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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Stanton v Electrics Downunder Pty Ltd  QCAT 484
Noel Edward Stanton
Electrics Downunder Pty Ltd
The matter was heard on the papers
Senior Member Brown
27 June 2017
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where respondent performed building work – entitlement of respondent to recover monies in counter application
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where applicant failed to comply with Tribunal directions – where respondent unnecessarily disadvantaged by applicant’s conduct – where applicant’s proceeding dismissed – where respondent entitled to final decision in the counter application
Queensland Building and Construction Commission Act 1991 (Qld) s 4(5), s 77(1), s 75(1)(c), s 77(2)(c), Schedule 1B, Schedule 2
Queensland Building and Construction Commission Regulation 2003 (Qld) s 34B(1), s 34B(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48(1)(a), s 48(1)(b), s 48(1)(d), s 48(1)(g), s 48(2)(b)(i), s 48(3), s 45
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- Mr Stanton contracted to build a home for Mr Shaun Cook. Electrics Downunder Pty Ltd performed electrical installation work at the home. Mr Stanton and Mr Cook fell into dispute. The contract was terminated. Mr Stanton filed an application for a domestic building dispute claiming relief from payment of an amount claimed by Electrics Downunder of $3,443.37 and an award of damages in the amount of $5,000.00.
- Electrics Downunder filed a response and counter application. The counter application claimed $8,433.37 for money due and owing by Mr Stanton for electrical contracting work performed by Electrics Downunder.
- Directions were made by the Tribunal to progress the proceeding to a hearing. A compulsory conference was held on 17 November 2016. Directions were made on 17 November 2016, among other things, listing the matter for a directions hearing on 1 February 2017 and a hearing in Mackay on 24 March 2017. The Tribunal registry forwarded the directions to the parties by post and by email on 30 November 2016.
- Mr Stanton failed to attend the directions hearing on 1 February 2017.
- Mr Stanton failed to attend the hearing on 24 March 2017.
- On 24 March 2017 Mr Stanton was directed to provide to the Tribunal an explanation in writing for his failure to attend the hearing. The explanation was required to be provided by 31 March 2017 failing which Mr Stanton’s application may be dismissed. Mr Stanton failed to comply with the direction.
- On 28 April 2017 the Tribunal directed Mr Stanton to comply with the previous direction to explain his failure to attend the hearing. Mr Stanton was directed to provide the explanation by 12 May 2017 and that if he failed to do so his application would be dismissed and Electrics Downunder would be entitled to a final decision in respect of its counter application. Mr Stanton failed to comply with the direction.
- On 24 May 2017 the Tribunal dismissed Mr Stanton’s application.
- On 24 May 2017 the Tribunal directed Electrics Downunder to file and serve upon Mr Stanton a statement of evidence in support of its counter application by 12 June 2017. Electrics Downunder complied with this direction.
- On 27 June 2017 I ordered that Mr Stanton pay to Electrics Downunder $9,309.14 by 4:00pm on 18 July 2017. These are the reasons for my decision.
- Mr Stanton has consistently and persistently failed to comply with Tribunal directions. He has failed to attend a directions hearing. He has failed to attend a hearing. He has failed, as directed, to explain to the Tribunal his failure to attend the hearing. He has had ample opportunity to comply with Tribunal directions. I am satisfied that Mr Stanton has failed to comply with Tribunal directions. I am satisfied that Mr Stanton’s conduct in not attending the hearing, which he has failed to explain, caused the hearing to be adjourned.
- Section 48(1) of the QCAT Act provides:
This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
- not complying with a tribunal order or direction without reasonable excuse; or
- not complying with this Act, an enabling Act or the rules; or
- asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
- causing an adjournment; or
- attempting to deceive another party or the tribunal; or
- vexatiously conducting the proceeding; or
- failing to attend mediation or the hearing of the proceeding without reasonable excuse.
- I am satisfied that Mr Stanton’s conduct falls within s 48(1)(a), s 48(1)(b), s 48(1)(d) and s 48(1)(g) of the QCAT Act.
- If the Tribunal is satisfied that a party has acted in a way set out in s 48(1), s 48(2) of the QCAT Act provides:
The tribunal may—
- if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
- if the party causing the disadvantage is not the applicant for the proceeding—
- make its final decision in the proceeding in the applicant’s favour; or
- order that the party causing the disadvantage be removed from the proceeding; or
- make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.
- The application by Mr Stanton has been dismissed, leaving the counter application by Electrics Downunder as the only proceeding before the Tribunal. For the purposes of the proceeding as it presently stands, Electrics Downunder is the applicant.
- In exercising my discretion to make an order pursuant to s 48(2) of the QCAT Act, I have had regard to s 48(3) of the Act. The directions made in the proceeding have been clear and unequivocal. Mr Stanton has attended a compulsory conference. Mr Stanton has filed in the Tribunal an application and a statement of evidence. There is nothing before me to suggest that Mr Stanton does not understand the Tribunal’s directions. There is nothing before me to suggest that unfamiliarity with Tribunal practices and procedures explains Mr Stanton’s failure to comply with the directions made in the proceeding. The failure by Mr Stanton to engage in the proceeding and to comply with Tribunal directions since December 2016 is, in my view, deliberate.
