Willcox v Tickle - [2012] QCAT 571

CITATION:

Willcox and Anor v Tickle [2012] QCAT 571

PARTIES:	Jennifer Lorraine Willcox Gary John Kennedy (Applicants)
v
Guy Anthony Tickle trading as Compass Designer Kit Homes (Respondent)

APPLICATION NUMBER:

BDL053-11

MATTER TYPE:

Building matters

HEARING DATE:

22 and 23 September 2011

HEARD AT:

Townsville

DECISION OF:

Keta Roseby, Member

DELIVERED ON:

16 November 2012

DELIVERED AT:

Townsville

ORDERS MADE:

1. Jennifer Willcox to pay to Guy Tickle the amount of $24,472.64, inclusive of interest, within 6 weeks with interest accruing at the rate of $2.58 per day from 16 November 2012 until payment.

CATCHWORDS:

Purchase of kit home – vendor requested by purchaser to organise trades for erection of kit – disputes as to what items should have been supplied as part of kit and invoices paid by vendor on behalf of purchaser – claim by vendor for work performed on behalf of purchaser

Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Jennifer Lorraine Willcox and Gary John Kennedy

RESPONDENT:

Guy Anthony Tickle

REASONS FOR DECISION

On 14 September 2009 Miss Willcox (Applicant)[1] entered into a written agreement with Mr Tickle (Respondent) to purchase a kit home comprising the items set out in Schedule A (the Kit) and architectural plans, engineers drawings and specifications for the Kit (the Plans) for the total purchase price of $222,680.00 inclusive of GST (the Agreement).[2]
[1]The initial Application dated 11 March 2011 and filed 15 March 2011 was made by Miss Willcox. A further Application dated 14 March 2011 and filed 31 March 2011 purported to add Mr Gary Kennedy as Applicant however the Agreement about which there is dispute is only between Miss Willcox and Mr Tickle.
[2]The Agreement is Exhibit 22 and Schedule A to the Agreement is attached to the Quotation Exhibit 5.
The Agreement states[3] that the Kit and the Plans were being “supplied and delivered for a dwelling to be erected by the Purchaser at the Purchaser’s expense delivered to the following location … 5 Jaydn Court, Horseshoe Bay, Magnetic Island”.
[3] At clause 2.
Separate to the Agreement, Miss Willcox, together with her partner, Mr Gary Kennedy, spoke with Mr Tickle about the erection of the Kit, as they were not familiar with trades on Magnetic Island, and asked Mr Tickle if he would organise the trades for the erection of the Kit. Mr Tickle is not a builder himself but lived and worked on Magnetic Island and so had a network of trades that he was able to contact to assist Miss Willcox who subsequently secured an owner / builder license in order to satisfy that requirement. Miss Willcox had not previously had any experience in the building and construction industry, however, her partner, Mr Kennedy, was a plumber by trade.
As is often the case with matters before the Tribunal, what little communication there was between the parties broke down and solicitors were engaged by both parties. Unfortunately, the differences were unable to be resolved at that level. Miss Willcox was not prepared to make any more payments until further materials were delivered to site and Mr Tickle was not prepared to deliver any more materials without further payment.
In Miss Willcox’s application to the Tribunal, she states that payments totalling $227,680.00 were made by her and she claims the sum of $70,000.00 from Mr Tickle for incomplete work in respect of materials which she alleges were not supplied and delivered in accordance with the Agreement[4]. Her application also makes reference to issues regarding a Non-Compliance Form 61 issued by the Burdekin Shire Council. The figures used in Miss Willcox’s claim refer only to the purchase price of the Kit and do not take into account the fact that Mr Tickle had also paid the various tradespeople and other associated invoices on her behalf.[5]
[4]See Annexure “O” to Exhibit 21 although the specific figure claimed in that schedule is $63,885.19.
[5]Following on from Miss Willcox’s request for Mr Tickle to organise the trades for the erection of the Kit.
In Mr Tickle’s response and cross application, he claims a total amount of $47,730.20 from Miss Willcox comprised of $34,460.20 in respect of payments due from Miss Willcox, $10,000.00 for project assistance in finding tradesmen and assisting with administration, together with interest and legal costs for the balance. Mr Tickle’s figures refer to both the purchase price of the Kit and the amounts he had also paid to tradespeople on behalf of Miss Willcox.
At the hearing, Miss Willcox advised that she did not wish to pursue any issue she may have had with the Non-Compliance Form 61 and that the issue she wanted the Tribunal to determine was in respect of the materials which she alleges were not supplied and delivered in accordance with the Agreement. Miss Willcox referred to a list[6] of the items which she says, in her application, their value should be reimbursed to her because they were not supplied by Mr Tickle in accordance with the Agreement. In addition to this document Miss Willcox told the Tribunal that the following four further items (referred to in general terms) were to be added to the list:
a)     Roof trusses;
b)     Gyprock;
c)     Villa board;
d)     Green board.
[6]        Annexure “O” to Exhibit 21.
In material filed by Mr Tickle, he had provided what he referred to as, a “settlement statement”[7] which, in his submission, sets out the figure paid by Miss Willcox towards the purchase price of the Kit, the value of materials not supplied to complete the Kit, other conceded deductions and the resulting figure owed to him by Miss Willcox.
[7] Annexure “X” to Exhibit 21.
To assist the Tribunal, Mr Tickle was asked to advise, based on the figures contained within his settlement statement[8], which items[9], if any, he admitted should have been supplied to complete the Kit, and were not, and whether he was thereby willing to concede that those items would result in a reimbursement to Miss Willcox.
[8] Annexure “X” to Exhibit 21.
[9] In reference to the figures claimed by Miss Willcox in Annexure “O” to Exhibit 21.
