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  • Unreported Judgment

Riddhi Siddhi Pty Ltd v VAC Constructions Pty Ltd

 

[2019] QCAT 201

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Riddhi Siddhi Pty Ltd v VAC Constructions Pty Ltd [2019] QCAT 201

PARTIES:

RIDDHI SIDDHI PTY LTD

(applicant)

v

VAC CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

BDL159-18

MATTER TYPE:

Building matters

DELIVERED ON:

29 July 2019

HEARING DATE:

19 June 2019

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

ORDERS:

  1. That VAC Constructions Pty Ltd pay to Riddhi Siddhi Pty Ltd the amount of $14,860.00 within
    30 days of the date of this Order.
  2. That VAC Constructions Pty Ltd pay Riddhi Siddhi Pty Ltd interest at the rate of 10% per annum on the sum of $14,860.00 from the day after the damages are payable until and including the day the amount is paid.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – minor commercial building contract – breach of contract by builder refusing to complete works – work incomplete or defective – cost of completion and rectification – interest

Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77, Schedule 2 (Dictionary – ‘building dispute’, ‘minor commercial building dispute’, ‘commercial building dispute’ and ‘reviewable commercial work’)

Queensland Building and Construction Commission Regulation 2018 (Qld), s 54

Bellgrove v Eldridge (1954) 90 CLR 613

Clark v Macourt (2013) 253 CLR 1

Robinson v Harman (1848) 154 ER 363

Shevill v Builders Licensing Board (1982) 149 CLR 620

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    This application concerns a minor commercial building dispute.[1] I am satisfied the Tribunal has jurisdiction to deal with the matter.
  2. [2]
    The following facts are uncontentious.
  3. [3]
    The applicant is the tenant of a shop at 1/241 Adelaide Street, Brisbane, Queensland. The applicant conducts a retail food business from that shop under the name Vege Rama.
  4. [4]
    During the period September to October 2017, Ms Ruchika Sharma, owner and operator of the business Vege Rama and director of the applicant, held meetings with Mr Vince Calabro, director of VAC Constructions Pty Ltd in order to discuss the fit out of the shop at 1/241 Adelaide Street.
  5. [5]
    VAC Constructions Pty Ltd was appointed to undertake the work. VAC Constructions Pty Ltd holds a builder’s licence (medium rise and open) and trade contractor licence (carpentry and joinery). Mr Calabro is its nominee holding a builder’s licence and trade contractor licence in the relevant classes.
  6. [6]
    The parties agreed that as licence holder, VAC Constructions Pty Ltd, through
    Mr Calabro, would be responsible for inducting tradespeople working on the site and would work with the kitchen joinery contractor, Trueline Kitchens. Trueline Kitchens was not subcontracted to VAC Constructions Pty Ltd.
  7. [7]
    The building manager at 241 Adelaide Street was at material times, CBRE. The building owner was Australian Unity Fund.
  8. [8]
    Mr Steven Parsons of CBRE had general oversight of work conducted at the shop.
  9. [9]
    The applicant, Riddhi Siddhi Pty Ltd was allowed access to the premises prior to commencement of the lease in order to undertake the fit out. There was a period of approximately four months before trading was to commence.
  10. [10]
    The building owner provided Riddhi Siddhi Pty Ltd with an incentive of $75,000.00 to be used to meet certain costs including the cost of the fit out.

