Townview Holding Pty Ltd v Sunstate Design and Construct Pty Ltd - [2012] QCAT 231

CITATION:

Townview Holding Pty Ltd v Sunstate Design and Construct Pty Ltd [2012] QCAT 231

PARTIES:	Townview Holding Pty Ltd (Applicant)
v
Sunstate Design and Construct Pty Ltd (Respondent)

APPLICATION NUMBER:

MCDO99-11

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

30 April 2012

HEARD AT:

Holland Park

DECISION OF:

K Buxton, Adjudicator

DELIVERED ON:

25 May 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent Sunstate Design and Construct Pty Ltd pay to the applicant, Townview Holding Pty Ltd the sum of $30,255.00 ($25,000.00 in claim plus interest at 10% per annum for 2 years totalling $5,000.00 plus filing fee of $255.00) by 30 June 2012.

CATCHWORDS:

Claim on unpaid invoice – particularity of calculations – whether unlicensed building work – whether invoiced work already paid

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Kettle

RESPONDENT:

Mr and Mrs Chan

REASONS FOR DECISION

In this application Townview Holding Pty Ltd (TVH) seeks to recover from Sunstate Design and Construct Pty Ltd (SS), as a debt, the sum of $25,000.00 plus fees and interest.
The debt is said to be owing for works done as variations to a contract with SS who was itself contracted to perform works for the construction of the Tambry Early Learning Centre in Karratha, Western Australia. TBH relies on invoice 1256, dated and issued 14 May 2010, in the sum of $24,000.00 plus GST, totalling $27,060.00. Section 12 of the QCAT Act provides QCAT with jurisdiction to deal with a claim up to the prescribed amount of $25,000.00 and, by filing the application in a sum of $25,000.00[1], the applicant has limited its claim to that amount.
[1] QCAT Act, ss 12(2) and (3).
The substantive issues raised by SS in response to the debt claim are[2]:
1.TBH required a license from the Queensland Building Services Authority to perform the works and, as it did not hold that license, it is not entitled to be paid for the works; and
2.SS did not receive a quote for the works.
[2] Response filed 20 July 2011.
SS does not deny that the works were carried out, although the arrangements between the parties appear to have been complicated by the use of a different entity, Corrosion Control Technology Pty Ltd (CCT), for the contract works then the use of TBH to invoice for the variation. This is not a point which was expressed by SS, either in its filed response or during the hearing, as resulting in the conclusion that TBH was not the proper applicant for relief. This is consistent with the history of the matter which shows that SS’s reluctance to pay has arisen from three quite different issues.
1.SS was involved in a dispute with the head contractor as to the variations which was not resolved until many months after invoice 1256 was issued.
2.TBH had not provided supporting material showing precisely how the invoice figure was calculated, including time sheets, invoices etc.
3.TBH had already been paid for the same work by SS paying out on invoice 1255, also issued by TBH.
Dealing with these issues in turn, the material filed by the parties sets out the nature and history of SS’s dispute over variations with the head contractor, Ri-con Construction Pty Ltd (RC) as follows:

14/5/2010	Invoice 1256 submitted by TBH to SS
28/7/2010[3]	SS directed a progress claim for variations, including the works described in invoice 1256, 2 RC. That work was described as “VO Tombry 001” in the sum of $38,405.00, plus 10% GST totalling $42,245.00.
23/9/2010[4]	Meeting between the directors of SS (Mr and Mrs Chan) and Mr Ward of RC in which an agreement was reached as to the variations claimed. As to the grouting work the subject of invoice 1256, and the correlating variation claim VO1, the notes of the meeting state, “Ri-Con pay”.
1/12/2010[5]	Email from Mr Ward to Mr Kettle, director of TBH, stating “Sunstate has been paid”.

[3] TBH to Mr Kettle’s affidavit filed 20 February 2012.

[4]TBH 7 to Mr Kettle’s affidavit filed 20 February 2012, handwritten notes signed by Mr Ward and Mr and Mrs Chan of a meeting which took place on 23 September 2010.

[5] Page 5 attached to the TBH submission dated 14 November 2011.

