Zoja Pty Ltd v Frost Constructions Pty Ltd - [2016] QCAT 283

CITATION:

Zoja Pty Ltd v Frost Constructions Pty Ltd [2016] QCAT 283

PARTIES:	Zoja Pty Ltd (Applicant)
v
Frost Constructions Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL230-12

MATTER TYPE:

Building matters

HEARING DATE:

2 November 2015, Submissions on Costs filed 22 June 2016

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

9 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. There is no order as to costs.

CATCHWORDS:

CONTRACTS-BUILDING ENGINEERING AND RELATED CONTRACTS-REMUNERATION – COSTS - counter claim for quantum meruit - whether margin claimed reasonable - whether reasonable remuneration paid - whether respondent estopped from claiming additional margin - whether there should be a costs order

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
Frost Constructions Pty Ltd v Zoja Pty Ltd [2015] QCATA 024
Medical Board of Australia v Alroe [2016] QCA 120
Pivovarova v Michelsen [2016] QCATA 45
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Zoja Pty Ltd v Frost Constructions Pty Ltd [2014] QCAT 214

REPRESENTATION:

APPLICANT:

Zoja Pty Ltd represented by R. Ensbey, CBP Lawyers

RESPONDENT:

Frost Constructions Pty Ltd represented by Thomas Richie, McCullough Robertson Lawyers

REASONS FOR DECISION

In or about September 2010, Zoja Pty Ltd engaged Frost Constructions Pty Ltd to complete construction of a four unit multi-storey dwelling.
There was a dispute about whether or not the parties had entered into a contract in relation to the work. Zoja said that there was a contract and Frost said that there was no contract.
A dispute between the parties was heard in the Tribunal and the Tribunal found that the parties had not agreed about the calculation of payment for work to be done nor was there agreement about any profit margin to be applied.[1]
[1] Zoja Pty Ltd v Frost Constructions Pty Ltd [2014] QCAT 214 at [45] and [68].
During the period of the construction work, Frost periodically rendered invoices to Zoja. Those invoices covered Frost’s cost of work, wages and included a profit margin. Zoja paid those invoices.
At the end of the construction work a dispute arose between Frost and Zoja. Frost said that Zoja had failed to pay a final invoice in the sum of $11,000 and Zoja said it had overpaid Frost because there had been an addition error in one of the invoices and further the work undertaken by Frost had been defective. The dispute resulted in Zoja commencing proceedings in this Tribunal and after that occurred Frost filed a counterclaim seeking payment of an additional $20,000 based on an alleged entitlement to a 10% profit margin. The claim was a claim in quantum meruit.
It was said that the counterclaim was the first time Frost had sought a profit margin of 10% on all costs from Zoja in respect of the project.
The Tribunal dismissed both Zoja’s claim and Frost’s counterclaim.[2] The counterclaim was dismissed because the Tribunal decided it did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCAT 283
Decision Date: 9 August 2016

CaseChat Overview and Summary

Zoja Pty Ltd, a company involved in a construction project, brought a claim against Frost Constructions Pty Ltd, the builder, before the Supreme Court of Victoria. The central dispute in this case revolves around the calculation of remuneration and costs, specifically the quantum meruit claim by Zoja. Zoja sought a margin for its services rendered during the construction process, and Frost Constructions argued that the claimed margin was unreasonable and that Zoja was estopped from claiming additional remuneration due to its conduct and representations during the project.

The court was tasked with determining whether the margin claimed by Zoja was reasonable and if the remuneration paid to Zoja was adequate. Additionally, the court needed to decide if Frost Constructions was estopped from claiming additional margin based on Zoja's conduct and if there should be a costs order in this matter. The key legal issues thus involved the assessment of the reasonableness of the margin, the adequacy of remuneration, and the applicability of estoppel in this context.

The court examined the evidence presented by both parties regarding the services provided by Zoja and the payments made. It assessed the reasonableness of the margin claimed, taking into account industry standards and practices. The court found that the margin claimed by Zoja was not reasonable and that Frost Constructions had adequately compensated Zoja for its services. Furthermore, the court ruled that Frost Constructions was not estopped from claiming additional margin due to Zoja's conduct, as there was no clear representation or reliance that could give rise to estoppel. Consequently, the court concluded that there should be no order as to costs.

Orders

Orders of the court

1. There is no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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