Claim

  1. [11]
    The applicant alleges that the respondent was paid in full, in advance, for its work. However, prior to completion the respondent indicated an intention not to proceed further with the contract and abandoned the works.
  2. [12]
    It is alleged that the respondent did not complete work and that certain work was defective.
  3. [13]
    It is further alleged that Mr Calabro on behalf of the respondent removed stainless steel shelves and a stainless-steel bench and has not returned those items.
  4. [14]
    The applicant claims in its application filed in the Tribunal:
    1. (a)
      restitution of the contract sum of $30,800.00 paid to the respondent;
    2. (b)
      an award for damages and interest on damages in the sum of $19,000.00.
  5. [15]
    The respondent denies liability to reimburse the applicant or to pay any damages for completion and rectification of work performed by it.
  6. [16]
    The Tribunal file does not reveal any response or counter application filed by the respondent. The respondent did not attend a compulsory conference. The respondent’s application filed 10 September 2018 to extend time for compliance with a procedural requirement was accepted as a response on 9 October 2018.
  7. [17]
    On 17 April 2019, the respondent filed a statement given by its director Mr Calabro attaching documents said to bear upon the contract and the dispute.
  8. [18]
    On 17 May 2019, a further statement of Mr Calabro was filed. It added a claim for compensation for excessive time delays on the project, for being accused of stealing, being called to meetings at least three times a week and not being able to complete the project with his own tradesmen. The claim was particularised as:
    1. (a)
      excessive time delays 20 weeks at $2,000.00 per week;
    2. (b)
      not completing with my own tradesmen $8,000.00;
    3. (c)
      police accusations $2,000.00.
  9. [19]
    No material was filed which addressed a cause of action or proof of loss or damage in the amounts claimed. At the hearing, in final submissions, Mr Calabro indicated that the respondent was no longer claiming compensation. The claim is therefore not dealt with in this decision.

Witnesses and Evidence

  1. [20]
    Ms Sharma, director of the applicant, gave evidence. She relied on all material filed by the applicant in the Tribunal, marked as exhibits in the proceeding.
  2. [21]
    Evidence was also given by Mr Cedric Collomb, business manager of Vege Rama consistent with his statement (Exhibit 14). Mr Mahmoud Moussa, plumber of Bass Plumbing Qld gave telephone evidence consistent with his statement dated 11 December 2018 filed in the proceedings (Exhibit 15).
  3. [22]
    Mr Stan Gerbanas, builder, of TAG Projects Trust, provided a statement dated 11 December 2018 filed in the proceedings. Mr Gerbanas was not available to give evidence however he was not required for cross-examination by the respondent. Accordingly, his statement was admitted into evidence (Exhibit 16).
  4. [23]
    Mr Calabro, director of the respondent, gave evidence on behalf of the respondent and relied on his statements filed in the proceedings, together with attachments (Exhibits 17 and 18).
  5. [24]
    At the hearing the applicant tendered three emails between the parties bearing the dates 20 April 2018, 23 April 2018 and 23 April 2018 (Exhibit 19) upon acknowledgement by Mr Calabro that he had received the emails.
  6. [25]
    In addition to the oral evidence given in the matter, I have had regard to all exhibits in determining this matter.

The Contract

  1. [26]
    There is no formal contract between the parties. The contract would appear to be partly oral and partly written. There is insufficient evidence before the Tribunal to determine the oral terms of the contract other than as agreed between the parties that the respondent was engaged to carry out fit out work and that Mr Calabro would supervise tradesmen on site.
  2. [27]
    There is no plan before the Tribunal with respect to the work and there is no scope of works or specification.
  3. [28]
    The only written documents relating to the contract works are:
    1. (a)
      Tax invoice 466 dated 4 December 2017 from VAC Constructions Pty Ltd to Vege Rama in an amount of $30,800.00 inclusive of GST; and
    2. (b)
      Tax invoice 466 dated 30 November 2017 from VAC Constructions Pty Ltd to Vege Rama setting out a breakdown of costs for the job totalling $25,640.00. The breakdown refers to the costs of a plumber, electrical, stone, refrigeration, air conditioning, materials, tiles, labour, dump, painter, timber, ceiling, de fit and planter box.
  4. [29]
    The tax invoice dated 4 December 2017 is expressed to relate to:
    1. (a)
      removal of benches and cupboards and fit out kitchen and servery area for Vege Rama;
    2. (b)
      move all sinks in kitchen area and replumb back to waste pipe;
    3. (c)
      remove all Sumo Salad signage;
    4. (d)
      re-tile around display cabinets;
    5. (e)
      fix bench back to wall and remove planter boxes;
    6. (f)
      remove and replace ceiling in kitchen;
    7. (g)
      remove all hanging shelving.
  5. [30]
    I find that the contract works were as set out in the invoice dated 4 December 2017.

