West Roofing and Plumbing Pty Ltd v JBBK Construction Pty Ltd
[2025] QCAT 416
•28 January 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: West Roofing and Plumbing Pty Ltd v JBBK Construction Pty Ltd [2025] QCAT 416 PARTIES: WEST ROOFING AND PLUMBING PTY LTD (applicant) v JBBK CONSTRUCTION PTY LTD (respondent) APPLICATION NO/S: BDL058-23 MATTER TYPE: Building matters DELIVERED ON: 28 January 2025 HEARING DATE: 12 November 2024 HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: The Application for commercial building disputes is dismissed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – where the builder was claiming for a Variation for works done as a subcontractor – where a draft Subcontract in writing was exchanged between the parties – where the draft Subcontract in writing was not signed by both parties – whether a
Subcontract that was not in writing and signed by both parties was void or voidable – whether the terms of the draft Subcontract were enforceable – where there was no Variation in writing signed by both parties – whether the claimed Variation was effective – where the builder had
signed a Deed of Release Queensland Building and Construction Commission Act 1991 (Qld), s 67D, s 67E, s 67G; Schedule 1B s 3, s 5, s
14(10); Part 4ACerda v Jacob [2020] QCATA 57 Clarke v Queensland Building and Construction Commission [2020] QCAT 88 APPEARANCES & REPRESENTATION: Applicant: Self-represented by its Director, Tony West Respondent: Self-represented by its Director, Brett King REASONS FOR DECISION
JBBK Construction Pty Ltd (‘the builder’) engaged West Roofing and Plumbing Pty Ltd (‘the roofer’) to perform work as a Subcontractor on the construction of a service
station at 68 Albion Street, Warwick in the State of Queensland.
A draft written Subcontract number 21-001-R, dated 28 April 2022, was prepared by the builder. The Subcontract incorporated Australian Standard Subcontract conditions
AES 4901 – 1998 (incorporating amendment nos. 1 & 2).
The roofer made proposed amendments to the draft Subcontract, and returned it to the builder. The builder alleges that it accepted and signed the amended Subcontract and provided a copy to the roofer, and placed a copy onsite. The roofer says that it did not receive, and did not sign, the amended Subcontract.
The roofer proceeded to conduct work in apparent accordance with the Subcontract, and conducted work that it now argues constituted variations, notwithstanding the absence of a written contract signed by both parties.
This dispute concerns payment for metal flashing of the power truss surrounding the canopy and linkway. It is not disputed that the roofer conducted that metal flashing work, and there is no dispute as to the quality of the work.
The issue in this matter is whether the metal flashing to the power truss is work under the original Subcontract and no amount is due in respect of it; or whether it constitutes a Variation to the original proposed work for which additional payment should be made.
The builder also relies on a Deed of Release dated Tuesday, 26 September 2023 which was signed by Mr West for the roofer.
The roofer claims the amount of $28,775 plus GST (a total of $31,652.50) as a Variation for the flashing work, known as Variation 2 to the Subcontract, together with interest and costs.
There is no counter-application by the builder.
Evidence of the roofer
The roofer filed statements of evidence by three persons, on which it relied:
(a) Its director, Anthony West, dated 24 August 2023; 5 October 2023; and 14 February 2024; (b) Its office manager, Bradley Kennedy, dated 24 August 2023 and (c) Its Foreman, Joshua Mann, dated 24 August 2023.
The roofer advised that Mr Mann no longer worked for it at the time of the hearing, and was unavailable to attend the hearing and be cross-examined.
Oral evidence was given at the hearing by Mr West and Mr Kennedy, and they were cross-examined on their Statements of Evidence.
The roofer contended that as there was no written contract signed by both parties, the amended draft Subcontract could not be relied upon.
Evidence of the builder
The builder filed statements of evidence by two persons, on which it relied:
(a) Its director, Brett King, dated 28 January 2024 (b) Its director, Jeremy Braun, undated but attached to material filed on 7 September 2023.
Oral evidence was given at the hearing by Mr King and Mr Braun, and they were cross-examined on their Statements of Evidence.