Mr Tickle, during the course of the hearing, conceded to the following items:
a)     Weatherboard: 60 lengths @ $42.89 + GST = $2,830.74;
b)     Fixings for cladding: 3 boxes @ $92.85 + GST = $306.41;
c)     Downpipes: 14 lengths @ $31.98 + GST = $492.50;
d)     External doors: 4 @ $196.00 + GST = $862.40;
e)     Internal doors: 9 @ $64.00 + GST = $633.60;
f)     Front door: 1 @ $389.00 + GST = $427.90;
g)     Windows and fly screens: including GST = $22,419.60;
h)     3 missing windows, colour bond: including GST = $2,000.00;
i)      3 cavity slider frames: 3 @ $149.00 + GST = $491.70;
j)      Architraves / skirting: 355m @ $3.39 + GST = $1,323.80;
k)     Hanging rail ends: including GST = $395.20;
l)      Shelves, melamine: 24 @ $36.71 + GST = $969.15;
m)   Linen doors: 8 @ $64.00 + GST = $563.20;
n)     Door handsets: 10 @ $54.89 + GST = $603.79;
o)     Privacy door sets: 3 @ $49.78 + GST = $164.28;
p)     Door frames, per metre: 14 @ $4.54 + GST = $674.73;
q)     Door hinges, stainless steel: 44 @ $15.04 + GST = $727.94;
r)     Cornices: 20 lengths @ $11.61 + GST = $255.42;
s)     Stud adhesive: 6 @ $22.42 + GST = $282.50;
t)     Basecoat: 3 bags @ $31.80 + GST = $104.94;
u)     Topcoat: 3 pails @ $30.99 + GST = $102.27;
v)     75 x 75 x 4 Duragal: 16m @ $22.58 + GST = $397.41.
The total of these items is $37,029.48. The remainder of the items contained within Miss Willcox’s list were issues for determination by the Tribunal.
In addition to these items, Mr Tickle agreed to the further claims made by Miss Willcox in respect of the following:
a)     Gyprock: $3,711.60 inc GST;
b)     Villa board: $650.00 inc GST;
c)     Green board: $355.51 inc GST.
The total of these items is $4,717.11. The remaining issue regarding the roof trusses was also for determination by the Tribunal.
The other deductions conceded[10] by Mr Tickle and referred to in his settlement statement are as follows:
a)Homegrown Hardwoods Invoice 2678 in the sum of $3,026.54;
b)Dale & Meyer Invoice No 20297682 in the sum of $540.69;
c)Dale & Meyer Invoice No 20298221 in the sum of $1,465.92;
d)Home Hardware Invoice No 356473 in the sum of $308.00;
e)Home Hardware Invoice No 357885 in the sum of $26.18.
[10]Referred to in paragraph 8 above. Although not all deductions were in respect of items that would normally be supplied in the Kit, Mr Tickle told the Tribunal that he had told Miss Willcox that he would pay for them. The item referred to as ‘Windows’ with Invoice No RTG1456 in the sum of $22,419.61 is already included at paragraph 10(g) above. The item referred to as “Plasta Masta’ with Invoice No 110718 in the sum of $4,660.97 is already included at paragraphs 10(a) and 10(b) above, albeit for a different figure. The items referred to as ‘MIT’ with Invoice Nos 14358 and 14525 in the sum of $250 and $50 respectively are in respect of freight which is dealt with at paragraphs 106-111 below.
The total of these items is $5,367.33.
What is not in dispute is the work performed by the tradespeople and the prices charged. Miss Willcox concedes that Mr Tickle has paid the tradespeople though she says she didn’t give him authority to do so. Having said that, she confirmed in evidence that, had the invoices been sent directly to her, she would have paid them. The complaint raised by Miss Willcox was that she was not advised at an earlier point in time, by Mr Tickle, of the costs being incurred however she seeks no relief in this regard.
Mr Tickle’s evidence is that he has paid the sum of $81,697.73 in respect of these various tradespeople together with other associated invoices on behalf of Miss Willcox. The Tribunal accepts that Mr Tickle paid $81,697.73 but notes that Miss Willcox takes issue with four of the associated invoices which will be dealt with below.[11]
[11] At paragraphs 120-144 herein.
Also not in dispute is the total amount paid by Miss Willcox to Mr Tickle, those figures are as follows:
26.09.09$ 11,134.00
06.04.10$ 5,000.00
07.05.10$165,000.00
11.06.10$ 25,000.00
20.08.10$ 20,000.00
06.09.10$ 1,546.00
$227,680.00[12]
[12]There was an earlier payment of $2,150 paid on 31 October 2008 to another entity of Mr Tickle’s by the name of ‘Ask Homes’ in respect of architectural plans however there is no dispute in respect of that preliminary agreement.
Except for the initial deposit paid shortly after signing the Agreement, these figures do not correspond at all with the progress payment table contained within the Agreement[13], nor did Mr Tickle forward invoices accordingly. Mr Tickle says that this (lump sum payment) evidences the intention of the parties that he would both engage and pay, on behalf of Miss Willcox, the various trades required to erect the Kit.[14]
[13] Exhibit 6(a).
[14] All trades organised by Mr Tickle invoiced Mr Tickle and not Miss Willcox.
Miss Willcox said in evidence that the payments to the various trades should have been separate and not paid out of ‘Kit money’ and that she paid in a lump sum because she was going to be away a lot. However, this doesn’t sit with the fact that she rented accommodation on the Island, was there regularly and that there are (obviously) methods of payment available via the internet or telephone banking if required.
The Tribunal prefers the evidence of Mr Tickle. Accordingly, the Tribunal must determine the financial position of the parties after taking into account:
a)the purchase price of the Kit and the Plans;
b)the value of any Kit items that were not supplied and delivered by Mr Tickle or otherwise conceded by Mr Tickle as being deductions;
c)the value of the work performed by the various trades together with other associated invoices paid for by Mr Tickle;
d)the amount paid by Miss Willcox to date;
e)any other Order made by this Tribunal.
In terms of the items alleged by Miss Willcox not to have been supplied to her by Mr Tickle, the process adopted by the Tribunal was as follows:
a)whether the item, in accordance with the Agreement, should be supplied as part of the Kit;
b)if so, then whether in fact it had been supplied by Mr Tickle; and
c)if not, then what value should be deducted from the purchase price of the Kit in respect of that item?