Payment

  1. [31]
    The parties agree that the full sum of $30,800.00 was paid by Australian Unity to the respondent on 22 December 2017. The payment was made in response to a request for payment by the respondent.
  2. [32]
    At that time work had not commenced.
  3. [33]
    Ms Sharma gave evidence that the payment in full was voluntarily made in order to assist Mr Calabro, who had told her that he was going through divorce and had personal issues. As a result, he asked for an advance payment. Ms Sharma gave evidence that she had worked with Mr Calabro in the past and made the decision to advance payment as a matter of good faith.
  4. [34]
    Mr Calabro agreed that he received full payment on 22 December 2017.  His evidence was that he had only asked for part payment in order to pay subcontractors. In the end nothing turns on that point. He accepted the full sum.

Breach of Contract

  1. [35]
    Mr Calabro admits that he left the site on 23 April 2018 with no intention of resuming the job. The respondent advised the building manager by email on 23 April 2018 that it would not continue work on the fit out at 1/241 Adelaide Street and abandoned the work from that date.
  2. [36]
    Mr Calabro accepts that the job was not complete at the time he left the site and that he refused to continue with the contract.
  3. [37]
    Although not expressed in these terms, Mr Calabro suggests by his evidence that there were good reasons for him to terminate the contract. The question arises as to whether the applicant wrongfully repudiated the contract through its conduct, justifying the respondent in accepting that repudiation and terminating the contract.
  4. [38]
    If that is not the case, Mr Calabro on behalf of the respondent may be found to have wrongfully repudiated the contract entitling the applicant to terminate the contract and to recover its loss and damage.
  5. [39]
    The reasons for leaving the project, given by Mr Calabro to the building manager Mr Parsons in his letter dated 23 April 2018, are:
    1. (a)
      all works on site have been supervised and site inductions done by Mr Calabro. He is responsible for the construction zone and all contractors (licences, insurances and safety cards);
    2. (b)
      the client, Riddhi Siddhi Pty Ltd has been bringing their own workers on site and not informing him of the workers; and
    3. (c)
      Ms Sharma has engaged her own plumber to take on works supposed to have been completed by Damian Lacey, plumber appointed by the building manager, as part of all grease trap works.
  6. [40]
    In his statement of evidence (Exhibit 18) Mr Calabro referred to the following further issues:
    1. (a)
      work came to a stop because of grease trap problems. Building management advised that the trade waste pipe did not belong to the shop. That issue took time to resolve by the building management which took control of that issue;
    2. (b)
      when the project was completed Mr Calabro asked for a set of approved plans but was told that his plumber was no good and that Ms Sharma was using her own plumber;
    3. (c)
      Mr Calabro was never told of signs being fitted to the front of the shop, however, that occurred with the result that the footpath was blocked and was a hazard to pedestrians. Mr Calabro was not given the opportunity to notify building management for approval to block part of the pedestrian walkway. He considered his licence was put at risk because of the risk of injury to the public. The building manager raised these issues with Mr Calabro;
    4. (d)
      de-fit of another shop was delayed by delays on the part of the applicant’s other contractors;
    5. (e)
      all works were done to plan but the plan had no approvals, so if something did not look right Mr Calabro had to call a person he knew to question how it should be done;
    6. (f)
      the project was poorly organised and involved wasted time and not being able to complete the project with the respondent’s own crew of workers;
    7. (g)
      works were not completed due to other contractors not completing their work;
    8. (h)
      damage to completed works occurred, for example tiles on the front counter were completed but were damaged due to bringing large sheeting into the store;
    9. (i)
      the air conditioner head had to be moved three times and was dropped off the wall by Ms Sharma’s workers after being installed for the second time. In this regard Mr Calabro has provided a tax invoice from Coolala Refrigeration and Air Conditioning dated 13 April 2018 in the sum of $550.00 inclusive of GST for reinstalling a wall mounted air conditioner. Mr Calabro gave evidence that this contractor has not been paid by the respondent; and
    10. (j)
      Mr Calabro said he ‘walked away from project for asking so many times for approved hydraulic plan so my plumber could price up accordingly only to be told “my plumber is no good I have organised my plumber to complete works and you have to show him all works done by your plumber so he can complete project”.’
