Tillbrook v Mosis Builders Pty Ltd - [2013] QCAT 596

CITATION:

Tillbrook v Mosis Builders Pty Ltd [2013] QCAT 596

PARTIES:	Guy David Tillbrook (Applicant)
v
Mosis Builders Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL046-13

MATTER TYPE:

Building matters

HEARING DATE:

31 May 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

7 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The applicant pay the respondent $4,511.20 forthwith.

CATCHWORDS:

Building dispute – Whether contract for building work – Whether liability to pay for work done

Domestic Building Contracts Act 2000 ss 8, 8(8), Schedule 2
Queensland Building Services Authority Act 1991 Schedule 2

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Guy David Tillbrook

RESPONDENT:

Mosis Builders Pty Ltd

REASONS FOR DECISION

Guy Tillbrook owns a building at 13 Ferguson Street North Ipswich. He applies to the Tribunal in respect of a domestic building dispute seeking relief from full payment claimed in respect of which he says is unauthorised building work.
The reasons he gives for seeking the order are as follows:
(1) The builder agreed to visit the site and by consultation with the owner come up with a proposal including time and cost for the rectification of the floor to retain original character.
(2) The builder explained he worked on an hourly rate and the applicant explained that was not acceptable.
(3) Both parties agreed for the builder to attend to the site in January 2013 to develop a more detailed proposal for the owner’s consideration.
(4) The owner explained the process would be managed through the Rental Management Company.
(5) The builder embarked on demolition in replacement of the floor including the laying of a Masonite product without any consultation with the owner.
(6) The owner was made aware work was well underway and immediately advised the builder to stop and submit a claim for work which was not authorised. The claim is for major structural work outside of the owner’s scope and budget.
QCAT has jurisdiction to determine matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.
The Queensland Building Services and Authority Act 1991 (QBSA Act) allow a person involved in a building dispute to apply to the Tribunal to have the Tribunal decide the dispute. The term “building dispute” is defined in Schedule 2 of the QBSA Act as meaning, “a domestic building dispute…”
“Domestic building dispute” means –
(a) A claim or dispute arising between a building owner and building contractor relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(b) A claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(c) A claim or dispute in negligence, nuisance or trespass relating to the performance of reviewable domestic work other than a claim for personal injuries; or
(d) A claim or dispute arising between a building owner and building contractor in any one or more of the following, relating to the relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work-
(i) an architect;
(ii) an engineer;
(iii) a surveyor;
(iv) a quantity surveyor;
(v) an electrician or an electrical contractor;
(vi) a supplier or manufacturer of materials used in the Tribunal work.
“Reviewable domestic work” is defined in Schedule 2 of the QBSA Act as, ‘domestic building work under the Domestic Building Contracts Act 2000, except that for, applying s 8(8) of that Act, the definition excluded building work in that Act, is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition’.
“Domestic building work” is defined in s 8 of the Domestic Building Contracts Act 2000. Each of the following is domestic building work –
(a)The erection or construction of a detached dwelling;
(b)The renovation, alternation, extension, improvement or repair of a home;
(c)Removal or re-siting work for a detached building.
Relevantly, “domestic building work” includes ‘work (associated work) associated with the erection, construction, removal or re-siting of a detached dwelling’.
Section 8(8) of the Domestic Building Contracts Act 2000 provides that ‘domestic building work does not include excluded building work’.
“Excluded building work” is defined in Schedule 2 of the Domestic Building Contracts Act 2000 to be, relevantly,
(b) Design work carried out by an architect, engineer or draftsperson;
(c) The preparation of plans, specifications, or bills of quality for the carrying out of domestic building work; and
(d) Work involved in obtaining foundations data about a building site.
The Tribunal has jurisdiction to decide this dispute.
In response, Mosis Builders seeks full payment for works carried out at 13 Ferguson Street North Ipswich. They say the works comprised of a complete replacement of the bedroom floor (bearers, joints and flooring) as well as a roof replacement at the rear of the dwelling. They say that the invoice value is $4,313.80 plus an additional BSA insurance charge of $197.40. they claim the total of $4,511.20.
Further in response to the application they say that there was an agreement that the respondent would carry out repairs on an hourly rate. They say they visited the site numerous times and came up with a proposal for repairing the damage which Mr Tillbrook agreed to. Because of the nature of the termite damage and because the extent of the repair work was not known it was agreed that the job was impossible to quote on and that Mosis Builders Pty Ltd would carry out repairs on an hourly rate.
On or about 12 October 2012 a work order was issued to Mosis Builders in respect of floor damage of 13 Ferguson Street, North Ipswich, a property let by LJ Hooker and owned by the applicant.
Prior to this date, the tenant had complained of a hole in the floor that made her feel unsafe on or about February 2012. In April, Mosis Builders were engaged by the realtor representing Mr Tillbrook to inspect the property and found that there were live termites. They repaired the floor at no cost as there was, according to Anne Webber of LJ Hooker, ‘a very real danger of the tenant falling through the floor, resulting in possible injury litigation’.
Mr Mosis for the respondent contends that he spoke to the applicant on 5 April 2012 about the work and the applicant agreed that the work could only be charged at an hourly rate plus material costs. The applicant says that he would not engage a contractor without a clear agreement on scope of price.