Items for determination

Garage and laundry framing: Claimed at $5,200.00 + GST = $5,720.00.
It was agreed that this item should have been supplied as part of the Kit.
The issue arises because Mr Tickle says that he had the garage and laundry framing made and ready to be installed[15] but that he had advised Miss Willcox that it was ready for installation and he would deliver it to site once the outstanding monies owed had been paid to him.
[15] Refer Exhibit 21, Annexure Q.
Miss Willcox says that, as the framing had not been delivered to site, she engaged others to install it. Miss Willcox went on to say that she had been advised by the plumber and electrician that they could not progress the work on site until the framing was installed.
Relevantly, the Agreement states that the “Kit and Plans are being supplied and delivered to ... 5 Jaydn Court, Horseshoe Bay, Magnetic Island”[16]. Even if an argument could be made that the framing had been supplied by Mr Tickle[17], there certainly has been no delivery.
[16] Clause 2.
[17]Though the Tribunal notes the admission in correspondence from Mr Tickle’s solicitors to Miss Willcox’s solicitors dated 7 October 2010 (part of Exhibit 22) that the framing had not been supplied.
The Agreement allows for work to cease or deliveries to be withheld until such time as payment has been received in accordance with the progress payment table contained within the Agreement[18] and so Mr Tickle was well within his rights to do so. However, there is nothing that then allows Mr Tickle to claim for the supply of any part of the Kit, even if supply could be proven, without the corresponding delivery.
[18] Clause 5(b)(i) and Exhibit 6(a).
The Tribunal finds that the purchase price of the Kit is to be reduced by the value of the quotation provided to the Tribunal, by Miss Willcox,[19] for the work to be done in the sum of $5,720.00 inclusive of GST.[20]
[19]In the absence of evidence from Mr Tickle as to the value of the garage and laundry framing component of the Kit.
[20] Annexure “M” to Exhibit 21.
Ceiling battens: Claimed 231 lengths @ $14.24 + GST = $3,618.50.
It was agreed that this item should be supplied as part of the Kit.
Mr Tickle gave evidence that he supplied all the ceiling battens required and agreed that there should be 231 as claimed by Miss Willcox. Mr Tickle was able to produce invoices evidencing the purchase of 103 ceiling battens[21] and despite the lack of invoices for the full 231, was adamant he had in fact purchased and delivered all 231.
[21]Exhibit 8. The invoice is for 248 but note that some 40m roof battens and not the 24m ceiling battens in dispute.
Miss Willcox’s submission was that all ceiling battens required had in fact been installed but that she had had to pay the carpenter for some ceiling battens, although she didn’t know “off hand” how many she was charged for.
In response to this, Mr Tickle gave evidence that the carpenter had charged Miss Willcox for 100 ceiling battens purchased on 16 April 2010 which was some time before the erection of the kit home even commenced (on 8 May 2010) and commented that Miss Willcox should not have paid the carpenter for those as clearly they were not for her home, given the time they were purchased.
The Tribunal prefers the evidence of Mr Tickle and finds that the ceiling battens were supplied by Mr Tickle.
Corrugated iron for cladding: Claimed 58m2 @ $24.64 + GST = $1,572.03.
It was agreed that this item should be supplied as part of the Kit.
Mr Tickle gave evidence that he supplied all the corrugated iron for external cladding and that there was still at least 58m2 (as claimed) under the house.[22]
[22] As evidenced by the photograph in Annexure “R” to Exhibit 21.
Miss Willcox agreed that there was corrugated iron under the house[23] but that she would need an additional 58m2 in order to finish the external cladding to the house.
[23] As per the photograph.
Mr Tickle gave evidence that the quantities for items to be supplied as part of the Kit were computer generated. Whilst the Tribunal is open to the suggestion that insufficient quantities were calculated and delivered to site, Miss Willcox did not offer any evidence as to how she determined that the cladding already on site would be insufficient to complete the work.
The Tribunal prefers the evidence of Mr Tickle and finds that the corrugated iron for cladding was supplied by Mr Tickle.
Curved roof screws: Claimed 2 boxes @ $149.40 + GST = $328.68.
It was agreed that this item should be supplied as part of the Kit.
Miss Willcox’s evidence was that there were no curved roof screws on site.
Mr Tickle referred to an invoice[24] and gave evidence that the 3,500 screws referred to were for Miss Willcox’s Kit, that 3,500 would comfortably do the house and that they were in the container utilised by the carpenter.
[24] Exhibit 8.
It is relevant to note that Mr Tickle gave evidence that, although he was quoting on a lot of kit homes, he did not have any other work on at the time.
The Tribunal prefers the evidence of Mr Tickle and finds that the curved roof screws were supplied by Mr Tickle.
Corrugated roofing iron: Claimed 51m2 @ $24.64 + GST = $1,328.31.
It was agreed that this item should be supplied as part of the Kit.
Miss Willcox gave evidence that, although the two straight roofs had been sheeted, there was no more roofing iron left on site to complete the third curved roof and that she would need to purchase 51m2 additional roofing iron to do this.
Mr Tickle agreed that there was no further roofing iron on site but said that sufficient roofing iron for all three roofs had been delivered to site. Mr Tickle referred to an invoice[25] and gave evidence that the 305m2 of surf mist roofing iron referred to in the invoice would have been the figure generated by the computer program and was the quantity of roofing iron delivered to Miss Willcox.
[25] Exhibit 8.
One possible explanation offered by Mr Tickle was that either the roofer had wasted the roofing iron available and/or some of the roofing iron had been taken to another job. It was noted that the colour of the roofing iron was “surf mist” which is apparently white or near white in colour and so common among new homes being constructed.
Mr Tickle carried out some calculations during the hearing, of approximate amounts of roofing iron required for the two straight roofs. Even on the most generous calculations, taking into account Miss Willcox’s comments about where the roof line extended to, there should have been, on Mr Tickle’s evidence, from the 305m2 ordered, at least the 51m2 claimed, after completing the two straight roofs.
The Tribunal prefers the evidence of Mr Tickle and finds that the corrugated roofing iron was supplied by Mr Tickle.
Colour bond fascia & Fascia cups: Claimed 36 metres @ $11.16 + GST = $441.94 & 24 @ $2.96 + GST = $78.14 respectively.
It was agreed that this item should be supplied as part of the Kit.
Mr Tickle referred to an invoice[26] and gave evidence that he supplied the 108.4m and 7m fascia as itemised in the invoice, that is, a total of 115.4m. Mr Tickle then carried out some calculations during the hearing, of approximate amounts of fascia required for the house and determined that, based on the supply of 115.4m, Miss Willcox would require additional roofing iron.
[26] Exhibit 8.