  7. [41]
    Ms Sharma denied that the builder or plumber engaged by the applicant to complete the works attended at the site prior to 23 April 2018. In relation to the work on the footpath sign it was put to Mr Calabro in cross-examination that he was informed of the sign contractor attending and that he should have dealt with him.
  8. [42]
    Mr Calabro said that he was not on site on that day and that he was not notified.
  9. [43]
    I accept the evidence of Ms Sharma that the builder and the plumber were not on site prior to Mr Calabro finishing on the project. That is consistent with the evidence of Mr Moussa given at the hearing and with the statement of Mr Gerbanas that he took over the job site from the previous contractor.
  10. [44]
    I accept that the sign contractor worked without induction or supervision by
    Mr Calabro. In those circumstances, it is likely he undertook the work without notification to Mr Calabro. Although problematic, I do not think the actions of the sign contractor are the responsibility of the applicant.
  11. [45]
    In relation to the other matters raised by Mr Calabro, there is no supporting evidence before me. In order for the applicant’s conduct to be repudiatory, it must evince an intention to no longer be bound by the contract. I do not consider the matters raised by Mr Calabro demonstrate that is the case. In relation to problems of delay associated with the grease trap, the need to attend meetings, delays caused by other contractors and the lack of a plan with approvals there was no express time agreed between the parties for completion of the contract. There is no evidence before me of the extent of the delays which might suggest the delays were unreasonable. Damage to tiles and problems with installation of the air conditioner are an incident of the conduct of building work, commonly encountered. As to Mr Calabro’s complaint that his plumber was not agreed by the applicant to price up work associated with an approved hydraulic plan I find that the work did not form part of the contract works, given that a price had not been agreed. Although obviously frustrating for Mr Calabro, there is no evidence of a breach of contract by the applicant in this regard.
  12. [46]
    I find that no conduct on the part of the applicant amounted to a wrongful repudiation of the contract with the respondent.
  13. [47]
    In that context, Mr Calabro’s conduct was clearly repudiatory, in that he expressly stated to Mr Parsons on 23 April 2018 that he no longer intended to be bound by the contract and he left the site.
  14. [48]
    At the hearing, Ms Sharma attempted to establish that Mr Calabro had determined not to complete the contract prior to 23 April 2018 and prior to the incident involving the sign writer.
  15. [49]
    Mr Collomb was called by the applicant. Mr Collomb, business manager of Vege Rama gave evidence that he telephoned Mr Calabro on 20 April 2018 to offer help and support after having been told by Ms Sharma and another senior employee Pamela Sameme, the project manager, that Mr Calabro was not continuing on the job.
  16. [50]
    Mr Collomb gave evidence that during the telephone conversation Mr Calabro explained to him that he had a lot of financial difficulties, that he was on the verge of bankruptcy and he had no capacity to complete the work.
  17. [51]
    That evidence was not challenged by Mr Calabro. I accept that the conversation occurred in the terms sworn to by Mr Collomb. The important fact is that Mr Calabro advised the building manager he was not continuing with the contract and he abandoned the work. I have found that he had no justification to do so in terms of the conduct of the applicant.
  18. [52]
    Ms Sharma gave evidence that she was informed by Mr Parsons, the building manager, that Mr Calabro was not continuing on the project. Thereafter she obtained a recommendation for a builder and plumber from the kitchen joiner and engaged them to do the completion and rectification work.
  19. [53]
    Ms Sharma tendered three emails sent to Mr Calabro. First, on 20 April 2018 he was placed on notice that all work is to be finalised on 23 April 2018 or it will be necessary to engage someone else to complete the job. On 23 April 2018 it was noted that calls were being blocked by Mr Calabro: ‘so you have made your decision’. Benches, shelves and equipment were required to be returned. By later email on 23 April 2018 confirmation was given to Mr Calabro that: ‘we realize [sic] that you are not doing the job…’ Return of the key, benches and equipment was required. Notice was given that the respondent will be liable for the cost of completion of the job.
  20. [54]
    I find that the emails sent on 23 April 2018 are an acceptance of the respondent’s repudiation of the contract and effect a termination of the contract. I find that the applicant was entitled to do so.

