Wayne Fox Building Contractors Pty Ltd v Gibbs

[2013] QCAT 367

CITATION: Wayne Fox Building Contractors Pty Ltd v Gibbs & Anor [2013] QCAT 367

PARTIES:	Wayne Fox Building Contractors Pty Ltd (Applicant)
v
John Gibbs (First Respondent) Phillip Stubbs (Second Respondent)

APPLICATION NUMBER: BDL171-12

MATTER TYPE: Building matters

HEARING DATE: 17 May 2013 & On the papers

HEARD AT: Brisbane

DECISION OF: Michelle Howard, Member

DELIVERED ON: 4 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

The proceeding is dismissed.

CATCHWORDS: BUILDING CONTRACT- where builder claims amount in excess of provisional sum- where homeowners claim contract did not include provisional sum-where inconsistent versions of contract schedule

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Peter Nisbitt represented Wayne Fox Building Contractors Pty Ltd

FIRST RESPONDENT:

SECOND RESPONDENT:

Mr Cliff Goghlan represented John Gibbs

Mr Phillip Stubbs appeared on his own behalf

REASONS FOR DECISION

1. Wayne Fox Building Contractors Pty Ltd was engaged by Mr Gibbs and Mr Stubbs to perform some building work at their adjoining home units. Wayne Fox Building Contractors claims $8,898.38 in equal shares from Mr Gibbs and Mr Stubbs. The claim is for electrical work not covered by the provisional sum that Wayne Fox Building Contractors asserts is nominated for electrical work in the building contracts, together with some costs and interest he has incurred as a result of their alleged failure to pay.

2. It appears from the response and counter-claim document filed by Mr Gibbs and Mr Stubbs that a counter-claim was made for alleged defects. At the hearing they clarified that no counter-claim is made. They seek only the dismissal of the claim made by Wayne Fox Building Contractors.

3. The parties entered into written contracts. Confusingly, there are several executed contract schedules between Wayne Fox Building Contractors and each of the respondents[1] provided to the Tribunal by Wayne Fox Building Contractors, each for a slightly different total price. One of the contract schedules (between them and Mr Stubbs) is not dated, but is signed. Wayne Fox Building Contractors says the respondents executed the contracts on the same day, which suggests that they were all executed on 12 September 2010. In any event, the provisional sum for electrical items nominated in each of the contract schedules relied upon by Wayne Fox Building Contractors is $2,000.

   [1]        Exhibits 4, 8 and10.

4. Wayne Fox Building Contractors says that under the contracts, the homeowners are required to pay all reasonable amounts in excess of the provisional sum. He says it is reasonable for the homeowners to pay, essentially because it was at Mr Gibbs suggestion that Stu’s Electrical was engaged as the electrical contractor, and that the homeowners then, in his absence and without his knowledge, instructed Stu’s Electrical to do work over and above what the provisional sum anticipated. At the hearing, Mr Stubbs denied knowledge of any previous dealings between Mr Gibbs and Stu’s Electrical. Mr Gibbs was not personally present due to health issues and did not respond to the witness statement of Wayne Fox[2] setting out this allegation.

   [2]        Exhibit 10.

5. Wayne Fox Building Contractors provided evidence of serving its material on the respondents, but they denied receiving it, or, at least, in Mr Gibbs case, Mr Coghlan had not been given it by Mr Gibbs. Wayne Fox Building Contractors had not received copies of any of the material filed by the respondents. They did not suggest that they had in fact given copies to him.

6. Although the Tribunal directed Mr Gibbs and Mr Stubbs to file their witness statements and other material to be relied upon at hearing by 15 November 2012, the relevant material they filed before hearing was limited, and the only brief witness statement from either of them was undated and unsigned. At hearing, Mr Stubbs identified it as his statement. They also filed several statements of Mr Coghlan and some other material which could only possibly be relevant to defect claims which they do not pursue.  

