Wilsarose Trading Pty Ltd t/a Garage World Townsville v Jones
[2011] QCAT 332
•20 July 2011
| CITATION: | Wilsarose Trading Pty Ltd t/a Garage World Townsville v Jones [2011] QCAT 332 |
| PARTIES: | Wilsarose Trading Pty Ltd trading as Garage World Townsville |
| v | |
| Denise Jones |
| APPLICATION NUMBER: | BDL340-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 21 April 2011 |
| HEARD AT: | Townsville |
| DECISION OF: | Ms Keta Roseby, Member |
| DELIVERED ON: | 20 July 2011 |
| DELIVERED AT: | Townsville |
ORDERS MADE: | 1. The respondent pay the applicant the amount of $3,847.83 by 4.00pm on 17 August 2011. |
| CATCHWORDS : | Queensland Building Services Authority Act 1991, s77; whether building work defective. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self-represented |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
Background
Wilsarose Trading Pty Ltd trading as Garage World Townsville (applicant) and Ms Denise Jones (respondent) entered into a contract on 29 September 2009 whereby Garage World would supply and install a 9m x 6m x 2.7m shed with a 9m x 3m x 2.55m awning for Ms Jones at the total contract price of $26,673.90, inclusive of GST (the Contract).
The Contract was subsequently varied on 20 November 2009 by the addition of a roller door, at the request of Ms Jones, at a cost of $990.00, inclusive of GST. The Contract was further varied on 14 December 2009 by the reduction of $385.00, inclusive of GST, for Garage World’s use of Ms Jones’s fill on site in the slab stage. The new total contract price, as a result of these variations, was $27,278.90, inclusive of GST.
Ms Jones made two payments to Garage World: $1,300.00 on 29 September 2009 (the deposit) and $22,800.00 on 23 November 2009.
These facts are not in dispute. The dispute arises in respect of the balance of the total contract price of $3,178.90.
Garage World, in its application filed on 3 September 2009, seeks payment of the $3,178.90 by Ms Jones in accordance with the terms of the Contract, together with its costs incurred and interest.[1]
[1]The application is an Application for minor civil dispute – minor debt, however, by Order of the Judicial Registrar on 12 October 2010, the application was removed from the minor civil dispute list Townsville and placed on the building list and to be dealt with in accordance with Practice Direction 3 of 2010 and the Tribunal has the jurisdiction to hear the dispute by virtue of section 77 of the Queensland Building Services Authority Act 1991.
Ms Jones, in her handwritten response filed 1 October 2009, states:
“Garageworld [sic] have made no effort to repair the concrete slab that forms the lean to area.
Even though the BSA Authority [sic] was involved and said that the workmanship could have been better. The concrete slab is cracked, but to regulation standards according to the BSA. We are worried that in time the slab will get worse, and the cracks that now appear will get substantially worse. We are concerned, that the outside slab is different to the inside slab and this might be a problem with the concrete mix.
This situation needs to be resolved by both parties.
We have contracted garageworld [sic] to construct a shed/garage under contractual arrangements. This was not a cheap shed as you can see from the invoices. All we want is value for monies paid. There is a small amount owing on the contract that has been retained by us, for the purpose of this complaint to be resolved. But we are not getting anywhere with Garage World in Townsville.”
Mr Mark Roberts an employee and representative of Garage World appeared at the hearing on 21 April 2011. There was no appearance at the hearing for Ms Jones.
Before the commencement of the hearing, the Tribunal’s Hearing Support Officer conducted a search of the court complex in an attempt to locate Ms Jones. In addition, attempts were made to contact Ms Jones by telephone without success. The records of the Tribunal indicate that the Directions dated 15 December 2010 and the Directions Varying Dates dated 19 January 2011, both stating that the matter was listed for a hearing in Townsville at 1.00pm on 21 April 2011 were posted to Ms Jones on 16 December 2010 and 19 January 2011 respectively. In apparent compliance with paragraph 1 of the Directions dated 15 December, the Tribunal received correspondence from Ms Jones dated 9 January 2011 which initially states: “Please find enclosed 2 copies of evidence statements as requested by yourselves.” The records of the Tribunal also indicate that the Notice of Hearing, stating that the matter was listed for hearing on 21 April 2011 at 1.00pm, together with details as to the location, was posted to Ms Jones on 16 December 2010. Accordingly, the Tribunal is satisfied for the purposes of section 93 of the Queensland Civil and Administrative Tribunal Act 2009 that Ms Jones received notice of the hearing.
Issue for Determination
In determining whether to make an order for the payment of money by Ms Jones in final payment pursuant to the Contract, as claimed by Garage World, the Tribunal must consider and determine whether or not the concrete slab that forms the lean to area is defective building work.
