Zoja Pty Ltd v Frost Constructions Pty Ltd - [2014] QCAT 214

CITATION:

Zoja Pty Ltd v Frost Constructions Pty Ltd
[2014] QCAT 214

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

APPLICATION NUMBER:

BDL230-12

MATTER TYPE:

Building matters

HEARING DATE:

29 May 2013; 26 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell,

DELIVERED ON:

20 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Claims and Counter Claims are dismissed.

CATCHWORDS:

Building work – whether building contract – where no building contract in writing – whether claims made were a building dispute within the jurisdiction of the Tribunal – where quantum meruit counterclaim – Whether Tribunal had jurisdiction to determine a quantum meruit claim when the dispute was not a Domestic Building dispute and was not arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Zoja Pty Ltd represented by Mr G Nelson

RESPONDENT:

Frost Constructions represented by Mr R Enzby of Hemming & Hart Lawyers and Mr Frost

REASONS FOR DECISION

The respondent was approached by the applicant to complete construction at 117 Swan Street, Gordon Park, which was a four unit multi-storey dwelling.
The applicant contends that there was a contract for building works. The respondent denies there was a contract. No written contract has been produced.
Construction commended in October 2010 and was complete on or about September 2011.
The applicant filed an application with the Tribunal on 16 July 2012. An amended application was filed on 17 November 2012. The applicant has several remaining complaints concerning the construction:
a)    Claim D: A claim of $3,399.44 (amended to $3,090.40) for additional costs because beam 7 was installed without being fireproofed according to BSA standards.
b)    Claim E: A claim for $729 because external sheeting of a bi-fold door was too long causing it to become jammed.
c)    Claim I: A claim for $570.50 because of excess yellow-tongue flooring used and metal ceiling batons belonging to the applicant were taken from site by the respondent without compensation.
d)    Claim K: A claim for $1,169 because deliveries to site of building materials were excessive and ordering was inefficient.
e)    Claim M: A claim for $2,159 the costs of engaging a cost estimator.
f)     Claim N: A claim for $107.46 because the applicant was charged and paid for building materials that were not used at construction.
g)    Claim R: Mr Nelson seeks to charge $4,600 (amended to $6,400 exhibit 10) for his time in preparing the applicants claim.
h)   Claim S: A claim for $700 because the applicant was charged for labour on days when no work was carried out by the respondent.
i)     Claim T: A claim for 11,251.81 because a 5% cost plus margin excluding wages was agreed upon whereas the respondent charged a 10% costs plus margin.
The applicant relied on written submissions and annexures and did not call any witnesses.
The respondent’s counterclaim is in respect of labour and…

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: [2014] QCAT 214
Decision Date

CaseChat Overview and Summary

Zoja Pty Ltd initiated proceedings against Frost Constructions Pty Ltd in the Queensland Civil and Administrative Tribunal (QCAT) seeking compensation for various issues related to the construction of a multi-storey dwelling at 117 Swan Street, Gordon Park. The applicant alleged that the respondent had not completed the construction works in accordance with the agreed terms and sought damages for defects and inefficiencies in the construction process. The respondent denied the existence of a contract and counterclaimed for unpaid invoices. The central legal issues in this case were whether there was a binding contract between the parties, the validity of the applicant's claims for damages, and the respondent's counterclaim for outstanding payments. The court had to determine if the Tribunal had jurisdiction to hear the matter and if so, whether the claims and counterclaims were substantiated.

The court found that no written contract existed between the parties, and the applicant failed to prove that the respondent was responsible for the alleged defects or inefficiencies. The court examined each claim individually and found that the applicant did not provide sufficient evidence to support most of their claims. For instance, the court rejected the claim regarding the fireproofing of a beam, finding that the respondent was not responsible for the rectification costs as the beam was constructed according to the provided plans. Similarly, the court dismissed claims related to the external sheeting of a bi-fold door, excess yellow-tongue flooring, and inefficient ordering of building materials. The court also found that the respondent's counterclaim was not sufficiently particularised and could not be substantiated with the evidence provided.

Furthermore, the court addressed the issue of jurisdiction, concluding that the Tribunal did not have the authority to hear the matter as it did not fall under the definition of a 'building dispute' as per the Queensland Building Services Authority Act 1991. The dispute was characterised as a minor commercial building dispute but did not involve a claim or dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for such work. Therefore, the court held that it lacked jurisdiction to determine the quantum meruit claim made by the respondent.

In conclusion, the Tribunal dismissed all claims and counterclaims due to lack of evidence and jurisdiction. The decision highlights the importance of having a written contract and the necessity for clear evidence to substantiate claims in construction disputes. The court's ruling underscores the limited scope of the Tribunal's jurisdiction in building disputes and the stringent requirements for establishing the validity of claims and counterclaims.

Orders