7. During the hearing, Mr Gibbs representative handed up yet another version of contract schedules,[3] which he and Mr Stubbs now say are the contracts between the parties, while suggesting that the version presented to the Tribunal by Wayne Fox Building Contractors has been altered because their own now produced copies do not include any provisional amount for electrical work. This significant point was not revealed by the material earlier filed by them or by Mr Stubbs witness statement. However, the evidence is of such potential significance that, despite its late provision in non-compliance with the Tribunal’s earlier directions, for reasons of natural justice, the respondents should be allowed to rely on it.

   [3]        Exhibits 18 and 19.

8. Because the versions of the contract relied upon by Mr Gibbs and Mr Stubbs do not refer to a provisional sum for electrical work, they say that therefore all of the work done is the responsibility of Wayne Fox Contractors. They also say that they paid for extra electrical work separately and provided a brief statement from Stu’s Electrical to this effect. Mr Stubbs provided an invoice from Stu’s Electrical for ‘extras’. Mr Stubbs also provided a copy of an invoice and cheque for the amount of $825[4] for electrical work paid for directly by him.

   [4]        Exhibits 11 and 14.

9. They also suggest that they are not responsible for the amount claimed because an adjudicator previously held that the builder was responsible to pay Stu’s Electrical the outstanding amount and costs. The adjudication was then registered by Stu’s Electrical in the Magistrates Court.[5] However, this adjudication was as between a building contractor and sub-contractor. The success of the sub-contractor in that proceeding is not an indication as to responsibility for the account as between the builder and the homeowners.  

   [5]        A copy of the order was provided by Wayne Fox Building Contractors at Exhibit 10.

10. Mr Stubbs also said that he had tried to contact Mr Fox, director of Wayne Fox Building Contractors, on many occasions without success. This self-serving statement seemed somewhat at odds with the apparent lack of effort put into responding to the claim. Mr Fox has provided numerous detailed statements and other supporting material. It is clear that he endeavoured to ascertain which witnesses the respondents wanted to cross-examine at the hearing,[6] but received no response from the respondents.  On the other hand, the respondents appear to have made little effort to comply with the Tribunal’s directions or engage in the proceedings, only at the hearing providing the most significant material upon which they rely.

    [6]        Exhibit 7.

11. There is no dispute that the work for which the Stu’s Electrical invoice at the heart of the dispute relates was in fact done. The total amount claimed for payment by Stu’s Electrical for the work done is $7,634, including GST. An invoice and breakdown of the work done is at Exhibit 6. Wayne Fox Building Contractors was ordered by an adjudicator, as discussed earlier, to pay Stu’s Electrical $8,898.38, which is $7,634 plus an amount for costs and interest. He now claims this whole amount.

12. Mr Fox was unable to be personally present at the hearing. He was overseas on an oil rig for work and his request for an adjournment of the hearing so that he could personally attend had been earlier refused by a Senior Member of the Tribunal. His representative was unable to respond to the serious allegation that the copies of the contract he relied upon were not the final versions and had been altered in some way.

13. Therefore, on 17 May 2013 the proceeding was adjourned part-heard to a date to be fixed. It was listed for a directions hearing to ascertain when Mr Fox may be in Australia and/or able to respond to the allegations belatedly made by the respondents. Directions were made at the directions hearing for the filing of further material and submissions and for the further hearing of the proceeding on the papers without further oral hearing, not before 2 July 2013.

What did the contract provide in relation to a provisional sum for electrical work?

1. I have before me in all three versions of contract schedules executed by Wayne Fox Building Contractors and each of the respondents.

2. In respect of Mr Gibbs, these are contained in exhibits 4, 8 (another apparently identical copy of the version found at Exhibit 8 is at Exhibit 10), and Exhibit 19. Exhibit 19 is a pink duplicate copy of the original schedule. All other versions are photocopied versions of the schedule. Each of them is dated 12 September 2010.