The contractual situation
It is undisputed that no written Subcontract was ever signed by both parties. It is also undisputed that the parties conducted the work generally in accordance with the provisions of the amended draft Subcontract, and of the plans and specifications referred in and attached to it.
Section 67D of the Queensland Building and Construction Commission Act 1991 (‘the Act’) provides that a building contract is a subcontract if both the contracting party
and the contracted party for the contract are building contractors, and the contracted party is a subcontractor for the contracting party and the building work the subject of the contract is part of building work the subject of another building contract.
Section 67G of the Act (which is in part 4A) requires building contracts to be in writing.
Section 67E of the Act provides that unless a provision of Part 4A of the Act expressly provides that a building contract is void, then Part 4A does not have effect to make a building contract void or voidable.
[20] The Tribunal considered in Clarke v Queensland Building and Construction Commission[1] whether a regulated contract was of effect if it was not in writing, and concluded that by force of Section 14(10) of Schedule 1B of the Act there was no contract.[2] That matter concerned domestic building work.
[1] [2020] QCAT 88.
[2] Ibid at [23].
The Appeal Tribunal came to a similar conclusion in Cerda v Jacob[3] which also concerned domestic building work.
[3] [2020] QCATA 57.
Section 14 of the Act applies to a ‘Level 2 regulated contract’. As this was commercial
work, and involved ‘a contract between a building contractor and subcontractor’, it is not a ‘domestic building contract’ under Section 3 of Schedule 1B of the Act, and is not a ‘regulated contract’ under Section 5 of Schedule 1B..
As this is not a ‘regulated contract’, Section 14(10) of Schedule 1B of the Act does
not apply; and as no provision of Part 4A expressly provides that a Subcontract for commercial work is void if it is not in writing, Part 4A does not make a subcontract for commercial work that is not in writing void or voidable.
This matter then is to be determined having regard to basic principles of contract law. The authors of the text Construction Law in Australia[4] discuss those principles as follows:
[4] Ian Bailey, Matthew Bell, Catherine Bell, Construction Law in Australia (Lawbook Co, 3rd Edition, 2011) [5.2].
[5.2] In order to be legally enforceable, a ‘simple’ contract (being a bargain
between the parties with mutually-supporting promises) must satisfy certain technical legal requirements concerning its formation. For a contract to exist, there must be at least two parties who have achieved sufficiently certain agreement as to the respective rights and obligations, and to contemplate that such agreement will be protected, and if need be, enforced, by the law.
To establish the existence of a contract, courts typically look to a number of essential elements of formation. These are categorised in this text, as discussed below, as:
• intention to create legal relations • offer and acceptance • consideration
• capacity to contract Having said that, commentators, lawyers and parties often frame the elements in different ways; for example, certainty is sometimes seen as a separate element. Whichever mode of categorisation is used, however, the fundamental exercise is to analyse whether the parties have in fact agreed to contract with one another.
The parties clearly had an intention to create legal relations, and the roofer provided benefit by way of work completed to the builder who paid money in return. Neither party denies that their relationship was contractual in nature.
The same authors note that identifying the terms of a contract can be problematic:[5]
[5.13] Even where the existence of a contract is not disputed, the definition of the precise terms and their intended effect will often cause problems. A contract may be wholly oral, in which case, if there is a dispute, its terms are determined by evidence as a question of fact. Where the contract has been reduced to writing, it is usually a matter of construction of the terms, with the presumption,
known as the ‘parol evidence rule’, that the agreement is entirely reflected in
the written instrument. Sometimes, however – and this often applies in respect of building contracts, especially those using standard forms – the contract
document is not a complete record of the agreement, or it fails to record
particular statements that were meant to have contractual effect.[5] Ibid [5.13] p 85.
The authors go on to say that the terms of a contract may be determined having regard to the intention of the parties:[6]
[5.13] If a court is willing to ‘look outside the four corners’ of the written
contract to ascertain the agreed intent, it will first be necessary to determine what statements have been made, either orally or in writing. The second step will be to determine which of those statements were intended to have legal effect, and which were merely representations not intended to be part of the contract. It will also be necessary to consider what terms may be implied into the contract; and lastly, what relative importance is to be given to the terms of the contract.
[6] Ibid [5.13] p 85-86.