Accordingly, the Tribunal finds that insufficient roofing iron was supplied by Mr Tickle. Allowing a 10% margin on the areas calculated by Mr Tickle[27] the Tribunal orders that Mr Tickle compensate Miss Willcox for 23.2m[28] of fascia at $11.16 + GST = $284.80 in addition to the fascia cups as claimed at $78.14.[29]
[27] As provided for in the Agreement. See Exhibit 6(a).
[28] 95m + 31m x 1.1 – 115.4m supplied.
[29]These are the rates claimed by Miss Willcox. Mr Tickle gave no evidence to the contrary.
Gutter & Gutter brackets: Claimed 30 metres @ $12.89 + GST = $425.37 & 30 @ $1.38 + GST = $45.54 respectively.
In evidence, it was clarified that this claim referred to gutter for the middle curved roof together with one length required elsewhere. Miss Willcox submitted that this item should be supplied as part of the Kit. However, Mr Tickle denied that he was required to supply guttering for the middle roof (while admitting that he was required to do so, and had in fact done so, in respect of the two straight roofs).
Miss Willcox admitted that the guttering is not shown on the architectural plans for the middle roof but said that she and her partner had asked for it “since day one”. When queried by the Tribunal as to why the architectural plans did not then reflect their request in this regard, the Tribunal was told that they had had enough of the person that drafted the plans as it took her six meetings to get to where the plans ended up and they did not wish to pursue it any further.
In response, Mr Tickle said that he did not recall Miss Willcox or her partner asking for guttering on the middle roof and, if they did, he would have objected to the concept.
It is noted that the Agreement[30] at clause 12 states:
This agreement constitutes the entire agreement between the parties and there are no other understandings, agreements, warranties, guarantees or representations in any way extending, defining or otherwise relating to the subject matter of this Agreement which are not set out in this Agreement.
[30] Clause 12.
Mr Tickle carried out some calculations during the hearing and, based on the amount of guttering itemised in the invoice evidencing his purchase[31] Miss Willcox would have been short by approximately 0.2m.
[31] Exhibit 8: 63.2m + 7m = 70.2m.
Accordingly, the Tribunal finds that insufficient guttering was supplied by Mr Tickle. Allowing a 10% margin[32] on the areas calculated by Mr Tickle,[33] the Tribunal orders that Mr Tickle compensate Miss Willcox for 7.3m[34] of guttering at $12.89 + GST = $103.51 in addition to the gutter brackets as claimed at $45.54.[35]
[32]        As provided for in the Agreement. See Exhibit 6(a).
[33]        70.4m x 1.1 – 70.2m supplied.
[34]        Rounded from 7.24m.
[35]These are the rates claimed by Miss Willcox. Mr Tickle gave no evidence to the contrary.
Kwila decking: Claimed 90 metres @ $4.50 + GST = $445.50.
It was agreed that this item should be supplied as part of the Kit.
It was also agreed that sufficient Kwila had been delivered to complete the decking. The issue by Miss Willcox is that some of the Kwila was twisted and bent following the weather experienced at site and was then unable to be used and so it had to be replaced.
Miss Willcox did not have invoices or receipts with her in respect of the purchase of this timber at the hearing, despite the Tribunal requesting on day one of the hearing that all documentation available to evidence claims being made be brought to the hearing on day two. No other evidence was offered by Miss Willcox, such as photographs, to evidence the allegation that the timber was in fact twisted and bent.
Mr Tickle gave evidence that the Kwila was not twisted and bent when it was supplied by him.
The Tribunal prefers the evidence of Mr Tickle and finds that the Kwila decking was supplied by Mr Tickle and that it was not twisted and bent when it was supplied. Any damage that the Kwila decking may have sustained following delivery by Mr Tickle is the responsibility of Miss Willcox.
SilverCell foil: Claimed 4 rolls @ $368.64 + GST = $1,622.02.
It was agreed that this item should be supplied as part of the Kit.
Miss Willcox gave evidence that she had been invoiced by the carpenter for four rolls of SilverCell foil although no invoices or receipts were produced in this regard, again, despite the Tribunal requesting on day one of the hearing that all documentation available to evidence claims being made be brought to the hearing on day two.
Mr Tickle referred to an invoice which he says evidences the fact that he purchased the SilverCell foil[36] and said that sufficient SilverCell foil had been delivered. Mr Tickle also pointed out the difference in the cost paid for SilverCell foil by him compared to the amount claimed by Miss Willcox.
[36] Exhibit 10.
The Tribunal prefers the evidence of Mr Tickle and finds that the SilverCell foil was supplied by Mr Tickle.
Missing window frame 900 x 600: Claimed @ $1000 + GST = $1,100.00.
It was agreed that this item was missing from the framework supplied as part of the Kit.
Mr Tickle gave evidence that, in order to rectify the problem, the relevant stud or studs would need to be cut and noggins placed at the top and bottom to make the window opening. He said that there was ample material on site to do this without additional cost for material.[37]
[37]Mr Tickle also referred to a quote from the Tamco Group, Exhibit 21 Annexure S, in the sum of $93.64 to rectify the problem.
Miss Willcox’s claim was based on a quote obtained from Dave Baldwin[38] to rectify the problem. The Tribunal was told that Mr Baldwin did not live on the Island and so his quote would have included travel. In any event, Miss Willcox did not engage Mr Baldwin to carry out the work the subject of the quote and her partner, Mr Kennedy made the window opening using material available on site and therefore at no cost to Miss Willcox.
[38] Annexure “M” to Exhibit 21.
The Tribunal finds that the window frame was missing from the framework supplied by Mr Tickle but does not order any compensation to Miss Willcox as she was able to have it rectified at no cost with material available on site provided by Mr Tickle.
Garage Door panel lift (remote): Claimed @ $2,045.00 inc GST.
It was agreed that this item should be supplied as part of the Kit and that it had not been supplied.
The issue was the amount of compensation due to Miss Willcox by reason of the non-supply.
Miss Willcox relies on an email[39] which refers to the cost to Mr Tickle to purchase the door together with a suggested mark-up. Mr Tickle also relied on the same email suggesting that he should not have to compensate Miss Willcox for the mark-up he would have made.