3. The various versions provide for the following:

   Exhibit Number    Total Contract Price     Provisional Sum (Electrical Work)

   Exhibit 4                    $77,790  $2,000

   Exhibit 8  $76,320  $2,000

   Exhibit 19                  $76,320  None provided for

4. In respect of Mr Stubbs, these are contained in exhibits 4, 10 and Exhibit 18. Exhibit 18 is a pink duplicate copy of the original schedule. All other versions are photocopied versions of the schedule. The copy at Exhibits 4 and 18 are undated, while the copy at Exhibit 10 is dated 12 September 2010.

1. The various versions provide for the following:

   Exhibit Number    Total Contract Price     Provisional Sum (Electrical Work)

   Exhibit 4                    $76,320  $2,000

   Exhibit 10                  $77,790  $2,000

   Exhibit 18                  $77,790  None provided for

2. Some of the contract schedules have a ‘Provisional sums schedule’ attached to them. In particular, the copies of the contract schedule with Mr Gibbs which are at Exhibits 4, 8 and 10 attach a provisional sums schedule indicating that 12 down lights; 3 flouros; 4 double GPOs; 2 phone and 2 TV points are included in the provisional sum. The pre-contract correspondence from Wayne Fox Building Contractors[7] suggests that those items were to be covered by a provisional sum of $1,200, rather than $2,000, as now claimed.

   [7]        See Affidavit of Linda Dick filed on 28 May 2013.

1. The contract schedule for Mr Stubbs’ contract which is at Exhibit 4 attaches a provisional sum schedule itemising the same electrical work. However, the version of the contract schedule for Mr Stubbs at Exhibit 10 does not attach a provisional sum schedule. Exhibits 18 and 19, being the pink duplicate copies relied upon by Mr Gibbs and Mr Stubbs do not attach provisional sum schedules.

1. That said, although Wayne Fox Building Contractors provides copies of various letters about proposed inclusions at various stages of pre-contract negotiations,[8] none is dated close to 12 September. What negotiations there may have been about provisional sums in the weeks immediately before the contract was signed is not apparent.

   [8]        See Affidavit of Linda Dick filed on 28 May 2013.

1. A copy of Stu’s Electrical final invoice[9] sets out a breakdown of works ultimately done and charged to Wayne Fox Building Contractors. The breakdown for each unit includes 17 down lights; 1 push timer; 10 double power points; 2 single power points; 1 A/C point; 3 TV points; 2 phone points; 3 two way switches; 2 smoke alarms; switchboard alterations; intercom alterations and mains alterations at front (shared cost).

   [9]        Exhibit 6.

1. Mr Fox had earlier sworn an affidavit to the effect that the versions at Exhibit 4 are the contracts relied upon, although Wayne Fox Building Constructions also filed the versions at Exhibits 8 and 10 in support of the claim. 

2. In response to the tendering of Exhibits 18 and 19 by Mr Gibbs and Mr Stubbs, Wayne Fox, director of Wayne Fox Building Contractors, says essentially that Mr Gibbs and Mr Stubbs kept changing their minds about what they wanted and that as a result various drafts of the contract were produced before the terms were finally agreed. This does not explain why exhibits 8 and 19 which otherwise appear to be identical and which are both executed, are different in that the pink original copy does not contain a provisional amount, but the photocopy does and the change has not been initialled on the photocopied version. Similarly, it does not explain the similar discrepancy regarding the provisional sum in Exhibits 10 and 18 with respect to a version of the contract with Mr Stubbs, which also appear to be otherwise identical and are both executed copies.

1. Also, Mr Fox’s recent material has not clarified why there are apparently multiple contracts executed on the same day and which version is said to be the final version: he appears to rely upon copies of the final contracts being certified by a Justice of the Peace. The certified copies are at Exhibit 8. Certification only confirms that the photocopy provided is a true copy of a sighted original. It does not assist in relation to the issues of concern to me. In any event, both certified copies provided are of a version of the contract with Mr Gibbs.

