Willan v Gordon - [2013] QCATA 305

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

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

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.
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.
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.
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.
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 September 2012 the house had achieved frame and lock up stage. It plainly had not, because no rear door had been installed. The Tribunal so found.
In September and October 2012 the respondent issued a number of invoices which were not paid by the applicant. Pursuant to the contract if such an invoice was not paid by the due date it attracted compound interest at 5% per calendar month, compounding monthly. Relevant invoices were:
·       13 September 2012, $2,510, remaining payment for completion of concrete post and main frame of floor. Under the contract payment of the invoice was due by 20 September 2012.
·       15 September 2012, $5,510, for completion of main frame floor (joist) and particle board floor. Under the contract payment was due by 22 September 2012.
·       24 September 2012, $3,425, for completion of the frame stage. Under the contract payment was due by 1 October 2012.
·       10 October 2012, $5,400, for final payment for materials of subfloor and post.
·       24 October 2012, $3,425, for lock up, discounted by $1,500 by incomplete works. As the building never reached lock up stage the Tribunal found this invoice was not payable.
On 24 October 2012 the respondent terminated the contract due to the applicant’s breach in not paying the amounts owing and issued a final demand notice claiming $18,770 being $20,270 less $1,500 for incomplete works. When payment was not forthcoming the application which led to the Tribunal’s decision, the subject of this appeal, followed.

The Tribunal’s Decision

The Tribunal found that as at 24 October 2012, the date of termination of the contract, the respondent was entitled to be paid $20,270 less the lock up payment of $3,425, an amount of $16,855 subject to adjustment depending upon the cost of rectification/completing incomplete work.

Grounds of Appeal

The grounds of appeal in the application for leave simply state that the facts presented at the Tribunal did not support the decision. It seems that the applicant had not received a copy of the transcript and written reasons at the time of lodging the application. The application asks for leave to provide submissions once they had received the documents.

Applicant’s Submissions

The broad essence of the submissions is that the Tribunal did not allow the costs for work contained in a quotation the applicant had obtained from a builder. It was asserted the costs allowed by the Tribunal grossly underestimated those costs. Additionally it was asserted:
·       the Tribunal did not allow for provision of a set of stairs for the house;
·       the Tribunal did not deal with the issue that the house was constructed 16 metres out of position thus increasing the cost of connecting utilities to the house;
·       the Tribunal did not address the issue that the flooring was not complete under the front door;
·       the interest claimed and awarded was unconscionable due to the amount of defective work.

Discussion

When a claim, such as in this case, is made to the Tribunal, then the Tribunal’s processes are activated. Directions orders are made to move the matter to a resolution, firstly by processes such as mediation or compulsory conferencing. If resolution is not achieved then ultimately the matter must proceed to a hearing as this matter did.
The Tribunal’s processes are designed to expose the parties’ claims and counter claims and evidence in support thereof. By the time a matter goes to a hearing all parties are, or should be, aware of what the opposing party is saying, of the evidence to be put forward in support of what the opposing party is saying and of the need to provide to the Tribunal the evidence in support of what the party says and of the ways in which that is to be done. The Tribunal’s processes and directions orders are designed to ensure all parties are, or should be, aware that witnesses who will provide evidence at a hearing are in attendance at the hearing to be questioned about the evidence they have provided unless the Tribunal has ordered that can occur by remote conferencing or they are advised the witness is not required to attend.
It follows from the above and from plain common sense that evidence from a witness who is not present at a hearing to be questioned about their written evidence, when challenged by the opposing party may, justifiably, be given less weight in the face of conflict with opposing evidence provided by persons who are present at the hearing.
The general remarks above have relevance here. The transcript of the hearing demonstrates the Tribunal heard from the respondent (the builder) and from the applicant (the home owner). The member who constituted the Tribunal asked numerous questions to gain an understanding of the matter and what each party was asserting. He encouraged the parties to challenge what the opposing party was saying if they did not agree with it. In the end he was left with the sworn evidence of the respondent about the cost of completion or rectification work, and opposing evidence from another builder in the form of a bare quote obtained by the applicant.
During the hearing the respondent offered to return to the site and address the various items in issue. The member asked the applicant about his attitude to an order that the respondent return to the site and address the various items to the satisfaction of a Building Services Authority inspector. The applicant did not agree.[1]
[1]Transcript of Proceedings, Gordon v Willan & Anor (QCAT, BDL324-12, Barry Cotteral, 18 April 2013) 46.