Evidence
At the hearing, Mr Roberts tendered the written statement of evidence of Mr Paul Lowis together with supporting documents[2]. At the request of the Tribunal, Mr Lowis subsequently gave sworn evidence, by telephone. Included in the material was a letter from the Building Services Authority (BSA) to Garage World dated 13 July 2010 advising that the BSA had received a Complaint Form from Mrs D & Mr M Jones and that an inspection was to be conducted by a BSA Building Inspector on 27 July 2010 at 9.00am. The copy of the Complaint Form lists the complaint items as follows:
[2] Exhibit 1.
1. “Concrete not level water comes in.
2.Concrete cracked in several places on slab like a spiders [sic] web. Drain pipes short for run off, extended ourselves.”
Also included in the material was a BSA Resolution Services Initial Inspection Report in respect of the inspection conducted at 9.00am on 27 July 2010. The Report states as follows:
“The concrete slab is level across one end and has approximate 12-15mm slope on the other end.
Carport concrete slab has hairline non-structural cracks in places.
Item number 1 of your complaint form has been investigated and there was insufficient evidence to reveal any obvious defective construction practices by [Wilsarose Trading Pty Ltd] at the time of inspection. Therefore BSA is unable to provide you with any further assistance with resolution of this particular matter.
In conclusion, the Queensland Building Services Authority poses to take no further action in relation to this particular defect.”
In his evidence, Mr Lowis states that, prior to the inspection conducted by the BSA, he, on behalf of Garage World, and Ms Jones agreed that if the BSA found Garage World “at fault” Garage World would “rectify the issue” and Ms Jones would “finalise the account, and vice versa”.
Mr Lowis also states that following the inspection conducted by the BSA, he discussed the “outstanding account” with Ms Jones and that she stated that “she wanted a discount and she would finalise the account”. Mr Lowis’s evidence is that Garage World discounted the invoice by $78.00 on the condition that it was paid within 7 days.[3]
[3] Letter from Garage World to Ms Jones dated 10 August 2010.
Ms Jones did not file any supporting material or documentation in the Tribunal. Her reference to enclosing 2 copies of “evidence statements” in her correspondence of 9 January 2011 to the Tribunal it seems actually refers to further copies of her Response being provided to the Tribunal and not additional material or documentation to support her Response.
Findings
The Tribunal accepts the unchallenged evidence of Mr Lowis, including the findings of the BSA detailed in the Initial Inspection Report prepared following the inspection conducted on 27 July 2010, in respect of the quality of the work performed by Garage World, and finds that the concrete lean to slab is not defective building work.
The Tribunal, having been satisfied that the concrete lean to slab is not defective building work, determines that the balance of the total contract price of $3,178.90 is owed by Ms Jones to Garage World.
Interest
In its application, Garage World claimed interest on the balance of the total contract price of $3,178.90 at the rate of 20% pursuant to clause 4.5 of the Contract which states:
“Interest payable on outstanding payments: If the purchaser fails to make any payment to the Builder within the time for payment under this Contract, the Builder is entitled to interest on the outstanding amount at the rate of 20% per annum calculated on a daily basis, payable from the time for payment until the date of payment.”
At the hearing, Garage World advised that, although clause 4.5 of the Contract provided for interest at the rate of 20%, interest at the current bank rate of 9.74% was now being claimed.
Having determined that the balance of the total contract price of $3,178.90 is owed by Ms Jones to Garage World, Garage World is entitled to interest. Accordingly, the Tribunal orders that Ms Jones pay interest in the amount of $457.23 calculated at 9.74% per annum on $3,178.90 from 27 January 2010 to 20 July 2011 (being 539 days).
Costs
The starting point concerning costs in the Tribunal is that each party must bear its own.[4] 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.[5] 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.[6]
[4] Queensland Civil and Administrative Tribunal Act 2009, s 100.
[5]Ibid, s102 (1). It is also noted that, pursuant to section 77(2) (h) of the Queensland Building Services Authority Act 1991, the Tribunal may award costs.
[6] Ibid, s102 (3).
Garage World claims the amounts of $92.00 in respect of the filing fee and $119.70 in respect of the service fee.[7] Having regard to the discretionary power to award costs, the unchallenged evidence of Mr Lowis in respect of the agreement between he and Ms Jones as to what each party would do upon receipt of the BSA report together with the conversation that followed the inspection and the fact that Ms Jones failed to attend the hearing on 21 April 200, the Tribunal is satisfied that it is appropriate to make an order for costs in the amount of $211.70 as claimed.
[7]These figures were the increased figures claimed at the hearing on the basis of actual costs incurred. In respect of the service fee, Mr Roberts tendered into evidence (Exhibit 2) a Report and Tax Invoice from Mr Ian Kennedy, Bailiff stating the service fee to be $119.70.
The Tribunal orders that Ms Jones pay the amount of $3,847.83, inclusive of interest and costs, to Garage World by 4.00pm on 17 August 2011.
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