1. Mr Gibbs and Mr Stubbs suggest that deliberate alterations may have been made to insert provisional sums.

1. It is apparent from the statements relied upon by Wayne Fox Building Contractors that the negotiations before the contracts were signed were fraught and somewhat complicated. I accept that Mr Gibbs and Mr Stubbs did change their minds numerous times and that numerous versions of the contract were drafted, and that some correspondence referred to a provisional sum for electrical work. That does not explain what was finally agreed. Further, those difficulties continued once the works were underway and were done, with numerous changes being required by Mr Gibbs and Mr Stubbs to the agreed works.

1. It is also apparent that the electrical works done are rather more extensive than the works specified in the provisional sums schedules attached to some of the contract schedules, if they represent the final version of the agreement. That said, it appears from the pre-contract correspondence that it had been earlier anticipated that a provisional sum of $1,200 would be included to cover the electrical work specified in the provisional sums schedules relied upon.

1. Under clause 15 of the General Conditions to the contracts, if no provisional sum was included in the contract, then Wayne Fox Building Constructions was obliged to do the work agreed for the cost stipulated as the contract price. If a provisional sum was provided for and the cost reasonably exceeded the provisional sum, then Clause 15 provides for the homeowner to pay the additional amount incurred.

1. I adjourned the proceeding part-heard specifically to allow Wayne Fox Building Constructions the opportunity to give me any additional evidence it relied upon, following the matters raised by Mr Gibbs and Mr Stubbs at the hearing on 17 May 2013 including the belated tendering of the pink copies of the schedule relied upon by them and the allegations that the contract schedule may have been altered. The explanation offered does not assist in relation to determining the contract terms as finally agreed by the parties, nor explain the discrepancies between the pink copies of the schedule and the photocopy versions which are otherwise identical.

1. I must decide the claim based on the evidence placed before me. For Wayne Fox Building Constructions to succeed on their claim in whole or in part, I must be reasonably satisfied that monies claimed are owed by Mr Gibbs and Mr Stubbs because additional works were instructed over and above the provisional sum. I am not reasonably satisfied of this on the basis of the evidence.

1. On the basis of the inconsistent documentary evidence before me, and any adequate explanation about what occurred leading to the various versions, and why it is asserted a particular version is the final version representing the contract between the parties, I am not reasonably satisfied that the contracts entered into contained a provisional sum. There are inconsistent versions dated the same day, and no explanation about how this occurred, which may place me in a position of being satisfied which of them is the final version.

1. In particular, I refer, in addition to the inconsistencies between Exhibits 18 and 19 and the versions of the contract schedule provided by Wayne Fox Building Contractors, but also to the versions of the contract schedule for Mr Stubbs provided by Wayne Fox Building Contractors at Exhibits 4 and 10 (one of which has a provisional sums schedule and one of which does not have a provisional sums schedule). Nor am I satisfied about the extent of the electrical work agreed to be included, whether or not a provisional sum was a term of the contract in light of the pre-contract correspondence which indicates that the items set out in the provisional sums schedules was to attract a provisional sum of $1,200, not the $2,000 now asserted. I make the observation that it is irregular to have multiple executed contracts between a contractor and a homeowner.

2. The application should be dismissed.  For completeness, given that the response and counter-claim made by Mr Gibbs and Mr Stubbs on its face contains a counter-claim, the proceeding will be dismissed.

1. For completeness, I make the following observations. If there was no provisional sum provided, it seems to me that Wayne Fox Building Contractors may still have a claim if the homeowners instructed additional electrical works, over and above those agreed to be provided as part of the contract. However, this alternative basis for the claim does not appear to be relied upon by Wayne Fox Building Contractors, which asserts that a provisional sum was included. In any event, given the state of the evidence before me, even if I was satisfied that the contract did not include a provisional sum, the evidence provided would not place me in a position that I could make findings about the extent of the electrical works the parties agreed were to be provided as part of the contract. The claim would still fail.