Value Tiles Wholesale Pty Ltd v RJ & KE Driscoll as trustee of the Edwin Holdings Superannuation Fund
[2013] QCAT 323
•5 July 2013
| CITATION: | Value Tiles Wholesale Pty Ltd v RJ & KE Driscoll as trustee of the Edwin Holdings Superannuation Fund [2013] QCAT 323 |
| PARTIES: | Value Tiles Wholesale Pty Ltd (Applicant) |
| v | |
| RJ & KE Driscoll as trustee of the Edwin Holdings Superannuation Fund (Respondent) |
| APPLICATION NUMBER: | BDL281-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 20 June 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 5 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1.That the Applicant, Value Tiles Wholesale Pty Ltd pay to the Respondent, RJ & KE Driscoll as trustee of the Edwin Holdings Superannuation Fund the sum of $24,566.76. 2. That the said sum be paid within 28 days from the date hereof. |
| CATCHWORDS: | BUILDING MATTERS - Where applicant was a tile company and was not a licensed builder entered into a contract to perform building works - where no written contract - where the works were defective - measure of loss for defective works. Queensland Building Services Authority Act 1991 s 43(4). |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Steven Jewitt, director |
| RESPONDENT: | Mr Raymond Driscoll, Trustee |
REASONS FOR DECISION
Background:
The setting is a Motel complex at St George. It would seem that the complex was in need of renovation and the owner, the Superannuation Fund, and in particular, Mr Driscoll set about getting that done.
A large part of the works consisted of tiling and the first part of the contract between the parties related purely to the provision of tiles, with Value Tiles agreeing to supply some 100sqm’s for the project. From there the extent of the agreement of the parties expanded with Value Tiles agreeing to provide the laying of the tiles and later agreeing to provide a range of bathroom and toilet fittings.
The initial problem that arose, as a result of this agreement was that Value Tiles was not a licensed builder and could not legally contract to do the work. The second problem was that there was no attempt to reduce the contract to written terms. An inevitable result of such an arrangement is that there is confusion as to the actual terms that were agreed.
A classic example of this lack of agreement was the issue of whether the tiling in the bathroom and toilet of the residence occupied by the Licensee, Mr Wilson, but owned by the Superannuation Fund was included. That issue will be dealt with later in this decision.
Evidence:
The evidence consisted of a number of written statements provided by each party plus 2 expert reports produced for the Respondent Superannuation Fund. Oral evidence was limited to Mr Driscoll, his Lessee Mr Wilson, both for the Superannuation Fund and Mr Jewitt for Value Tiles.
The parties sought to raise evidence about a number of technical aspects of the specialists’ report. In particular they were concerned with aspects of the relevant Australian Standards. However, at the end of the day Mr Driscoll agreed that these issues were not relevant to the actual remedy he was seeking, namely compensation for repair costs and associated expenses.
To reduce the areas of this disagreement even further Mr Jewitt conceded that aspects of the work were substandard and that it was a reasonable unto allow a sum for repair costs.
The Application:
In short the Application was filed by Value Tiles for money said to be outstanding under the contract. It is important to note that despite the lack of an appropriate licence Value Tiles is entitled to recover “reasonable remuneration”[1]. Effectively this is limited to the actual costs incurred and does not include any profit component.
[1] Queensland Building Services Authority Act 1991 s 42(4).
On this basis the sum of $22,909.47 was said to be owed. Mr Driscoll conceded, on a purely mathematical basis, that this figure is accurate. In a general sense he did ask questions and led evidence suggesting that the claim was inflated and that the invoices provided were not true representations as to what was actually owed.
I must admit to wondering why Mr Jewitt did not produce bank records demonstrating payments which could easily have put this matter beyond doubt. Further I am told that it was agreed that such documents would be produced. Nevertheless it does not appear to have ever being reduced to an order, so I am not prepared to draw an adverse inference from this. Overall I am satisfied that the amount claimed in the Application is accurate.
Counter-Application:
The factual basis for this is set out in the file document which claims monies allegedly paid under mistake of fact together with unspecified damages.
The cause of action for the mistake does not appear to have been pursued and even if it was does not seem to be sustainable. Clearly the Superannuation Fund is entitled to recover damages for substandard work.
The damages claimed are set out in a document[2], and total $63,029.90. Mr Driscoll confirmed that this was the damages that he was seeking in respect of the matter, from the Tribunal. He did note that since compiling that list he had incurred further expenses and there was work that had still to be rectified, however, he did not lead any evidence about such further expenditure.
[2] See Exhibit 5.