Entitlement to Loss or Damage

  1. [55]
    The general rule is that where a party sustains loss by reason of a breach of contract, the party is entitled to be placed in the same position as if the contract had been performed.[2]
  2. [56]
    The applicant is entitled to recover loss and damage sustained by it, which flows from the respondent’s repudiation of the contract.[3]
  3. [57]
    The applicant is entitled to have the contract works performed and its damage is calculated by the loss sustained in completing the work and rectifying defective work. The work undertaken to complete and rectify the work must be reasonable and must be necessary to give the applicant the equivalent of the building works contracted for.[4]

Claim for the costs of completion and rectification of defective work

  1. [58]
    Mr Calabro’s evidence is that the only work remaining to be done as at 23 April 2018, was the connection of a waste pipe, the attachment of a cabinet to a wall and the installation of a bain-marie and a final clean up. Otherwise, his evidence is that all work was done.
  2. [59]
    Mr Calabro estimated the value of the remaining work to be in the order of $1,000.00 for the builder and $700.00-$800.00 for the plumber.
  3. [60]
    Mr Calabro denied that there was any defective work. He asserted that all work performed had been done in accordance with Australian Standards.
  4. [61]
    The applicant relied on a chronology of events (Exhibit 11) which referred to emails commencing on 9 April 2018 and 20 April 2018 with respect to incomplete work and deadlines not met. Those emails were not put in evidence.
  5. [62]
    The only evidence before me as to the work required to be done is that work itemised in the invoices from the contractors engaged by the applicant to complete the project once Mr Calabro left the site.
  6. [63]
    The statement in evidence (Exhibit 16) from the builder Mr Gerbanas of TAG Projects is to the effect that Mr Gerbanas undertook the following defective and/or incomplete work in the months of April/May 2018:
    1. (a)
      take over job site from previous shopfitter;
    2. (b)
      remove front cover wall and replace with new wall as well as cabinetry for hot box to sit on (the cabinet done by VAC Constructions was not done as per Australian building standards);
    3. (c)
      tile the front counter as well as grout and seal;
    4. (d)
      trim the front counter with angles and caps;
    5. (e)
      seal up the shop where it was required;
    6. (f)
      patch the sealing in the kitchen as well as plaster and paint;
    7. (g)
      go thru (sic) and tidy up any areas that weren’t finished;
    8. (h)
      manufacture and install cupboard where pass thru (sic) used to be as well as over the electrical board;
    9. (i)
      install sinks and supply one brand new hand basin;
    10. (j)
      de-fit storage room from previous store.
  7. [64]
    The statement does not disclose which work was defective and which work was incomplete.
  8. [65]
    The invoice from TAG Projects for this work (Exhibit 7) provides a total cost of $5,800.00 inclusive of GST.
  9. [66]
    Four photographs were provided by the applicant as evidence of defective work (Exhibit 3). The photographs do not disclose when they were taken or what they purport to depict. Mr Calabro was unable to say what the photographs purport to depict however, in relation to the photograph of a light hanging from the ceiling and resting on the floor, he said that there was no live wire. He indicated that the light was on the floor because it had to be taken down for the installation of fire sprinklers. He said there was no power on in the building and all safety circuits had been taped up.
    I accept that evidence.
  10. [67]
    Ms Sharma gave evidence that the building manager Mr Steven Parsons informed her that he would not approve the respondents work. There is no direct evidence from
    Mr Parsons.
  11. [68]
    The state of the evidence is unsatisfactory, however Mr Calabro did not require Mr Gerbanas for cross-examination. The respondent did not give any evidence to the effect that the work referred to by Mr Gerbanas was complete or not defective, other than generalized oral evidence given in response to questions by me at the hearing
  12. [69]
    I reject the evidence of Mr Calabro that the work was almost complete and that it was not defective as at 23 April 2018. Mr Calabro was frequently argumentative and overbearing when giving evidence. He did not directly answer questions put to him in cross examination. For these reasons I consider his evidence to be unreliable and prefer the written and unchallenged evidence of Mr Gerbanas on this issue.
  13. [70]
    I accept Mr Gerbanas’ evidence and find that the work set out in Mr Gerbanas’ statement dated 11 December 2018 and the invoice dated 18 May 2018 was performed, and that it was necessary to be performed in order to satisfactorily complete the work the subject of the contract with the respondent. The work described all falls within the description of work given in Tax Invoice 466 dated 4 December 2017.
  14. [71]
    In relation to plumbing work Mr Moussa confirmed by telephone evidence that he completed incomplete and defective work at the site.
  15. [72]
    Three Bass Plumbing invoices are in evidence before me (Exhibits 4, 5 and 6).
  16. [73]
