Willan v Gordon

CITATION: Willan v Gordon [2013] QCATA 305

PARTIES:	Ken Willan June Willan (Applicants)
v
Anthony Thomas Gordon (Respondent)

APPLICATION NUMBER: APL206-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K S Dodds, Judicial Member

DELIVERED ON: 14 November 2013

DELIVERED AT: Brisbane

ORDERS MADE: Application for leave to appeal dismissed.

CATCHWORDS: APPEAL – LEAVE TO APPEAL – DOMESTIC BUILDING DISPUTE – where invoices for work under the contract not paid when fell due – where builder terminated the contract – where builder applied to Tribunal for money not paid according to the invoices – where Tribunal adjusted amount due under the invoices for rectification/completion of items of work – where Tribunal did not apply amounts in a quotation obtained by the owner from a builder for items of rectification/completion – where builder did not appear before Tribunal in the hearing

APPEARANCES and REPRESENTATION (if any):

This matter was 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. This is an application for leave to appeal the Tribunal’s decision in a domestic building dispute.

2. Leave to appeal will only be granted if it is shown there is a basis for it; there is a reasonably arguable case of error on the part of the Tribunal such that an appeal is necessary to correct a substantial injustice to the applicant caused by that error; or, the appeal for which leave is sought exposes a question of general importance upon which a decision of the appellate tribunal would be to the public advantage.

Background

1. On 1 November 2012 the respondent lodged an application with the Queensland Civil and Administrative Tribunal (QCAT) seeking orders for the payment of $18,770 owing under a domestic building contract plus interest and costs.

2. On 11 March 2012 the applicants (Ken and June Willans) entered into a written agreement with the respondent (Anthony Thomas Gordon) for the construction of a kit home to lock up stage on the applicant’s land, slab on ground construction for $49,670.

3. On 17 July 2012 there were variations in writing to the agreement.  Because the land was in a flood prone area and resulting local authority requirements it had been decided the house would be constructed on stumps.  $8,820 was deleted from the price because the slab was no longer required.  Other amounts were added to the price: $3,700, deposit for 20% of the materials, updated engineering and drafting, $10,800, final payment for extra materials, $11,020, completion of the concrete holes, installation of posts and slab frame.  The resulting contract price was $66,370.

4. Work pursuant to the agreement proceeded and by 10 September 2012 the applicant had paid the respondent $46,100.  Thus $20,270 of the contract price was yet to be paid.

5. On 28 September 2012 the applicant and the respondent signed a document which said that the house had reached lock up stage. A building certifier issued a form saying that by 28…