Goff J thought that "this may be to encourage plaintiffs to prosecute their claims with diligence, and also because such conduct may lull a defendant into a false sense of security, leading him to think that the claim will not be pursued against him" (B.P. Exploration (Libya) Co. Ltd v. Hunt (No. 2) at 847). These examples are however exceptions to the normal position that in order to remove the advantage that the wrongdoer has had from money that ought to have been in the pocket of the plaintiff interest is awarded from the date of loss."
[4] (1989) 1 Qd R 678 at 679-80.
[15] In my view, the learned Adjudicator did not go far enough when considering the factors to be taken into account when exercising the discretion to award interest, even though the payment of interest was provided for in the contract. Although Luxury Gold Coast Pools has a contractual right to interest, the period over which interest is payable is discretionary and must be reasonable. It should not include a period where there is extraordinary delay in commencing proceedings to recover the damages, and where the delay is not satisfactorily explained.
[16] The minor civil dispute proceeding was commenced on 27 April 2011 and heard on 4 October 2011, a period of about 5 months. In the circumstances, it would have been reasonable to allow interest over a period of 6 months because Mr Tauber chose to ignore the letter of demand. The damages claimed were proved to the satisfaction of the learned Adjudicator was $3,567.80. The interest at 15% over a six month period is $267.00. This would reduce the interest claim by $1,358.04 and the overall judgment sum to $3,927.80.
[17] As I have found that there is an error of law leave to appeal should be granted. The Appeal Tribunal is in a position to set aside the learned Adjudicator’s decision and substitute its own decision.[5] Therefore, the order of the Tribunal will be that the decision of the Tribunal made on 4 October 2011 is set aside and instead there will be an order that Mr Tauber pay Luxury Gold Coast Pools $3,927.80.
[5] QCAT Act, s 146.
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