[39] Annexure “N” to Exhibit 21.
No other evidence was provided by either party as to the cost to purchase the garage door which had not been supplied.
The fact remains that, if Mr Tickle did not supply part of the Kit, Miss Willcox will then be left to purchase that item at the retail prices available to her and the value of the item, as priced by Mr Tickle, should be deducted from the purchase price of the Kit.
Accordingly, the Tribunal finds that the garage door was not supplied as part of the Kit by Mr Tickle and orders that the purchase price of the Kit be reduced by $2,045.00 as claimed.
Cyclone rods M16 x 3000, Cyclone rods M12 x 3000, M16 square washers, M16 nuts, M16 joiners, M12 joiners: Claimed 36 @ $28.78 + GST = $1,139.70, 16 @ $18.87 + GST = $332.11, 80 @ $0.51 + GST = $44.88, 80 @ $0.70 + GST = $61.60, 26 @ 3.46 + GST = $98.96 & 32 @ $2.89 + GST = $101.73 respectively.
There was dispute about whether the cyclone rods and associated pieces should have been supplied as part of the Kit.
Although Miss Willcox claimed that they should be, Mr Tickle disagreed and stated that only the items referred to in the Agreement[40] were to be supplied by him as part of the Kit and that as cyclone rods were not included in Schedule A[41], then he was not required to supply them.
[40] Exhibit 22.
[41] Exhibit 5.
Miss Willcox referred to signage used by Mr Tickle which she said states: “Guaranteed structural stability – cyclone rated”. In response to this, Mr Tickle advised that all materials supplied are to cyclone standard.
Miss Willcox also gave evidence that their engineer had advised them that, given the size of the house and the size of the openings, cyclone rods would be required. The Tribunal notes that cyclone rods are referred to on the approved plans.[42]
[42] Exhibit 1.
Mr Tickle also stated that, despite his view that he was not responsible for the supply of the cyclone rods and associated pieces, he had in fact paid for them, in any event. Mr Tickle then referred to two invoices.[43]
[43]An invoice from Homegrown Hardwoods to Mr Tickle, no. 2980 with reference “Federation”. Mr Tickle stated that the carpenter (Federation Woodworks) had put these items onto Mr Tickle’s account without his knowledge. The second invoice from Dale & Meyers to Federation Woodworks, no. 20298221. Mr Tickle told the Tribunal that the carpenter had asked Mr Tickle to pay for these items and, in earlier attempts to settle the issues in dispute between the parties, Mr Tickle had agreed to pay for.
The Tribunal notes that, while the invoices do refer to and include a number of the items claimed by Miss Willcox, not all items claimed are contained within the invoices referred to by Mr Tickle.
Clause 1 of the Agreement is clear, the items being sold by Mr Tickle and purchased by Miss Willcox are a “quantity of good and components constituting a kit home described in the items set out in Schedule A together with the additions and deletions, if any, to those items specified in Schedule B”.
The items claimed by Miss Wilcox are not in Schedule A and there is no Schedule B. Accordingly, Mr Tickle was not required to supply them, though he has in fact paid for a portion of the claim in any event.
Deck Max clips for decking: Claimed 4 boxes @ $294.72 + GST = $1,296.77.
There was dispute about whether the deck max clips should have been supplied as part of the Kit.
Mr Tickle explained to the Tribunal about how he supplies standard screws for decking in the Kit, which results in the top of the screw being seen in the decking. He went on to describe the deck max system which routers out the side of the timber decking for the clips to be used and results in a superior finish as the fixings cannot be seen – although at greater cost.
Mr Tickle gave evidence that he had supplied the standard screws and that, unbeknown to him, the carpenter bought deck max clips and didn’t use the screws supplied. He went on to say that the carpenter had worked on a previous kit home of his which used the deck max clip system but that, in that case, the owners had paid extra for the deck max clip system to be used.
Mr Tickle did not have a specific invoice or receipt for the standard screws he said he had supplied and said that he buys them in bulk and has a store of them in his shed.
Miss Willcox gave evidence that neither she nor her partner had ever seen the standard decking screws and that since the carpenter had started with the deck max clip system, she needed to continue with that system and that she paid for the four boxes, as claimed, to do this.[44]
[44]Miss Willcox referred to an invoice from Homegrown Hardwoods, no. 4040 dated 1 March 2011 contained with Exhibit 2.
The Tribunal notes that Schedule A to the Agreement includes, under the heading ‘Framing’ Decking for all deck areas without reference to the method of fixing. It would seem reasonable that, if a method of fixing, other than the standard method used, was to be adopted, that it would have been specifically referred to in the quotation.
Whilst it is unfortunate for Miss Willcox that the carpenter used a system that was not provided for in the Kit, it is not the responsibility of Mr Tickle to compensate Miss Willcox for the continuation of that system. Miss Willcox can take some comfort in knowing that a superior decking system has been used on her home which is likely to add value to the property.
Freight (included in quote from Dave Baldwin) and Freight for materials to Magnetic Island: Claimed at $270 + GST = $297.00 and $4,000.00 + GST = $4,400.00 respectively.
On the evidence of Miss Willcox, Mr Baldwin did not attend at the property to undertake any of the quoted works[45]. For this reason, freight will be dealt with as a single item.[46]
[45] Annexure “M” to Exhibit 21.
[46]It is also noted that Mr Tickle has already conceded $300 worth of freight. See reference 10 herein.
Miss Willcox advised the Tribunal that four truck loads of supplies would need to be transported from the mainland to the Island at a cost of $1,000 + GST per truck. The trucks would contain the gyprock, the fascia and guttering, doors and finishing of materials and one for excess supplies. The four trucks was not necessarily as a result of the volume of supplies, but the order that supplies were required in and that there was little suitable storage available on site to allow all items to be brought over together.
Mr Tickle responded by saying that he could fit it all into one truck load and that, when he is pricing, he is able to save on freight by bringing the supplies across in bulk and storing them on his property until they are needed.
