Wetlock Industries Pty Ltd v Brown

[2013] QCAT 486

CITATION: Wetlock Industries Pty Ltd v Brown [2013] QCAT 486

PARTIES:	Wetlock Industries Pty Ltd (Applicant)
V
Cain Brown (Respondent)

APPLICATION NUMBER: BDL109-13

MATTER TYPE: Building matters

HEARING DATE: 23 August 2013

HEARD AT: Southport

DECISION OF: Andrew McLean Williams, Member

DELIVERED ON: 3 September 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.  The respondent is to pay the applicant $3,958.94 within 28 days of the date of these orders.

CATCHWORDS:

BUILDING MATTERS - Oral agreement only for regulated building work -  in circumstances legally requiring a written agreement - Claim by builder for reasonable remuneration in these circumstances.

Domestic Building Contracts Act 2000 s 30
Queensland Building Services Authority Act 1991 s 77

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms Julie Shannon
RESPONDENT:	No appearance by or for the respondent

This matter was partly heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Wetlock Industries Pty Ltd trades as “Wetlock Waterproofing”, and are a company that installs waterproofing systems and other protective membrane systems.  In early 2013, Wetlock Industries were engaged by the body corporate of “Old Burleigh”, an apartment complex at Broadbeach on the Gold Coast, to remove existing tiles and then lay a new waterproof membrane on the roof-top balcony of Unit 16, at Old Burleigh.

2. At that time, Mr Cain Brown was the owner of Unit 16.  The unit has since been sold to a third party.  The rooftop balcony of unit 16 had a large, disused spa pool, with concrete surround.  Mr Brown wished to remove the spa pool, as part of his plan to renovate the deck area, in aid of his preparing unit 16 for sale.  Mr Cain requested that Wetlock Industries do these demolition works on his behalf, as it seemed convenient, given Wetlock Industries were already scheduled to undertake some demolition works on the same roof-top balcony on behalf the body corporate. 

3. There was no appearance at the hearing of this matter on 23 August 2013 by or on behalf of the respondent, who has moved overseas to live in Poland. Yet, in his written submissions, Mr Cain said that he had discussions on-site with Jamie, a leading hand from Wetlock Industries, and it was agreed with Jaimie that the work would be done by Wetlock Industries.  Mr Cain also says that he had it in mind that these works would probably cost around $500, yet he concedes that the parties never actually agreed on a figure, only agreeing that Wetlock could do the job, and that he (meaning Mr Cain) “could throw some cash their way” afterwards.

4. In the end, demolition of the spa and its surrounds was a much bigger job than Mr Brown had ever anticipated.  Once the job was completed, Wetlock Industries presented an invoice claiming $5,152.45.  Ms Shannon, director of Wetlock Industries says that the job took 59.5 man hours, and hence the labour cost was unusually high, primarily because all of the demolition rubble needed to brought down to ground level by hand, in buckets. 

5. Mr Brown has since refused to pay that invoice claiming that it is excessive.  Moreover, Mr Brown now claims that the works in dispute are “regulated” building works within the meaning of the Domestic Building Contracts Act 2000. Section 30 in that Act provides that contracts for regulated building work must be signed, because a regulated contract only has effect if it is signed by both the building contractor and the owner. In this instance there was never any written contract, and much less a signed one, as the agreement between Wetlock Industries and Mr Brown was only ever an informal one.

6. Although it be true that section 30 of the Domestic Building Contracts Act 2000 provides that a regulated contract has effect only if signed by both the building contractor and the owner, that is not the end of the matter. Section 77 of the Queensland Building Services Authority Act 1991 (QBSA Act) provides that a person involved in a building dispute can apply to QCAT to have the Tribunal decide the dispute and, in doing so, the Tribunal may exercise any of the powers conferred on it by s 77(2) of that Act, which includes - in s 77(2)(d) - the power to order the payment of an amount as restitution.

7. As has now been recognised in numerous decisions of this Tribunal, and as has been recently affirmed on appeal in Baque v River Gum Homes Pty Ltd [2013] QCATA 24, section 77(2)(d) of the QBSA Act gives to QCAT the power to make an award on a quantum meruit basis. In other words, and notwithstanding the failure by Wetlock Industries to ensure there was a written contract for regulated building works, this Tribunal may still order the payment of a fair and reasonable sum for the works undertaken by the applicant. If it were otherwise, then the respondent would acquire the benefit of those works for free, and that result would be entirely unjust. I am of the opinion that for the sake of fairness the discretion conferred on me by section 77 of the QBSA Act should be now be exercised in aid of the applicant. It falls then to be determined what a fair and reasonable sum is for the works performed by Wetlock Industries at unit 16.

8. In the invoice originally presented by Wetlock Industries to Mr Brown, $816.54 is claimed for equipment hire, and skip bins.  These sums are also supported by evidence in the form of invoices, such that I assess these costs to have been both necessary, and reasonable.

9. Wetlock Industries have claimed 59.5 hours for labour at $65 per hour, making for a total labour claim of $3,867.50.  Mr Brown objects to this and says that the number of hours claimed is excessive, and that the hourly rate is much too high, although no contrary evidence has been provided by the respondent as regards an appropriate alternate hourly rate. 

10. In evidence before the Tribunal Ms Shannon for the applicant made the point that specialised labour - even if not trade qualified - attracts a higher rate of remuneration than do ordinary unskilled labourers, such that the actual cost of labour to Wetlock Industries is about $53 per hour.  Ms Shannon also conceded that she could reduce the hours of supervision claimed for her leading hand on this job.  I accept that evidence.  I will therefore allow a labour rate of $55.65 per hour, thereby allowing for a modest 5% margin for Wetlock on the actual labour cost of $53 per hour in the circumstances of this quantum meruit claim. On the basis of the evidence before me, I find that it is also in order to now reduce the claimable hours down from 59.5 hours to 50, thus making what I determine to be a fair and reasonable labour claim of $2,782.50.

11. The respondent should be required to pay the applicant $816.54 for equipment hire, $2,782.50 for labour (inclusive of a modest profit margin), and GST. Accordingly I order that the respondent pay to the applicant the sum of $3,958.94 within 28 days.