Urguhart v Partington
[2012] QCAT 353
| CITATION: | Urguhart v Partington and Anor [2012] QCAT 353 |
| PARTIES: | John Urguhart t/as Hart Renovations |
| v | |
| Philip Partington Evelyn Partington |
| APPLICATION NUMBER: | BDL072-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 27 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The applications for production of documents are refused. |
| CATCHWORDS: | BUILDING – NOTICES TO PRODUCE – whether notices to produce should be issued |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
In a familiar tale in the building jurisdiction of this tribunal, John Urguhart t/as Hart Renovations claims a significant sum due under a building contract and Mr and Mrs Partington have counterclaimed for defective work, unapproved variations and damages for late completion.
The dispute has been referred to at least five compulsory conferences and five expert conclaves. It was listed for hearing in June 2011 but the hearing was adjourned because the parties wanted to produce more evidence. There are now at least ten volumes of documents before the tribunal.
On 21 November 2011, the dispute was listed for a five-day hearing commencing 27 August 2012. On 7 June 2012, the parties were directed to file a hearing plan. The only matter outstanding is the delivery of the experts’ joint report.
In late June/early July 2012, Mr and Mrs Partington filed three applications for miscellaneous matters. Each of them is an application for the production of more material. I understand Mr and Mrs Partington’s anxiety about the hearing as it nears. This dispute is obviously very important to them. It involves their family home and very large amounts of money. They no longer have the assistance of their lawyer. Nevertheless, the applications are refused for the following reasons.
The application against John Urguhart
Mr and Mrs Partington want Mr Urguhart to produce: copies of all contracts he was engaged in between August 2008 and January 2010; copies of all time sheets for employees and contractors; and documentation that Mr Urguhart had the appropriate assets or insurance in accordance with the requirements of his licence between August 2008 and January 2010.
Mr and Mrs Partington say that the first two classes of documents are necessary because Mr Urguhart did not complete the building work within the time nominated in the contract and the information will assist Mr and Mrs Partington to determine whether Mr Urguhart suspended works or breached the contract. They say that it will also serve to clarify inconsistencies in Mr Urguhart’s evidence.
The contract sets out the grounds on which Mr Urguhart can claim an extension of time. It is up to him to provide the tribunal with sufficient evidence to justify such a claim but it will not be enough for him simply to claim that he was engaged somewhere else and ran out of time to complete this job. The number of contracts Mr Urguhart was engaged in is irrelevant as is his employees’ timesheets. Even if they were relevant, which I doubt, it is unlikely that Mr Urguhart has any ability to provide copies of his contractors’ timesheets, given they are, in all probability, independent operators.
Mr Urguhart is claiming default interest on an unpaid payment. To the extent that this relates to wages, it is for him to satisfy the tribunal that the wages have been paid, and when.
Similarly, the grounds for Mr and Mrs Partington’s claim for delay damages are set out in the contract. Once they have demonstrated a delay, Mr Urguhart will have the task of explaining why he should not be liable for that delay. Again, it is not relevant that he may have been engaged in other work on other sites.
[10]The administration of licences is a task that lies with the Queensland Building Services Authority. If Mr and Mrs Partington suspect that Mr Urguhart did not comply with the licensing requirements at any relevant time, the proper course of action is to advise the Authority so that it can carry out the necessary inquiries.
[11]I understand that Mr and Mrs Partington are concerned that Mr Urguhart may not have the funds to pay any order of this tribunal. That is a risk of litigation. Mr and Mrs Partington may conduct searches of the public records to determine his ability but, prior to any determination and enforcement proceedings, Mr Urguhart is not required to disclose his financial affairs to Mr and Mrs Partington or the tribunal.
The application against A Accurate House Restumping
[12]Mr and Mrs Partington want A Accurate House Restumping to provide: a copy of the signed contract with Mr Urguhart; evidence of the date Mr Urguhart paid the deposit on that contract and how it was receipted; when a facsimile from Mr Urguhart accepting a quote for works was receipted by A Accurate House Restumping; evidence as to when Mr Urguhart ordered steel for the work; and evidence about the original scheduled commencement date.
[13]Mr and Mrs Partington say that this material is necessary because Mr Urguhart’s evidence about the appointment of A Accurate House Restumping has been contradictory. They also say that this material will provide evidence in support of their contention that they signed the contract under duress. Finally, they say this material will clarify whether A Accurate House Restumping or Mr Urguhart is responsible for a fault in the installation of beams and columns.
[14]At a directions hearing on 18 July 2012, Mr and Mrs Partington confirmed to me that they are not seeking any relief in relation to their alleged coercion into the contract. That being so, evidence about it is relevant only in relation to the credit of the parties. There will be ample opportunity for the tribunal to test the truthfulness of the parties without having to explore this irrelevant issue.
[15]Mr Urguhart, as builder, is responsible for the work of his subcontractors. If the beams and columns were not installed correctly, he will be liable. Whether he has a claim against A Accurate House Restumping should not concern Mr and Mrs Partington.
The application against Instyle Interiors
[16]Mr and Mrs Partington want Instyle Interiors to supply: all documents associated with the provision of goods and services for the contracted works; a detailed price list for goods supplied as part of a purchase order dated 1 April 2009; copies of invoices submitted to Mr Urguhart for work done; a copy of notice of when Mr Urguhart notified it that work had ceased; evidence that it provided a credit to Mr Urguhart; evidence as to which quote formed part of the contract.
[17]Mr and Mrs Partington say that these documents are required because they want to verify the costs claimed by Mr Urguhart. They say, also, that Instyle Interiors has provided them with contrary information about credits.
[18]The time for filing of statements has long since passed and I can find no statement on file from anyone representing Instyle Interiors. Mr and Mrs Partington had the assistance of lawyers when they filed their statements in support of their claim. If this information was important, it should have been reduced to a statement, with copies of relevant documents annexed, much earlier than this late application. The application appears to be a resort to minutiae to “make sure that no stone is left unturned.” That is not the function of notices to produce.
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