Miss Willcox did not provide any objective evidence of the costs that would actually be incurred in freighting the supplies across; however, Mr Tickle did not dispute the cost per truck, rather the number of trucks required.
After taking into account the evidence of both parties, the previous admissions by Mr Tickle and the previous determinations in respect of claims made (and resulting materials that are required to be supplied at the expense of Mr Tickle) the Tribunal is prepared to allow Miss Willcox additional freight in the sum of $2,200.00 including GST, equating to two trucks. The reduction from four trucks is as a result of the items which this Tribunal has determined were not the responsibility of Mr Tickle and the fact that the fourth truck appeared to be in addition to actual requirements.
In addition to these items,[47] Miss Willcox had made a further claim in respect of the following item.
[47] Listed in Annexure “O” to Exhibit 21.
Additional roof trusses: Claimed 9 @ $726 inclusive of GST = $6,534.00.
There was dispute about whether the additional roof trusses should have been supplied as part of the Kit.
In giving evidence, Miss Willcox referred to the engineering plans for the home which clearly show 13 roof trusses for the home when only four roof trusses were supplied by Mr Tickle. This is not disputed by Mr Tickle.
What is disputed by Mr Tickle is that 13 roof trusses were required for structural stability of the home.
The Tribunal notes that Schedule A to the Agreement includes under the heading ‘Framing’, Pre-fabricated steel roof trusses. No specific number of roof trusses is listed. In the absence of a specific number, it would be reasonable for the purchaser to think that they would be supplied with those items in accordance with the requirements detailed in the Plans. How else would they know how many they were to receive?
Accordingly, although Mr Tickle is at liberty to query with an expert as to why they have made the decision they have with respect to a particular item detailed on a plan and whether or not Mr Tickle agrees with the decisions and choices made by the relevant experts who have prepared the architectural and / or engineering plans, in the absence of a specific number of roof trusses having been listed in Schedule A to the Agreement, the Tribunal considers that he must supply the number referred to in the plans.[48]
[48] In saying this, the Tribunal notes and take into account Exhibit 21 Annexure H.
Therefore, the Tribunal finds that Mr Tickle should have supplied a total of 13 roof trusses to Miss Willcox and orders that Mr Tickle compensate Miss Willcox for the nine additional roof trusses claimed by Miss Willcox at the total cost of $6,534.00.[49]
[49]Miss Willcox obtained the cost of the roof trusses from an email sent by Quality Steel Fabrications & Engineering Pty Ltd dated 22 August 2011 contained within Exhibit 2. Mr Tickle did not dispute the cost estimate provided.
The following four items are items that Mr Tickle had included in the figure of $81,697.73[50] representing the various tradespeople and other associated invoices he says he paid on behalf of Miss Willcox. The Tribunal has accepted that Mr Tickle has paid this amount, however, Miss Willcox denies that she is responsible for these four items and says that it is Mr Tickle who is liable.
[50] Referred to in paragraph 17 herein.
Timber flooring: Claimed at $9,216.90 including GST.
It was agreed that this item should not have been supplied as part of the Kit.
Mr Tickle is claiming an additional payment for the timber flooring as it was charged to his account with Homegrown Hardwoods, although not ordered or authorised by him. The Homegrown Hardwoods invoice[51] refers to purchase order number 0151. Mr Tickle exhibited a purchase order number 0151 from his purchase order book which was an unused, blank purchase order.[52]
[51] Exhibit 14.
[52] Exhibit 13.
Miss Willcox also said that she had not authorised the ordering of the timber flooring and that she would not have ordered it at that stage as there was nowhere to store it. She admitted that the flooring is the one that her and her partner chose and that they will use it in the house – just that she is not sure how much of what was ordered they will use. Miss Willcox gave evidence that she did not ask the representative at Homegrown Hardwoods[53] to measure up the floor however, in reply, Mr Tickle stated that he had given the representative a copy of the floor plan and, accordingly, in his evidence, would have been able to measure up the quantity required.
[53] The parties agreed that Michael King was the representative.
Mr Tickle said that this item had already been admitted by Miss Willcox in the exchange of correspondence between the parties’ solicitors before the matter came before the Tribunal[54] and that no reasonable explanation had been offered as to why that admission should be withdrawn.[55]
[54] Annexure “C” to Exhibit 21.
[55]Miss Willcox had referred to being under “duress” in the material she filed in the Tribunal. However in giving evidence she confirmed that she had used this expression in the context of feeling extremely overwhelmed because she was in a solicitor’s office and not because she was under any duress, in the true meaning of the word.
The issue here is not whether it is the correct item as chosen by Miss Willcox, the dispute comes down to the ordering of the flooring (in terms of quantity and timing) and a denial by both parties that they had ordered it. Relevantly, Mr Tickle has paid for the flooring to date and Miss Willcox has previously admitted that she will use it in the house and is liable to repay him for the timber.
Accordingly, the Tribunal orders that Miss Willcox repay Mr Tickle for the timber flooring ordered and placed on his account in the sum of $9,216.90. The Tribunal notes that any order in favour of Miss Willcox in respect of this item would have seen Miss Willcox significantly and unjustly enriched at the expense of Mr Tickle.
Kwila timber for feature toe and handrails: Claimed at $4,838.82 inclusive of GST.
The issues and submissions by the parties in respect of this item are similar to those in the previous item.
Mr Tickle is claiming an additional payment for the Kwila timber as it was charged to his account with Homegrown Hardwoods, although not ordered or authorised by him. The Homegrown Hardwoods invoice[56] refers to purchase order number 0201. Mr Tickle was adamant that he did not order this timber for Miss Willcox and referred to the fact that he has not yet exceeded purchase order number 100 in his purchase order book and said that it was therefore not possible that he had ordered the timber.
[56] Exhibit 15.