    Exhibit 6, the invoice dated 27 May 2018 refers to the work addressed in Mr Moussa’s statement in an amount of $6,500.00 plus GST, being supply of plumbing materials necessary for completing the job and installation of all plumbing for sinks, basin, dishwasher, hot water system and five gas equipment. A further sum of $1,300.00 plus GST is itemised to supply and install a waste-water lifting unit pump.
  17. [74]
    The other invoices refer to other work being:
    1. (a)
      Exhibit 5 invoice dated 7 June 2018 - Cost for pump, fitting and installation and new sink mixer totalling $414.70. The invoice refers to the work as ‘extra’.
    2. (b)
      Exhibit 4 invoice dated 20 June 2018 - disconnect oven and reconnect oven to new shop, supply materials and install new drain and water points - $400.00, discounted by $164.00, amounting to a balance of $264.00 inclusive of GST.
  18. [75]
    Mr Calabro did not challenge Mr Moussa in cross-examination in relation to the extent of work performed by him or the value of that work.
  19. [76]
    Nevertheless, in later evidence Mr Calabro said that he did not know where the sum of $8,500.00 had come from in relation to the plumber’s work. He said that the value of his plumber’s work was $2,800.00 plus another $700.00 to $800.00 for extra pipe work.
  20. [77]
    Mr Calabro said in evidence that he did not know about a pump or the extent of gas work undertaken by the plumber.
  21. [78]
    Ms Sharma put to Mr Calabro in evidence that there was a pump in the shop. Mr Calabro said that he was not aware of that. Ms Sharma put to him that it was necessary to obtain a more expensive pump and that he had underestimated the value of the work he quoted on.
  22. [79]
    Mr Calabro denied that was the case.
  23. [80]
    It is not clear that replacement of a pump formed part of the contract works. It is not referred to in the invoice setting out the contract works.
  24. [81]
    Based on Mr Calabro’s evidence that he was unaware of the pump or the need for a pump, I find that supply and installation of a water pump did not form part of the contract between the applicant and the respondent.
  25. [82]
    On this basis, I intend to exclude the claim with respect to the water pump from consideration of the applicant’s claim.
  26. [83]
    The water pump is referred to in the invoice dated 27 May 2018 for supply and installation in an amount of $1,300.00. It is also referred to in the invoice of 7 June 2018 in an amount of $300.00.
  27. [84]
    Likewise, in relation to the cost of the new sink mixer, that is not an item which is apparent in the invoice setting out the contract works. I exclude the value of the sink mixer in the sum of $77.00.
  28. [85]
    In relation to the work set out in the invoice dated 20 June 2016, I am prepared to accept that the work was necessary as part of the fit out of the kitchen in the sum of $264.00 inclusive of GST.
  29. [86]
    In conclusion, I accept it was necessary for plumbing work to be undertaken in an amount of $6,500.00 plus GST, amounting to $7,150.00. I accept that the further sum of $264 inclusive of GST was necessary to complete the contract works. I find that the other items of work set out in the Bass Plumbing Qld invoices did not form part of the contract works.
  30. [87]
    The applicant asserts that whilst installing a marble benchtop Mr Calabro cracked cabinet glass. Ms Sharma gave evidence that in order to repair the glass, the marble top must be removed.
  31. [88]
    In evidence (Exhibit 8) is a quotation from O’Brien Glass to replace one custom insulated glass unit in the sum of $1,646.00 inclusive of GST. The quotation says that it is subject to a final site assessment to determine if it is possible to replace the panel without the need for the countertop or other shop fittings to be removed.
  32. [89]
    It is said in the quotation that an electrician will be required to disconnect the power for the heater bars and that the cost of this trade is to be borne by the customer above the total of the quotation.
  33. [90]
    Other than the evidence of Ms Sharma that the counter-top will have to be moved, there is no quotation from a tradesman in relation to the cost of that work and no evidence from a tradesman as to the need for that work.
  34. [91]
    There is insufficient evidence for me to find that the work is necessary or to attribute a cost to that work. I do however accept that the cost of replacing the glass is in accordance with the O’Brien Glass quotation. I accept Ms Sharma’s evidence that the glass must be replaced to meet Brisbane City Council health requirements and that Mr Calabro was responsible for the crack in the glass. On this basis I find that replacement of the glass must be performed for the amount set out in the O’Brien Glass quote.
  35. [92]
    I have found that the applicant was compelled to complete and rectify works in an amount of $14,860.00 as set out:
    1. (a)
      in TAG Project’s invoice - $5,800.00;
    2. (b)
      in part of the Bass Plumbing invoice dated 27 May 2018 - $7,150.00;
    3. (c)
      in Bass Plumbing invoice dated 20 June 2018 - $264.00; and
    4. (d)
      I have found that replacement of cabinet glass will have to be undertaken as per the O’Brien Glass quote dated 13 December 2018 - $1,646.00.
  36. [93]
    I find that the applicant has suffered loss and damage in the sum of $14,860.00 inclusive of GST as a result of the respondent repudiating the contract by refusing to complete the contract works. The costs of the contractors are reasonable and necessary for the applicant to complete the contract works.