The authors of the text Brooking on Building Contracts[7] discuss the difficulty in ascertaining the terms of a subcontract where there is considerable written material and correspondence as follows:
[13.6] Frequently great difficulty is encountered in ascertaining the terms of a subcontract from a considerable body of correspondence which may, for
example, include the subcontractor’s original tender with printed conditions on
its reverse side, the letter accompanying the tender, which itself contains conditions (perhaps conflicting with those on the tender itself), a letter from the builder referring to conversations which have taken place with a view to reducing the price, a revised tender and accompanying letter, a printed form of order bearing printed and additional typewritten conditions and a letter accompanying the order.
It may also be necessary to consider conversations and a prior course of dealing. In major projects it has become common for prequalification submissions and meetings to take place, and post-tender, a series of tender clarification meetings might occur. What is discussed in such meetings, particularly if reduced to a set of minutes distributed to the parties, by email, text, instant messaging or otherwise, may have contractual significance.
[7] Damien Cremean, Michael Whitten QC, Michael Sharkey, Brooking on Building Contracts (LexisNexis Butterworths, 6th Edition, 2019) [13.6], p. 297.
The roofer identified in its revised quotation dated 28 February 2022 that the total
price of their quote ‘in accordance with documents January 2022’ was $233,830 plus
GST.[8]
[8] Letter West Roofing and Plumbing Pty Ltd to JBBK construction, 28 February 2022.
The roofer says that it amended the original draft and sent an unsigned amended
version to the builder. Mr West for the roofer says that ‘the further but unsigned but
substantially amended contract as per attachment 10 was sent by us on 10 May 2022
to the respondent’.[9]
[9] Statement of Anthony West dated 5 October 2023, [5].
The builder has filed a copy of a Subcontract No: 21-001-R which is signed by Mr King and Mr Braun for the builder and dated 9 May 2022.
It is not contended that the amendments to the draft subcontract made by the roofer materially affected or related to the specific issue of the flashing to the power truss which is the subject of this proceeding.
The builder contends that it accepted all the amendments proposed by the roofer, and signed the draft amended Subcontract, and sent a copy to the roofer and placed a copy onsite.
The roofer denies that it received the signed draft amended Subcontract back, or that a copy was placed onsite.
The roofer subsequently made a payment claim dated 25 October 2022. That claim
attached a payment schedule which referred to ‘Contract Sum’ for roof, gutters and
flashing, wall cladding, and soffit, in the sum of $233,830. The claim refers to Project
No F21-001.
The Project Number F21-001 referred to by the roofer on the payment claim is the same number as the draft Subcontract number 21-001-R, and whilst the letters in the descriptions are changed, the two documents are obviously intended to be related.
The work that was performed was generally in accordance with the plans attached to the draft amended Subcontract.
In this matter, it is apparent that the parties intended to conduct the works within the general wording of the draft amended Subcontract, in accordance with its plans referred to in it, and attached to it; and did in fact do so, notwithstanding that the draft amended Subcontract was not signed by both parties. The terms of their contractual relationship are therefore determinable by reference to the terms of the draft amended Subcontract.
I therefore conclude that whilst no written contract was signed, that the parties did agree, and intend, to abide by the terms of the draft amended Australian Standard Subcontract, and that those terms are to be given effect.
The work in question
A Tender meeting was held in the office of the builder on 24 February 2022. A written
record of the meeting headed ‘Minutes of Tender Interview’ was signed by the parties.
It noted in a section headed ‘Comments’ as follows:[10]
all allowance for all cladding exc all alluca/metal clad
[10] Summary Statement of the Roofer filed on 15 November 2023, Item 2.
The roofer sent a letter dated 28 February 2022 with their revised quotation for roofing and wall cladding for the job. The relevant parts of that letter were as follows:[11]
Quotation only revised 28/2/2022 – Roofing and Wall Cladding,
Proposed service station 68 Albion Street Warwick
In accordance with documents January 2022
Quotation includes
[11] Statement of Brett Anthony King dated 28 January 2024, attachment B.
•
1mm Surfmist, apron, capital, parapet, parapet cap, gutter flashing, wall flashing
Not including
…… Aluminium Cladding (Alucobond)
A letter was sent by the builder to the roofer on 3 March 2022 accepting their offer as follows:[12]
[12] Ibid, attachment A.