As with the previous claim, Mr Tickle noted that this item had already been admitted by Miss Willcox in the exchange of correspondence between the parties’ solicitors before the matter came before the Tribunal and that no reasonable explanation had been offered as to why that admission should be withdrawn.
The Tribunal orders that Miss Willcox repay Mr Tickle for the Kwila timber ordered and placed on his account in the sum of $4,838.82. Again, the Tribunal notes that any order in favour of Miss Willcox in respect of this item would have seen Miss Willcox significantly and unjustly enriched at the expense of Mr Tickle.
Invoice from The Steel Barn: Claimed at $1,048.00 inclusive of GST.
Miss Willcox submitted that that the steel comprising this invoice should have been included in the material supplied as part of the Kit as it was required for the structural stability of the house. No further detail or evidence was provided in this regard. In the event that the Tribunal accepted Miss Willcox’s evidence, then Mr Tickle would have to absorb the cost of this item.
Mr Tickle says that the steel was not required for the structural stability of the house and that he ordered it on the request of Miss Willcox and that, therefore, he was entitled to be paid for this steel over and above the contract price for the Kit.
Photographs of the steelwork were exhibited[57] and Mr Tickle told the Tribunal that the materials purchased from the Steel Barn were used in place of the material supplied with the Kit.
[57] Exhibit 18.
The Tribunal finds that Mr Tickle ordered the material purchased from the Steel Barn at the request of Miss Willcox and orders that Miss Willcox repay Mr Tickle for the steel ordered in the sum of $1,048.00.
Invoice from Stuart Head: Claimed at $330.00 inclusive of GST.
Miss Willcox submitted that she should not be required to pay for this invoice[58] as she subsequently had to have the inspections and certification carried out again by the Burdekin Shire Council.
[58] Exhibit 17.
Despite the fact that Mr Head had forwarded the certification directly to Mr Tickle, Mr Tickle gave evidence that it was the carpenter, Mr Lynham who had arranged for Stuart Head to certify the work, not him. He said that Mr Head forwarded the certification directly to him as Mr Head knew he was working on the project. Miss Willcox was not aware who had arranged for the certification.
Although the Quotation for Kit Supply[59] includes engineer’s certification, the subsequent Agreement does not. The Agreement refers to and includes only the items set out in Schedule A,[60] in addition to the Plans.
[59] Exhibit 5.
[60] As there is no Schedule B.
The Tribunal notes that this item had already been admitted by Miss Willcox in the exchange of correspondence between the parties’ solicitors before the matter came before the Tribunal[61] and that no reasonable explanation had been offered as to why that admission should be withdrawn.
[61] Annexure “C” to Exhibit 21.
The Tribunal finds that Miss Willcox is responsible for the value of the invoice in the sum of $330.00.
Therefore, the Tribunal is satisfied that Miss Willcox is liable for the full $81,697.73 claimed by Mr Tickle.
The final item for determination by the Tribunal is the work performed by Mr Tickle: Claimed at $9,614.00 inclusive of GST.
The terms of the oral agreement reached between the parties in respect of this aspect of the work were very limited and, on the evidence of both parties, there was no agreement as to a fee that Mr Tickle would charge for his services. Not that it was agreed that Mr Tickle wouldn’t charge, but that the fee was not discussed.
Mr Tickle gave evidence that, at the time when his role was discussed, he didn’t think there would be as much involved as what ended up being required of him. Mr Tickle said he thought he would simply need to find the trades required and no more. Mr Tickle said that Miss Willcox was aware of what he was doing and would ask him to organise meetings on site. He admitted that he did not keep a diary or time sheet of the time spent but that he had estimated the hours based on the overall duration of the work. From the evidence presented, it is obvious to the Tribunal that Mr Tickle has spent considerable time assisting Miss Willcox in the organisation of trades to erect the Kit.
Miss Willcox said, on the one hand, that Mr Tickle didn’t do that much at all yet, on the other, that there was naivety on her part. She also said that she never expected him to do it for nothing.
In terms of the invoice itself,[62] Miss Willcox denied that there were two return trips, only one, but otherwise agreed with the cost per trip. Regarding the 200 hours claimed, she said she had “no idea”.
[62] Exhibit 23.
In the absence of evidence from Miss Willcox as to the value of the service provided by Mr Tickle, the Tribunal accepts the evidence of Mr Tickle[63] and orders that Miss Willcox pay to Mr Tickle the sum of $9,614.00 as claimed.
[63]The Tribunal notes that, as a percentage of the total cost of the home, the figure claimed by Mr Tickle appears reasonable.
Therefore, the financial position of the parties, after taking into account the orders made herein, is as follows:
The purchase price of the Kit and the Plans $222,680.00[64]
[64] Paragraph 1 herein.