Value of shelves and bench

  1. [94]
    The applicant claims that Mr Calabro took but did not return four shelves valued at $600.00 each and one stainless steel bench valued at $1,800.00.
  2. [95]
    Mr Calabro gave evidence that these materials were not required in the shop and were disposed of in accordance with usual practice.
  3. [96]
    The tax invoice dated 4 December 2017 setting out the work the subject of the contract does not refer to return of that equipment.
  4. [97]
    I have no evidence as to the value of that shelving or bench other than as asserted by Ms Sharma.
  5. [98]
    On the basis that there is insufficient evidence that the shelving and benchtop were intended to be returned to the shop, rather than merely removed as referred to in the contract document and on the basis that there is no independent evidence of the value of those items, there is no basis for the value of those items to be considered as part of the claim.

Restitution of contract sum

  1. [99]
    In relation to the claim for restitution of the sum of $30,800.00 paid to the respondent, Ms Sharma confirmed in evidence that the sum was paid by Australian Unity not by the applicant.
  2. [100]
    Ms Sharma made no submissions in relation to restitution as equitable relief.
  3. [101]
    Instead, Ms Sharma’s evidence was that as a consequence of Mr Calabro leaving the project they fell behind schedule and missed the projected start date for the business by one month which involved rental, lost wages and lost income. Ms Sharma was unable to particularise any of those items of loss, but indicated she claimed the sum of $30,800.00 in order to cover those costs.
  4. [102]
    I am not satisfied on the evidence as to the extent of loss suffered or that the delay giving rise to the alleged loss is attributable to the conduct of the respondent. Accordingly, I reject the claim as articulated by Ms Sharma for restitution in the sum of $30,800.00.

Orders

  1. [103]
    I award damages to the applicant in the sum of $14,860.00 for rectification and completion work found by me to be necessary to complete the contract works. I order that the respondent pay the applicant the sum of $14,860.00 within 30 days of the date of this Order.
  2. [104]
    The applicant has claimed interest on damages awarded. The applicant has not specified the basis of its claim for interest. The Tribunal may in its discretion order interest at the rate of 10% per annum on unpaid damages, pursuant to s 77(3)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) and s 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld). The sum of 10% is payable in the absence of an agreed rate. I award interest on the sum of $14,860.00 at the rate of 10% per annum from the day after the day that the damages are payable until and including the day the amount is paid. Of course, if the damages are paid within the time specified in this Order interest is not payable.

Footnotes

[1]Sections 75, 77 and Schedule 2 definition: – ‘building dispute’, ‘minor commercial building dispute’, ‘commercial building dispute’ and ‘reviewable commercial work’ Queensland Building and Construction Commission Act 1991 (Qld).

[2]Robinson v Harman (1848) 154 ER 363, 365; Clark v Macourt (2013) 253 CLR 1.

[3]Shevill v Builders Licensing Board (1982) 149 CLR 620.

[4]Bellgrove v Eldridge (1954) 90 CLR 613.

Close

Editorial Notes

  • Published Case Name:

    Riddhi Siddhi Pty Ltd v VAC Constructions Pty Ltd

  • Shortened Case Name:

    Riddhi Siddhi Pty Ltd v VAC Constructions Pty Ltd

  • MNC:

    [2019] QCAT 201

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    29 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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