So far as the additional rectification work is concerned I understand this to be some tiding up around the vanity units installed inside of the Units. In the absence of any evidence to the extent of these I am unable to make any findings in respect of those expenses for unperformed works.
Legal Costs:
Two items in respect of the sum claimed relate to legal costs incurred. These are sums paid, to what are described in Exhibit 5, as “Hopgood” and “Mills Oakley” totalling $9,630.67. Neither of these items are the subject of anything in the way of evidence or submissions. There are invoices showing that expenditure had been incurred that were produced. The closest that anyone came to submissions on this point was Mr Jewitt’s comment was that he thought legal costs were not allowed in this jurisdiction. In fact it is quite clear that these are discretionary however these did not seem to be a case where the exercise of that discretion in the favour of granting of costs is appropriate. Both sides incurred legal costs and neither was in fact legally represented in the hearing and neither obtained leave to be legally represented. Further the issues at the end of the day proved to be relatively simple. I am not convinced that any of the factors set out at Section 102 of the QCAT Act have been demonstrated. It is a case where application of the ordinary presumption, contained in Section 100 of the QCAT Act namely that each party should bear its own costs, should be applied. In other words, no allowance in respect of the claim to costs will be allowed.
Poulsons:
This is a cost incurred by the super fund in obtaining an expert opinion about the quality of the tiling. Essentially, it seems that this is a witness expense as a report was prepared solely for the purpose of this proceeding. This is ordinarily, what would be a disbursement, forming part of any costs order that may be made, and on that basis it is also not allowed as there is no provision for costs.
Hoges Handy Supplies:
I am told that this was a cost paid for joinery, being towel holders, the provision of which was necessary as a result of the vanities being 750mm in size rather than 900mm. The evidence surrounding this point was contentious, with Mr Driscoll arguing that he was given no choice but to accept the smaller vanities and Mr Jewitt arguing that Mr Driscoll had accepted them and had allowed them to be installed.
In this respect I would have thought there was some substance to Mr Jewitt’s argument. Clearly Mr Driscoll, or his onsite representative, could have elected to reject the items but did not do so. Additionally, if an allowance was to be made for this then it would be necessary to take into account the fact that if 900mm vanities had been provided rather than the 750mm ones they would presumably would have come at a greater cost. I do not have evidence as to what this additional cost might be. In circumstances no allowance will be made in relation to this sum.
Mitre 10 and Stratco:
These two sums represented a claim for the provision of materials to replace towel racks, toilet roll holders, taps and shower fittings, provided by Value Tiles. Quite clearly there is no written agreement as to the quality of the items to be provided pursuant to the contract. Equally clearly, however, the use was commercial in nature. I was shown a towel rack and a shower head that appeared to be of extremely low grade domestic quality. In my view they were quite unsuitable for use in a commercial setting.
It should be noted that the costs of the ones actually provided is included in the Application by Value Tiles so it seems appropriate to allow the full costs of rectification. This is done on the basis that, it is appropriate, to imply a term into the contract between the parties that the goods be reasonably fit for the purpose for which they are provided. This was not the case.
The whole of these two claims, in the sum of $2,390.70 and $486.00 will be allowed.
Tradelink:
The original agreement between the parties with regard to the replacement toilet systems is that they would all be porcelain as the original ones were. One could say that was a fair degree of certainty, particularly, in the circumstances where that was what was initially provided. However, it would seem that Mr Noy, who was engaged to perform works on the site, was unable to fit these to all units and accordingly Mr Jewitt supplied replacement plastic cisterns for some Units. He agrees that he did not consult with Mr Driscoll prior to doing this but argues that the fitting of them constituted acceptance.
Part of the decision in this respect comes down to a consideration of Mr Noy’s role in the whole project. He was a handyman, effectively, charged with doing a lot of what might be ordinarily be a plumber’s role and, perhaps, partly what might be a builders role, replacing the fittings in the Unit. In short, Mr Jewitt says that Mr Noy was employed by Mr Driscoll and Mr Driscoll says that he was employed by Mr Jewitt. It is common ground that he was paid by Mr Driscoll but at least in one view this was only because Mr Jewitt failed to pay him.
It is difficult to reconcile the differences of the evidence of the two parties on this point. In circumstances probably the best source of information is Mr Noy himself who states that he was approached by Mr Jewitt, as he had done a lot of work for him. Further he took instructions from Mr Jewitt, or presumably his agents on site. He apparently expected to be paid by Mr Jewitt and only approached Mr Driscoll when that was not occurring. In all relevant respects then it seems he was engaged by and answerable to Value Tiles. In those circumstances the request by him for replacement cisterns cannot be seen as a request on behalf of the Superannuation Fund. Equally as Mr Noy performed the installation that cannot be said to be seen as acceptance as he was not the agent of the Superannuation Fund.