Re: Letter of Acceptance for Roofing and Wall Cladding: 68 Albion Street,
Warwick
Dear Tama,
We have great pleasure in confirming our acceptance of West Roofing &
Plumbing’s offer for the completion of the Roofing and Wall Cladding works
to the above project.
Scope of works:
• All works included as per the drawings •
All additional works as per the tender meeting held at the JBBK Constructions Head Office on 24/02/2022
•
All works will comply to Australian Standard in safe and professional manner
A conversation was held between Brett King, the proprietor of the builder, and Tony West, the proprietor of the roofer, on 10 May 2022. On that day a letter was sent from Mr West to Mr King as follows:[13]
[13] Ibid, attachment E.
Brett,
As per our conversation today 10 May 2022
It is obvious that we have not allowed this sheeting in our tender.
(i) Drawing W09.01 Detail D1 shows this flashing to one section of the building.
(ii) We made it clear at tender time we were not allowing Aluca/Metal Cladding to the building. This is clearly stated on our quote and referenced to drawings marked up A. Plus it shows up in Pre-Tender documents Page 4 of 5, Item 1 under Comments.
(iii) Our scope of works, we have marked up and sent to you, on page 1 of the
scope – 3.2 excluding CLD Composite Panel.
It is the problem of the cladding contractor to waterproof his own works.
We were aware of this flashing and made it quite clear it was not allowed.
Therefore, I believe it should be carried out on day dockets, Hours & Material and we will talk about costs down the track.
Building detail D1 on drawing W09.01 was as follows:[14]
[14] Ibid, Attachment G.
The wording on Detail D1 says: Zincalume sheet flashing to full extent of steel truss
seal all joints and fixings for watertight finish
On 11 May 2022, an email was sent by Mr. Mann to Mr West outlining the flashing detail, and attaching a sketch of that work, as follows:[15]
[15] Ibid, Attachment D.
Hi Brett,
As per our discussion on site yesterday, this email is to confirm the flashing detail we agreed upon for the power truss surrounding the canopy and link way.
It will be in two pieces as our available flashing girth will not allow it to be in one piece.
If there is any further information needed please let me know.
A document headed ‘Revised Variation 2’ and dated 25 June 2022 was sent from the
roofer to the builder. The text was as follows:16
Revised Variation 2
As per variation request 9/5/2022
.55 Zincalume Flat Sheet 1490G 5B @ 64.00 = 7,168.00
Access 2 x 40ft EWP’s 92 hours @ 54.00 = 5,022.00
Labour 107 hours @ 155.00 = 16,585.00
Total $28,775.00 plus GST
Discussion
This matter comes down to a matter of interpretation of the scope of work of the contractual relationship between the parties in relation to the flashing to the power truss in question.
The minutes of the Tender meeting held on 24 February 2022 note that all allowance for cladding excludes all alluca/metal cladding.
The revised quotation from the roofer dated 28 February 2022 specifically provides
that the quotation includes ‘wall flashing’ but does not include aluminium cladding
(Alucobond).
The letter sent by the builder to the roofer on 3 March 2022, accepting the roofer’s
offer, specifically provides that the scope of works is ‘all works included as per the drawings’ and ‘all additional works as per the tender meeting held at the JBBK
constructions head office on 24 February 2022’.
In his evidence Mr King identified a difference between wall flashing and cladding. He said that the truss was required to be flashed to make it waterproof in the first instance, and that a separate subcontractor was subsequently engaged at a later time to provide the cladding over it which forms part of the external appearance and corporate identity of the service station.
The interpretation of the scope of work as proposed by Mr King is consistent with the
quotation from the roofer to provide ‘wall flashing’ and would not include aluminium
cladding. On that interpretation, there is no inconsistency between the minutes of the tender meeting, the quote of the roofer, and the letter sent by the builder accepting the quote.
Mr West disagrees with the interpretation of the scope of work as proposed by Mr King.
[54] The difficulty for the builder is that Mr West was not personally involved in conducting the work. The person who fulfilled that role was its foreman, Mr Mann.