This material demonstrates that, on the balance of probabilities, the variations claimed in invoice 1256 were done, that they were claimed by SS as variations as against Ri-Con, the head contractor, and that SS ultimately received payment from Ri-Con for its claims sometime between 23 September 2010 and 1 December 2010.
The second issue of concern raised by SS was the lack of particularity supporting material to justify the figure of $24,000.00 plus GST in invoice 1256. TBH relied heavily upon an email dated 10 May 2010[6] as providing a “quotation for the variations”. On the third page of that email, under the hearing “variation” some information is provided as to tasks to be performed and hourly rates for various workers. The email ends “more to follow”. It was sent at 8:57am. Mr Kettle stated during the hearing that the variation works were undertaken on 10 May 2010 and invoiced 4 days later. He relied on that invoice and that email as providing sufficient particularity of the figure claimed in the invoice. Whilst giving evidence at the hearing, Mr Kettle could not provide with any precision the method of calculation of the $24,000.00 figure in the invoice. He was unable to produce timesheets for the workers or even a list of names, hourly rates and actual hours worked. Mr Kettle, on behalf of TBH, relied on the following in support of the figure in the invoice.
(a)He is a director of CCT and TBH.
(b)Through him, CCT assigned TBH the benefit of the claim for variations (the terms of such an assignment are unclear, but TBH’s rather than CCT’s entitlement to claim on the invoice is not disputed by SS).
(c)TBH provided an indication of costs by email dated 10 May 2010.
(d)When the work was complete the invoice was rendered in the sum of $24,000.00 plus GST.
(e)Either that sum was agreed between the parties as the proper charge for the variation of works; or it represents a calculation of work done in accordance with the email of 10 May 2010.
[6] TBH 1 to Mr Kettle’s affidavit filed 20 February 2012.
When pressed during the hearing Mr Kettle could not directly reconcile the figures quoted in the email with the invoiced sum of $24,000.00 plus GST.
Mr and Mrs Chan, directors of SS, made much during the hearing of the fact that no timesheets were produced to justify the invoiced figure and it is surprising that TBH can not reconcile how that figure was arrived at with more particularity than “it was agreed”. However, SS advanced their own claim for variations based on this figure. That claim succeeded.
In the absence of particularity as to the calculation the question must be answered whether the sum charged was in accordance with the contract between the parties. There is no evidence that SS took issue with the charges when the invoice was issued. There is no evidence of correspondence or exchanges between the parties contemporaneously with the issue of the invoice where SS stated that the sum charged was too high or was otherwise not in accordance with the terms of the contract between the parties. The directors of SS did not assert overcharging then and they do not do so now. They each stated that if they had a proper understanding of the calculations they would not object to paying (subject to the issue of the BSA licensing to which I will come).
Therefore, whilst it would have been informative for the Tribunal to have been given an understanding of those calculations, the invoice itself was not challenged at the time it was rendered and I therefore conclude that the amount claimed was consistent with the terms of the contract between the parties for payment of the variations. It follows that the complaint in SS’s response, that it had not received a quote, is not made out and does not in any event support the allegation that the invoice is unreasonably high or is other than in accordance with the terms of the agreement between the parties.
The next argument is that TBH was not licensed by the Queensland Building Services Authority to perform the works and is therefore not entitled to payment.
The works were performed pursuant to a “building contract” as defined (in schedule 2 of the Queensland Building Services Authority Act 1991 (QBSA Act)) as a contract or arrangement to carry out building work in Queensland. As these works were performed outside of Queensland there is no “building contract” regulated by the QBSA Act. “Building work” itself is also defined, and is not expressly limited to work undertaken within Queensland. It is unclear whether the QBSA Act was intended to apply to building work outside Queensland, but because section 42 of the Act which deals with carrying out of building work without a license has no express limitation upon such work being carried out within Queensland I will consider whether section 42 limits TBH’s right to recover payment for the works.
TBH admits that it is not licensed for the works and asserts that SS is also unlicensed. However documents prepared by SS indicate that it holds BSA license 1104740. That BSA license number is quoted on invoice 1256 and I therefore conclude that TBH was aware of that BSA license at some point prior to the invoice being issued.
It is unclear whether SS’s license extends to work in the relevant class. This issue was not the subject of direct evidence during the hearing. What is clear, however, is that SS informed TBH that it was licensed and TBH appeared to rely upon that assertion in issuing the invoice.
QBSA Act, section 42(5A) provides that an unlicensed person who carries out building work for a contractor licensed in the appropriate class does not contravene section 42 if they carry out that work as a subcontractor. It is a matter for SS to prove both that TBH is unlicensed (which is admitted) and that SS itself does not hold a license in the appropriate class in order to establish a contravention of section 42. SS has not done so. It follows that the limitation upon recovery of payment for unlicensed works in section 42(3) does not apply as SS has not established that TBH has contravened that section.
The final fact or issue raised in written submissions and during the hearing was the allegation that TBH had already been paid for the works. However, it was apparent during the course of the hearing and from the evidence tendered by both parties that the various invoices issued by TBH and CCT for this job that invoice 1255 was for contract works and not for variations. Invoice 1256 was issued 4 days after the variation works were in fact undertaken and there is no evidence to support the suggestion that the works in invoice number 1256 have previously been invoiced for or paid.
In summary, there is sufficient evidence that the issuing by TBH of invoice 1256 for the sum of $24,000 plus GST was consistent with the agreement between the parties. There is insufficient evidence of the matters raised by SS in defence of the claim, that TBH was in contravention of section 42 of the QBSA Act or that TBH had already been paid for the subject works.
It follows that TBH is entitled to recover from SS its filing fee of $255.00 and interest at the rate of 10%. It is almost 2 years to the day since the invoice was issued, I therefore allow interest at the standard rate of 10% per annum for 2 years in the sum of $5,000.00. The claim of $25,000.00 plus interest of $5,000.00 and filing fee of $255.00 comes to the sum of $30,255.00. This amount is to be paid by the respondent, SS, to the applicant, TBH, by 30 June 2012.