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  • Unreported Judgment

Nicol v Mobile Project Building Pty Ltd

 

[2020] QCAT 125

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nicol v Mobile Project Building Pty Ltd [2020] QCAT 125

PARTIES:

john nicol

keith stewart

(applicants)

 

v

 

mobile project building pty ltd

(respondent)

APPLICATION NO/S:

BDL317-18

MATTER TYPE:

Building matters

DELIVERED ON:

28 April 2020

HEARING DATE:

12 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. Mobile Project Building Pty Ltd must pay John Nicol the sum of $19,380.74 by 4:00pm on 26 May 2020.
  2. The application by Keith Stewart is dismissed.
  3. There is no order as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - VARIATION TO SUB-CONTRACT – where sub-contract to build double garage - where roof changed at request of homeowners during course of construction – where new roof more costly – whether sub-contractor entitled to recover extra cost from contractor – whether sub-contract varied

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50

Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11 110

APPEARANCES

& REPRESENTATION:

 

Applicants:

Self-represented

Respondent:

A Carroll, Carroll Legal & Compliance

REASONS FOR DECISION

  1. [1]
    This is an application brought by a sub-contractor, Mr Nicol, and the roofing sub-contractor engaged by Mr Nicol, Mr Stewart, against the contractor, Mobile Project Building Pty Ltd (‘MPB’). They claim money for work they did and expenses they incurred in building a double garage at a residential home at Herston. Mutaz Diab is the principal and sole director of MPB. 
  2. [2]
    The dispute between Mr Nicol and MPB has arisen because, during the garage construction work, Mr Nicol at the request of Margaret Emerson, one of the homeowners, was asked if he could install an insulated roof as opposed to a colourbond roof. The insulated roof cost more than a colourbond roof (referred to by the parties as a standard roof).
  3. [3]
    The homeowners refused to pay for the extra costs associated with the change of roof. They did not agree to a variation of their contract with MPB and paid the contract price they say was owed to MPB under their contract with MPB.
  4. [4]
    There is now a dispute between Mr Nicol and MPB as to whether Mr Nicol is entitled to be paid for the extra costs he incurred in arranging for the installation of the new, more costly, roof. MPB refuses to pay for the extra costs on the basis that MPB and Mr Nicol had a fixed contract for the construction of a double garage and that there was no variation to that contract. Mr Diab says he did not authorise the change to the roof and that, in any event, he was told by Mr Nicol that the new roof would not cost any extra.
  5. [5]
    Mr Nicol said that Mr Diab approved the change of roof and stood by while the materials were ordered and delivered and the roof constructed. Mr Nicol denies having a conversation about the cost of the insulated roof. He says that he assumed any necessary variations of the contract between MPB and the Emersons would have been attended to by Mr Diab.
  6. [6]
    There was no written variation of the contract between MPB and the Emersons and an approach by another sub-contractor at the request of and on behalf of Mr Diab, to the Emersons, in effect asking them on moral grounds to pay for the extra costs associated with the new roof, was rejected.
  7. [7]
    Mr Nicol claims $28,402.74 is owed to him based on the work he did in constructing the new roof. Mr Diab, on behalf of MPB, argues that there was a fixed contract of $50,000 between them and that he has paid $41,000 to Mr Nicol, having set off $9,022 for work he needed to engage other sub-contractors to do that was included in their contract.
  8. [8]
    The resolution of this issue depends first upon whether there was a fixed price contract between them. If there was a ‘charge up’ or ‘cost plus’ contract, then Mr Nicol is entitled to the amount he has claimed. If there was a fixed price contract, then whether Mr Nicol is entitled to the amount claimed depends upon whether there was a variation to the contract between MPB and Mr Nicol.

The facts

  1. [9]
    Mr Nicol was first approached to do the garage job by MPB but, after meeting Margaret Emerson on site in September 2017 and discussing the job with her, declined on the basis he was too busy and it was not the sort of work he wanted to do. Mr Nicol then introduced Mrs Emerson to the builder Joe Caruso.
  2. [10]
    Mr Caruso gave a quote to the Emersons on 20 September 2017 to construct a double garage at 44 Aberleigh Rd, Herston ‘as per architectural design and engineer specifications’. Relevantly the quote provides ‘cut top course of blocks to allow skillion roof included’ and ‘supply and fit color bond custom orb roofing, fascias and gutter (cottage green?) owner to confirm colour’. There were question marks against the price. Mr Caruso was not engaged to do the job.
  3. [11]
    Mr Nicol was approached again, and on 15 November 2017 he sent an email titled ‘quote for 44 Aberleigh Rd, Herston,’ to MPB. It provided as follows:

foundations

bobcat, digger extended foundations, base cource [sic], sand drainage, labour $7 000

floor

chemset starters, steel, mesh, bolts for structural steel concrete, labour, pump, boxing $13 000

blocks and labour $6 000

block steel, block fill, pump $6 000

roofing side walls and steel $22 000

doors $6 000

supervise $5 000.