- I am satisfied that it is appropriate pursuant to s 48(2)(b)(i) of the QCAT Act to make a final decision in the proceeding in favour of Electrics Downunder.
- Mr Stanton operates a business, NES Constructions. He is the owner of that business. He owned and operated that business at all times material to this proceeding. Mr Stanton agreed with Mr Cook to build a dwelling at Alligator Creek in north Queensland. Mr Cook had purchased a vacant lot with the intention of building a shed and a house on the lot. In his affidavit filed in the Tribunal Mr Cook says that:
This project was then started by Nes constructions with the construction of a class 1 A shed in November 2014 with Electrics Downunder Pty Ltd as electrical contractor performing sub surface, site box placement to which Nes Constructions and Electrics Downunder Pty Ltd worked together for placement on house pad, rough in and fitout, to which Nes Constructions had no objections.
- Mr Cook goes on to say that:
In May 2015 a Master Builders Association Residential Construction Contract was initiated with Nes Constructions, under bank finance, with works starting on 13th August 2015, accepting updated quotations from all of my preferred tradesmen and suppliers. Including: Electrics Downunder Pty Ltd …
- Mr Cook says that NES Constructions terminated the contract on 3 June 2016. He says that the house remains incomplete and that he is aware various trades and suppliers have not been paid by Mr Stanton.
- Mr Henry is a director of Electrics Downunder. He has provided an affidavit. Mr Henry says that Electrics Downunder provided a quote for the performance of electrical works at Mr Cook’s residence, being quote number 671 for $8,433.37. Mr Henry refers to the contract between Mr Cook and Mr Stanton containing an allowance of $8,500.00 for electrical work. I am satisfied that the contract between Mr Cook and Mr Stanton contained a provisional sum of $8,500.00 for ‘electrician’. I am satisfied that quote number 671 related to the electrical work to be carried out by Electrics Downunder in the construction of Mr Cook’s dwelling. I am satisfied that the quote was accepted by Mr Stanton and is reflected in the provisional sum in the contract.
- Mr Henry says that Electrics Downunder performed the electrical works at the dwelling in accordance with quote number 671. He says that an invoice, number 796, was rendered by Electrics Downunder to Mr Stanton on 31 January 2016 which was not paid. Mr Henry says that despite the non payment of the invoice, Electrics Downunder completed the agreed works and rendered a final invoice, number 806, which was inclusive of the unpaid invoice.
- Mr Henry says that invoice number 806 has not been paid and that the amount of $8,433.37 remains due and owing to Electrics Downunder by Mr Stanton.
- I find that:
- An agreement was entered into between Electrics Downunder and Mr Stanton pursuant to which Electrics Downunder agreed to perform electrical works relating to the construction of a dwelling for Mr Cook;
- Electrics Downunder performed the electrical works;
- The work performed by Electrics Downunder was domestic building work;
- The work performed by Electrics Downunder was reviewable domestic building work;
- The dispute between Electrics Downunder and Mr Stanton is a domestic building dispute;
- The dispute between the parties is a building dispute which the Tribunal may decide;
- Electrics Downunder issued invoice number 806 to Mr Stanton in respect of the electrical work;
- Electrics Downunder is entitled to be paid the amount claimed under invoice number 806;
- Mr Stanton has failed to pay the invoice.
- Accordingly, I am satisfied that Electrics Downunder is entitled to recover from Mr Stanton the amount claimed under invoice number 806, being $8,433.37.
- The Tribunal may allow a claim for interest on the amount of damages awarded. Interest is calculated in accordance with the Queensland Building and Construction Commission Regulation 2003 (Qld) (“QBCC Regulation”). Unless the parties have agreed otherwise, interest is payable at the rate of 10% on and from the date that the amount became payable until the day the amount is paid. The amount claimed under invoice number 806 was payable within 7 days after the date it was rendered. Accordingly the amount claimed became payable on 8 June 2016 and I allow interest from this date at the rate of 10% which is an amount of $875.77.
- I order that Noel Edward Stanton pay to Electrics Downunder Pty Ltd $9,309.14 by 4:00pm on 18 July 2017.
See QCAT Act, s 45.
See QCAT Rules, rule 51.
ASIC search dated 14.09.2017.
Statement of Shaun Keith Cook dated 27.09.2016.
Affidavit of Russell Henry dated 10.01.2017.
Residential Building Contract, Appendix.
Affidavit of Russell Henry dated 18.10.2016.
Statement of Russell Henry dated 02.06.2017.
Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”), Schedule 1B, s 4(5).
Ibid, Schedule 2.
Ibid, s 77(1).
Ibid, s 77(2)(c).
QBCC Regulation 2003.
Ibid, s 34B(1) and s 34B(2).
- Published Case Name:
Noel Edward Stanton v Electrics Downunder Pty Ltd
- Shortened Case Name:
Stanton v Electrics Downunder Pty Ltd
 QCAT 484
Senior Member Brown
27 Jun 2017