Whilst Mr Mann provided a statement of evidence, it does not sufficiently address the issues so as to illuminate the distinction between flashing and cladding.
Mr Mann was not available for cross examination. I therefore am unable to place much weight on his statement of evidence, even if it were to clearly address the issue as to the scope of works.
There was obviously a discussion as to the flashing between Mr Mann and the builder, which gave rise to the hand drawn sketch sent in the email of 11 May 2022 by Mr
Mann to Mr West which refers to ‘the flashing detail we agreed upon for the power truss surrounding the canopy and link way’.
If Mr Mann had been available to be cross-examined, he may have been able to provide insight as to how the discussion as to flashing arose, and what his understanding was as to the flashing being required.
The hand drawn sketch made by Mr Mann does not appear inconsistent with the wording on the original drawings contained in the amended draft subcontract at
‘Building Detail D1’. The wording on ‘Building Detail D1’ says ‘Zincalume sheet
flashing to full extent of steel truss’.
The email from Mr Mann to Mr West of 11 May 2022 appears to indicate that a change
to ‘Building Detail D1’ was required as that detail showed a single piece flashing,
whereas the problem was that the flashing girth available to the roofer at the time was not sufficient to make it in a single piece, and two pieces were required as shown in the hand drawn sketch.
[61] Whilst the hand drawn sketch made by Mr Mann indicates the use of ‘surfmist
colorbond’ as the material to be used in the flashing detail referred to in the
accompanying email of 11 May 2022, the ‘Revised Variation 2’ refers to Zincalume
flat sheet having been used.
[62] Colorbond and Zincalume are two completely different products. Colorbond is coloured coated steel sheeting, whilst Zincalume is bare-metal appearing coated steel sheeting.
Mr West was unclear as to why the reference in the hand drawn sketch was to the use of Colorbond; or whether Zincalume or Colorbond was ultimately used for the flashing.
If it is accepted that Zincalume was actually used for the flashing in question, as
claimed for in ‘Revised Variation 2’, then that is consistent with ‘Building Detail D1’
of the draft amended Subcontract.
Having regard to the consistency as to the sheeting material described in ‘Revised Variation 2’ and the sheeting material described in Building Detail D1; and to the
reference to wall flashing as opposed to cladding in the email from Mr Mann to Mr West of 11 May 2022; I am satisfied that the flashing provided in accordance with the hand drawn sketch made by Mr Mann was in fact required and consistent with the terms of the draft amended Subcontract, and is distinct from the excluded cladding referred to in the minutes of the Tender interview.
Another difficulty for the builder is as to the process of claiming Variations. The draft
subcontract provided in the section headed ‘Formal Instrument of Agreement’ as to
Variations as follows:[17]
[17] Draft Subcontract, Contract No:21-001-R, [8].
8. Variation to Subcontract
An amendment or variation to this Subcontract is not effective unless it is in writing and signed by the parties.
[67] There are further specific provisions as to directing Variations and proposed Variations in the Australian Standard Subcontract Conditions which are attached to the draft Subcontract at Clause 36.
[68] There is no Variation in writing signed by the parties in evidence. The builder therefore cannot rely on its claimed Variation, as it is not effective.
The builder relies on a Deed of Release dated 26 September 2023, which was signed by Mr West on behalf of the roofer. The Deed identifies an amount due in respect of retention of $4,472.28 and waives, releases and further discharges the builder from all other claims in connection with the Subcontract or the works.
The roofer does not deny that it signed the Deed of Release. Mr West said that he wrongly signed the Deed, but did so in order that the roofer would be paid for the completed work. He said that he had obtained legal advice before signing the Deed
and had intended to insert a clause stating ‘except for the subject matter in the ongoing
QCAT Application’, but forgot to do so.
I am not satisfied that:
(a) the flashing that was applied to the power truss was not in fact required under the terms of the contractual relationship between the parties, and that it constitutes a Variation, or (b) the appropriate process for claiming a Variation was followed in any event, or (c) it is established that the Deed of Release is not effective.
I therefore do not consider that the claim by the builder for a Variation is substantiated and sustainable. The claim must therefore fail.
[73] Accordingly, I order that the Application for commercial building dispute is
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