The total was $65 000 including GST.

  1. [12]
    Mr Nicol said that his ‘estimate’ of $65,000 for the job was based on a corrugated iron roof. Mr Nicol said Mr Diab had asked him if he could do the job for $50,000 but that he had told Mr Diab he could not do it for that price. It was because they could not agree on a price, that Mr Nicol says he agreed to do the job on a ‘charge up’ basis.
  2. [13]
    Mr Nicol says that during ‘stage one’ of the above work, that is site works, garage floor and block work, he asked a roofer for a quote for the required roof. On 1 December 2017 Qld Roofing and Guttering Pty Ltd provided a quote in respect of 44 Abersleigh Rd, Herston for $10,670 for the following work and materials:

Install new roof and gutter system to garage roof. Roof to be .42 c/b trim deck, 65mm insulation bonded to light duty foil, c/b 125mm square line eve gutter.

  1. [14]
    On 21 November 2017 George and Margaret Emerson entered into a contract with MPB for the construction of a double garage. The work is described in the contract as follows:

build two garage as Plan number 04589-05 supply all material. concrete wall roof garage door.

  1. [15]
    Under ‘contract documents’ the contract provides:

Any subsequent amendments or ‘variations’ to this contract must be recorded in a Variation Document (such as QBCC Form 5) which then forms part of the Contract.

  1. [16]
    The column headed ‘particulars’ next to the contract document column provided that all plans (dated and attached), specifications (dated and attached) and foundations data are supplied by the owner. The contractor must, under item 16, give the owner a signed copy of the contract, including plans and specifications, within five business days after the contractor signs the contract.
  1. [17]
    The start date was 27 November 2017. Under ‘construction days’, 30 days is written. The completion date is 15 January 2018 but there is a notation next to that that says ‘Feb 2018’. There are handwritten notations on the page which indicate a deposit of $25,000 was paid on 22 November 2017, some further progress payments were made by transfer or cash and the final amount was paid on 28 February 2018.
  2. [18]
    Plan number 04589-05 provides under ‘Timber Notes’:

Bearers, joists and lintels are designed for long term deflection of L400 or a maximum of 9mm.

Wall framing has been designed for the truss layout shown. Alternative truss layouts will require redesign of wall framing at contractors [sic] expense.[1]

  1. [19]
    Mr Diab says that MPB entered into a sub-contract with Mr Nicol on 24 November 2017 (three days after Mr Diab entered into the contract on behalf of MPB with the Emersons) to ‘build two garage as plane [sic] number 04589-05 supply all material concrete wall roof garage door’. The start date was 27 November 2017 and completion was 10 January 2018. The subcontract price was $50,000 including GST. The payment period provides: ‘as schedule’ but there is no schedule attached to the sub-contract. There is no witness to the signatures of Mr Diab or Mr Nicol.
  2. [20]
    Mr Nicol denies that he entered into this contract and says he has absolutely no recollection of signing it. He says that he would not have signed it because he always told Mr Diab that $50,000 was too low for the job. He also says that he had always done any work for Mr Diab on a ‘cost plus’ basis. Since May 2017 Mr Nicol says he has done six jobs for Mr Diab, all on a ‘cost plus’ basis. Mr Nicol says that the first time the contract was mentioned to him was on 20 July 2018, approximately six months after the job was completed. Mr Nicol says he did not receive a copy of the sub-contract until 10 October 2018.
  3. [21]
    An invoice dated 30 November 2017 from Mr Nicol to MPB provides that $2,200 is owed for ‘colour bond to back fence, blueboard to garage, door to garage, cornice to soffits’. A handwritten notation on the invoice states it was ‘paid on 30 November 2017’. 
  4. [22]
    On 4 December 2017 Mrs Emerson approached Mr Nicol and asked him if she could change the roof from a colourbond roof to an insulated, solar panel roof. Mr Nicol says he asked Mr Diab that same day if that was ok and that Mr Diab told him to go ahead. The Emersons also requested changes to the height and width of the doors which Mr Diab also approved.
  5. [23]
    On 7 December 2017 Mr Diab ordered the two doors for the garage from Steel Line. Mr Nicol said that the ordering of the doors ‘had nothing to do with me’. Mr Nicol also said that Mr Diab did not say at the time that the cost of the doors was coming off the $50,000. Mr Nicol suggests this was because there was no fixed price contract.
  6. [24]
    On 4 January 2018 Mr Nicol says he was paid for ‘stage 1’.
  7. [25]
    Around this time, Mr Stewart of Qld Roofing and Guttering Pty Ltd said he was asked to change the roof. Mr Stewart says that he told Mr Nicol and Mr Diab that it would be more expensive and that the timelines would change because it was Christmas time. Mr Stewart says he was asked to measure up for the new roof but was not asked for a quote.
  8. [26]
    Mr Nicol gave evidence that the new roof ended up costing approximately $18,000 more than the colourbond roof.
  9. [27]
    Mr Diab asked another subcontractor, Neil Lesslie, to ask Mrs Emerson if she would agree to pay extra for the roof. Mr Lesslie gave evidence that Mr Diab had told him there had been a price blow out on the job and that he was angry with John (Mr Nicol).
  10. [28]
    A second contract between the Emersons and MPB was entered into on 8 February 2018. This contract was for $50,000. The work was to commence on 14 February 2018 and was to be completed by 14 March 2018. Seven items are listed in an attachment to the contract (which is not signed or referred to in the contract) which appear to refer to work to be done after the garage has been constructed, principally the construction of retaining walls.
  11. [29]
    On 9 February 2018 an invoice (number 0340) was issued from Qld Roofing and Guttering Pty Ltd to Mr Nicol for $23,320 for the following work:

Install new 75mm superior trim deck roof panel system with 900 girth 6 bend barge cappings and formed eve gutter. Install internal ceiling flashing to block walls.

  1. [30]
    On 9 February 2018 a second invoice (number 0341) was issued for $21,120 to Mr Nicol and also separately to MPB.
  2. [31]
    Mr Nicol says he finished work at the Emersons’ on 21 February 2018 but that the job was not finished because only stages 1 and 2 were complete. Stage 3 related to work required to be done under the second contract for the retaining walls that MPB had with the Emersons. Stage 3 was not covered by the sub-contract between MPB and Mr Nicol.
  3. [32]
    On 24 February 2018 Mr Nicol issued an invoice to MPB for $3,244.78 for extra work associated with stage 3 of the work.
  4. [33]
    An email from Mr Diab to Mr Nicol on 17 March 2018 refers to phone calls Mr Diab had received from Mr Stewart of Roofing and Guttering Pty Ltd regarding payment. Mr Diab replied to Mr Stewart to effect that he had transferred $10,000 on 2 January 2018 to Mr Nicol’s account as payment for the roof and, on 19 February 2018 after the roof was finished, had transferred another $10,000 as final payment for the roof.
  5. [34]
    Mr Diab then sent an undated letter to Mr Nicol which referred to Mr Nicol’s demand for $31,647.75. In that letter Mr Diab says:

Our agreement on this all works on this project for the previous planes [sic] is 50 000$ to finish it all from A to Z. You have received the whole amount of the contract which is the 50 000$ (40 000$ transfer and 10 000$ in cash) and you didn’t finish the job.

Also according to [sic] the roof our agreement was the cost of it just 9000$ STD roof and you came to advice [sic] that to install the insulation roof which it will be the same coast [sic] as the STD roof which mean it should be the the [sic] same coast [sic] as the contract with no variation. Also you have mentioned that the owner she is who make the order for this roof (to make an order it is your responsibility not the owner and the main thing is to inform me about that if it is true to justify any variation) which is mean that you have deal with the owner with out refer to me as I am the main contractor and you are the subcontractor. You have deal with this meter [sic] under your responsibility.

  1. [35]
    Mr Nicol says he is owed $28,402.74 for stage 2: $7,000 for framing front garage; cladding front garage, trimming out garage doors; erecting steel roof frame; laying roof (solar plan roof with flashings). The contractor for the roof is owed $21,120 (just for the roof). Mr Nicol said in his application that he was also owed $3,244.78 for stage 3. However, during the Hearing, he withdrew his claim for that amount.
  2. [36]
    On 10 October 2018 Mr Nicol says he first received the sub-contract, some eight months after the job was finished. Mr Nicol has no recollection of the sub-contract. Mr Nicol says he was paid in stages: 1, 2 and 3. Stage 1 was concrete and blockwork for the base. Stage 2 was framing and roof. Stage 3 covered work under a new contract with Mrs Emerson which involved digging out, removing soil for foundations of driveway and retaining walls.
  3. [37]
    Mr Nicol says that he stopped proceedings at one stage against MPB because Mr Diab told him he had not been paid by the Emersons. Mr Nicol says that this was a lie. Mr Nicol said he re-commenced proceedings when he learned that MPB had been paid in full, that is had received $82,000 for the construction of the garage.
  4. [38]
    Mr Nicol now claims $28,402.74 (being $31,647.52 less $3,244.78). Mr Nicol claims the work for the garage was commenced in November 2017 and completed in January 2018. The total payment made was $38,000 and the amount owing is $28,402.74. Mr Diab says he has paid Mr Nicol $41,000 and that he owes him nothing because MPB is entitled to set off $9,022 against the contract price of $50,000.