-the value of any Kit items that were not supplied $ 64,124.91[65]
[65] The total of paragraphs 11, 13, 15, 29, 58, 65, 88, 111 & 119 herein.
and delivered by Mr Tickle or otherwise
conceded by Mr Tickle as being deductions

+ the value of the work performed by the $ 81,697.73[66]

[66] Paragraph 144 herein.

various trades together with other
associated invoices paid for by Mr Tickle
-the amount paid by Miss Willcox to date $227,680.00[67]
Sub Total $ 12,572.82

+ Work performed by Mr Tickle $ 9,614.00[68]

___________
TOTAL AMOUNT $ 22,186.82

Miss Willcox pay to Mr Tickle
[67] Paragraph 18 herein.
[68] Paragraph 150 herein.

Interest

The Agreement[69] allows for Mr Tickle to charge Miss Willcox interest at the rate of 7.5% from the day following the due date of a tax invoice, in the absence of payment, until payment is made. The invoice is dated 15 June 2010[70].
[69] At clause 5(b)(ii).
[70] Annexure W to Exhibit 21.
Accordingly, the Tribunal orders that Miss Willcox pay interest to Mr Tickle in the sum of $2,258.82 and continuing at a rate of $2.58 per day until such time as payment is made.[71]
[71]Calculated at 7.5% per annum on the sum of $12,572.82 for 2 years and 155 days (from 16 June 2010 to 16 November 2012). Interest is not payable on the sum of $9,614.00.

Costs

The starting point concerning costs in the Tribunal is that each part must bear its own.[72] This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party.[73] The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker. In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.[74]
[72] Queensland Civil and Administrative Tribunal Act 2009 (the “Act”), s 100.
[73] Ibid, s 102(1).
[74] Ibid, s 102(3).
Although Miss Willcox did not claim costs in her application, Mr Tickle claimed costs in his response and cross-application.
Having regard to the discretionary power to award costs, the Tribunal has taken into consideration factors such as the self representation of the parties at the hearing and the outcome of the case as determined by the Tribunal and, following consideration, the Tribunal is not satisfied that it is in the interests of justice to make an order for costs.