In those circumstances the change to plastic cisterns is purely unilateral and is not enforceable against the Superannuation Fund. Hence, in my view, it was entitled to remedy the breach of contract by Value Tiles.
I would also note that, in passing, that despite Mr Jewitt’s state of belief that the cistern could not be replaced by porcelain ones, quite obviously that belief was misplaced. Mr Driscoll obviously had no problems having porcelain cisterns fitted throughout.
In the circumstances I will allow this claim in full in the sum of $9,037.86.
Beenleigh Tiles and Sunstate Tiling:
It seems appropriate for these to be dealt with together as they both involve a common finding with regard to the extent of the contract between the parties.
The real issue here relates to extra tiling in respect of the premises occupied by Mr Wilson. The evidence of Mr Driscoll is that it was agreed that this would be done in exchange for free accommodation and dinner for Value Tiles’ workers on site. Mr Jewitt essentially agreed with this position except to say that the arrangement was also to include breakfast.
The substantial difference between the parties was that Mr Jewitt said this was an agreement directly with Mr Wilson for Mr Wilson’s benefit and presumably, he would argue, not enforceable by the Superannuation Fund.
The problem with this argument is that it is clear that the quantity of tiles purchased was intended to cover this aspect of the work as well. These tiles were ordered and paid for by Mr Driscoll. Additionally the Superannuation Fund is the ultimate owner of the premises and hence the recipient of the primary benefit. Of course there would be some benefit to Mr Wilson as well.
I cannot see that this could have amounted to an entirely separate contract and it seems that the more likely situation was that Mr Wilson entered into the contract as an agent for the owners of the premises and purchasers of the tiles, mainly the Superannuation Fund.
Mr Jewitt also complains about the quality of the accommodation, and that breakfasts were not provided. Nevertheless it seems common ground that there was substantial fulfilment of the contract. It is perhaps arguable that there was a breach which may have entitled Value Tiles to damages, however no evidence of loss was led. In any event this would have been a small claim. In the circumstances I am satisfied that the tiling of the Lessee’s premises formed part of the contract between the parties.
Accordingly, I would allow both of these claims in full, namely a total sum of $32,069.98.
Merino Motel:
This was in respect of an invoice raised by Mr Wilson, apparently relating to accommodation and meals workers utilised during the rectification work. This claim was supported by tax invoices and bank records. Accordingly, no matter how suspiciously one might view this, it appears that it is an expense actually incurred.
The issue that may arise is whether there were local tradesmen that could have performed the work without the necessity of incurring this expense. However, one can only assume that there was not such tradespeople available, particularly having regard to the fact that these costs were also factored into the original contract between the parties albeit in a different way.
In the circumstances I will allow this claim in full.
St George Freight:
Similarly this claim was supported by tax invoices and bank documents. The only evidence on this claim was that it was related to the necessity to perform rectification works and no evidence to contrary was led.
Accordingly I will also allow this in full.
MW Pezet:
The sole remaining issue for consideration is the claim relating to Mr Pezet’s wages. It would seem he is a builder. Whilst his tax invoices do not include a breakdown of the work he actually performed, it is quite apparent there are numerous tasks he could have performed, including removal of old fittings and installing of new ones.
The principle argument advanced on behalf of Value Tiles was that the licencing laws required these tasks to be performed by a licenced plumber and Mr Pezet was not one. I was not given any detailed information about the present licencing requirements and how they impact upon the performance of these tasks. It would seem to me, however, regardless of whether there may have been a breach of relevant laws which could leave the parties open to prosecution it was for work done and paid for as a result of the poor quality of the work performed initially pursuant to the contract.
The one rider to this was that on, at least 2 occasions, during the course of his evidence Mr Driscoll advised that a part of the duties performed by Mr Pezet was supervising the overall job. No details of the specifics of this nor was any evidence of the need ever led.
I am not satisfied that it was appropriate to engage a builder with no tiling qualifications to supervise what was almost exclusively a tiling job. Some reduction for this part of the claim seems appropriate and in the circumstances the sum of $6,000 will be allowed.
I will therefore allow the Counter-application in the total sum of $47,476.23.
Orders:
I would therefore make the following Orders:
1. That the Applicant to pay to the Respondents the difference between the amount allowed in respect of the Application and the amount allowed in respect of the Counter-Application, namely the sum of $24,566.76 and I would Order this sum be paid within 28 days.
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