Decision

With respect to the ground that the Tribunal, wrongly, did not allow for the provision of a set of stairs, the evidence at the hearing bearing on this included the written agreement and variations, a set of plans dated 9 August 2012 and the oral evidence, or lack thereof, at the hearing.
The provision of stairs was not on the original quotation or on the variations when the house construction was required to change from slab on ground to stumps.[2]
[2]Ibid 6 and 7.
In evidence the applicant said that although provision of stairs was not in the quotation for the variations he was told by the respondent that the stairs were to be provided in the price.[3]
[3]Ibid 23, 24, 25.
In the reasons for its decision the Tribunal noted the stairs were not part of the original contract and were not quoted for on 17 July 2012 when the house was to be raised on stumps. There was no documentation supporting the applicant’s claim that the respondent had said stairs would be provided. The Tribunal was not satisfied on the evidence that stairs were part of the contract.
This view was one the Tribunal which heard the matter, who saw the witnesses, was entitled to come to on the evidence.
With respect to the ground of appeal that the Tribunal did not deal with the issue that the flooring was not complete under the front door, it is helpful to go to the reasons for the Tribunal’s decision. The Tribunal noted that the applicant’s builder’s quote was for $1,122 to change the front landing and $419 for floor under the front door.[4] The Tribunal said:
the applicant (the respondent in the present application) admitted that the front door was incorrectly supplied but that he installed it after checking with the supplier that it could later be replaced. It slides from the wrong side and the fixed panel is over the front landing while the door opens above the stairs. The supplier has agreed to replace the door. An amount of $400 is allowed for a builder to carry out this work.[5]
Reference to the transcript of evidence suggests the applicant’s builder’s quote was to leave the door in place and add another piece of landing at the front door instead of taking the door out and reversing it.[6]
[4]Ibid 53.
[5]Ibid 53.
[6] Ibid 44.
The conclusion the Tribunal came to was plainly supportable on the evidence.
With respect to the ground the house was constructed 16 metres out of position this does not appear to have been a matter in issue before the Tribunal. There is no reference to it in the transcript of evidence except for the Tribunal member’s remarks in the transcript where he said:
just like you made the comment about the house being located in the wrong place. You haven’t proceeded with that claim in these proceedings so I haven’t pursued that at all because you haven’t picked it up, you haven’t run with it. You haven’t made any claim for that so it’s irrelevant as well.[7]
[7] Ibid 42.
This ground is not supportable.
As remarked earlier the broad essence of the applicant’s submissions is that the Tribunal wrongly did not allow the costs of various rectification/completion work contained in the quotation obtained from a builder by the applicant. That builder was never before the Tribunal to be questioned about the matters in his quotation.
The difficulty the applicant has with this submission has already been touched upon. The quotation the applicant urges is a bare quotation for particular items with no explanation from the builder to explain what the builder was told or envisaged was required under the contract. The builder was not before the Tribunal to give evidence so that the Tribunal could gain some understanding to assess the weight to be given to the work costs assigned to the listed items. On the other hand the respondent was before the court, gave sworn evidence and explained the reasons why he assigned a particular cost to a particular aspect of rectification or completion.
The assessment of the cost of the items of rectification or completion by the Tribunal was for the Tribunal to make on the evidence before it. It appears plain that it did that. It was entitled to regard the evidence in the way it did. It is not shown it fell into error in assessing the costs of rectification/completion it did and applying those costs to the amount due to the applicant under the contract in the circumstances prevailing.
With regard to the submission the interest claimed and ordered was unconscionable due to the amount of defective work there are a number of supplementary paragraphs in the submissions which I take to apply to unconscionability viz the age and health of the applicant, the house remains unable to be lived in, the female applicant having had a number of falls as they live in a shed on the property, stress resulting from this matter affecting the applicants’ health.
The interest sought and awarded is provided for in the contract the parties entered into. The contract provided it becomes payable on overdue invoices from the date when payment became due until the date of payment at a rate of 5% per calendar month compounding monthly.[8]
[8] Clause 15(1) of the contract.
The contract was for construction of the house only to lock up stage not to practical completion. Lock up stage is not necessarily habitable. As the Tribunal found, lock up stage was not achieved before the contract was terminated by the respondent because invoices had not been paid. Work had been suspended under the contract. It is not in dispute the material invoices have not been paid.
The interest awarded by the Tribunal was that provided for in the contract and found to be due by 24 October 2012 when the contract was terminated. It was calculated at the rate provided on invoiced amounts which fell due for payment prior to contract termination. Interest claimed on other later invoices was not awarded.
Consistently with the Tribunal’s findings the interest awarded was pursuant to the terms of the contract. There is nothing advanced in the appeal which shows the Tribunal fell into error. Nor is there any sufficient reason shown on this appeal to overturn the Tribunal’s decision on interest.
The conclusion I have reached after examining the evidence and the Tribunal’s reasons for its decision is that it is not shown there is any basis upon which to give leave to appeal. The application is dismissed.