After being engaged on October 12, the respondent went to the property to discover the termites were still active and permission was given for the builder to organise another pest treatment prior to repairing the flooring. A termite inspector was authorised to inspect and treat the problem.
An email was sent from the respondent to the applicant on 18 December stating that work would not begin before the New Year. The applicant responded ‘that was fine’.
In mid-January 2013 the work took place. The respondent contacted the applicant on his mobile phone to ask whether the tenant could choose the colour of the vinyl floor covering.
The applicant was sent an invoice for $4,511.20 on about 10 January 2013 once the work was complete.
On or about 14 January 2013 the applicant asked the respondent to refrain from further work and requested photos of what he considers to be major building work.
The applicant argues that he did not authorise the work and has no means to pay. He seeks relief from payment of the invoice, totalling $4,511.20.
He contends that the property was bought cheaply, has discounted rent ($165/week) and is earmarked for redevelopment. Apart from ensuring tenant’s safety, as defined in the agent agreement, he contends that he has never authorised major building works to proceed. Furthermore, the applicant contends that it was his intention to receive at least three quotes to repair the whole floor and that it would be restored to its natural character.
The applicant contends that no approval was obtained by local council for the work. However the respondent noted that replacement of joists and bearers with the same sizes as original does not require council approval. They argue that the works could not be considered ‘major’.
The respondent also contends that it has suffered a financial loss in respect of payment for materials used for the repairs and the loss of two weeks wages.
After the hearing of this matter, the parties provided further material and submissions. On 5 June 2013, Mr Tillbrook wrote to QCAT and supplied a copy of the PAMD Form 20a, the appointment of agent form showing that Anne Webber was appointed as the agent for Mr Tillbrook in respect of the property.
He also supplied a copy of a maintenance order which was addressed to Mosis Builders Pty Ltd. The subject of the maintenance order was ‘repair flooring and ceiling’. The details provided on the maintenance order were as follows:
Hi Hugo (Hugo Mosis), as per our phone conversation can you please arrange a time with the tenant to repair the termite damage, flooring and ceiling leak when you have time. I have checked our records and a termite treatment were carried out in May this year by Termicide. Can you please call Guy the owner before the work begins? 0405 373 554.
He also provided a copy of an email from Anne Webber dated 19 February 2013. In it, Anne Webber says the following:
·on 9 February I was asked to get quotes to fix the floor and several other jobs including painting – this was our first introduction of Mosis Builders to Mr Tillbrook…
·Quotes were supplied but nothing of significance was done – a couple of handyman jobs, nothing more.
·Several months alter after a complaint from the tenant regarding the floor having a hole in it and feeling unsafe I requested permission for the floor to be fixed.
·Permission was given and Mosis builders went to the property and found that there were live termites and that they needed to be treated ASAP. They repaired the floor at no cost as there was a very real danger of the tenant falling through the floor resulting in possible injury and litigation.
·In October after a routine inspection, repair work was requested and approved by the owner in regard to the termite damaged floor and the leaking roof – a work order was issued to Mosis Builders on the 12^th.
·The builder again went to the property only to discover the termites were still alive – permission was given to the builder to organise another pest treatment prior to repairing the flooring.
·An email was sent to the owner on 18 December by the builder stating that they would not be able to start work at this property before the New Year.
·A reply email was sent from the owner to the builder thanking him for the email, that the time frame was fine and wished him a happy New Year.
·In mid-January the work took place and an invoice was sent to the owner.
Ms Webber said she has inspected the property on several occasions and she does not feel that there was any other way to fix the problems that were present. She believes that verbal and written approval via emails had been given to the builder to carry out the works. Mr Tillbrook has challenged in a number of emails the account by Ms Webber.
During the hearing Mr Tillbrook told me that he is under financial difficulty and that he did not want to pay Mosis Builders Pty Ltd their invoice.
Mr Mosis filed in the Tribunal further material on 7 June. Part of that material provides a record of contact with Mr Tillbrook and the agent.
In my view it is likely that Mr Tillbrook knew of the work to be done and the need for it to be done.
I am satisfied that Mosis Builders Pty Ltd was engaged to carry out the work. I am satisfied that they did carry out the work and that the amount charged for the work is reasonable. A maintenance order was issued to Mosis Builders Pty Ltd and in my view, from the contacts with Mr Tillbrook, Mr Tillbrook knew that the work was being carried out and allowed it to be carried out at the request of the agent acting on his behalf. Indeed there was contact between Mr Tillbrook and Mr Mosis which corroborates my view.
In my view, the reasons advanced by Mr Tillbrook as to why he should be relieved of payment have not been made out. I prefer the evidence provided and given by Mr Mosis. I have been supplied with photographs of stages of the work being done and as I say I am satisfied that it was carried out.
In my view the application should be dismissed and an order should be made that Guy David Tillbrook pay Mosis Builders Pty Ltd the sum of $4,511.20 forthwith.