Applicants’ submissions

  1. [39]
    Mr Nicol says that Mr Diab on behalf of MPB asked him to build the double garage for the Emersons. Mr Nicol says he refused to sign a written contract for $50,000 because the price was too low. He says he agreed to do the contract on a ‘charge up’ basis which was the basis upon which he had done all other work for Mr Diab since May 2017. Mr Nicol says he has no recollection of signing the sub-contract and that the existence of the contract was first mentioned to him on 20 July 2018, more than a year after the job was finished and that he was not provided with a copy until 10 October 2018. Mr Nicol says:

I have no recollection of this contract, I have no correspondence or invoices, payments for this contract, I have no copy I denigh [sic] it was ever used for this work…either way I was a subcontractor to Micheal [sic].

  1. [40]
    Mr Nicol’s position is supported by the evidence of Neil Lesslie, another subcontractor engaged to do work for the Emersons, who stated in a letter to Mr Nicol:

Sorry to hear about the disagreement over the Emerson job.

I can only tell the truth to the best of my recollection about the arrangements for my working on the garage and also the retaining walls at 44 Aberleigh Rd Herston with no bias toward either yourself or Michael.

During this discussion you said that there may be more blocklaying on retaining walls and underneath the existing old house. You also told me that the garage is the first stage and that Michael was wanting to build the garage for about $50 000 because a fellow named joe had given Michael rough guide on the price. You said that Michael was wanting to do the job cheaply in order to get more work raising the old house and making it safe but in your opinion fifty thousand for the garage was too cheap. You said that Michael wanted you to sign a contract but you told him no way it could be done for that price because the price was too cheap.

….

After I had completed the Blockwork on the garage the roofing materials arrived. Michael was not happy with them. After the roof was put on Michael asked me to have a little chat to Margaret about the extra expense. I mentioned to Margaret that she had a really good insulated roof and that it cost a significant amount more than a standard one. She said its [sic] nothing to do with me, it’s in the contract. I regret now that I even got involved but at the time I felt for Michael because he said he wouldn’t make any money on the job and he seemed very upset.[2]

  1. [41]
    Mr Nicol refers to the contract between the Emersons and MPB and says it is very vague, the plan being only one page and that the type of roof is not mentioned, no engineering, no specifications. He says the plan number 04589-05 does not mention a roof.
  2. [42]
    He finished what he refers to as ‘stage 1’ and sent invoices to MPB and was duly paid.
  1. [43]
    During stage 2 Mrs Emerson approached him and asked if she could have an insulated roof (solar panel not colorbond) and higher doors. Mr Nicol said he asked Mr Diab that same day and that Mr Diab approved the changes and asked him to deal with it because he was in hospital at the time. Mr Nicol said he assumed Mr Diab would deal with any associated variation and costings documentation but that, as it turned out, Mr Diab did nothing. Mr Nicol says that Mr Diab asked him to talk to Mrs Emerson to get the size of the panels, colour and profile which he did in December 2017.
  1. [44]
    Mr Nicol says that he started to build a structure for a solar panel roof. He said that ‘any builder would know that it wouldn’t take a colourbond roof’. Mr Nicol says he started on 8 January 2018 and did the timber framing. On 23 January 2018 the steel was delivered. By then, he says, it was obvious for all to see that it was going to be a solar panel roof. The roof was ready for measuring on 24 January 2018. Mr Nicol says that Mr Diab was not concerned at any stage of the process. On 24 January 2018 Mr Stewart ordered the roof materials which were to be delivered in three weeks, on 10 February 2018.
  2. [45]
    Mr Nicol says that the new roof required a different framework and supporting structure and that Mr Diab and the Emersons watched the different structure for the new roof being constructed and the new roof being installed. Mr Nicol said it would have been obvious to any builder that the structure that was being built was for an insulated roof and not for a colourbond roof.
  3. [46]
    Mr Nicol also said that any experienced builder would know that an insulated roof was more expensive than a colourbond roof. Mr Nicol says that he was never asked about cost and did not represent to Mr Diab that the cost would be the same. Mr Nicol says that he did not know at the time how much extra it would cost so he would not have said it cost the same.
  4. [47]
    On 11 December 2018 Mr Nicol filed an application for a domestic building dispute in the Tribunal claiming $31,647.45. Mr Nicol stated the respondents were George and Margaret Emerson and MPB. Mr Nicol claims the work was commenced in November 2017 and completed in January 2018. The total payment made was $38,000 and the amount owing was $31,647.52. The application states:

Work done under charge up by John Nicol and Keith Stewart.

  1. [48]
    Mr Nicol claims that he was a sub-contractor to MPB, that he was asked by MPB and the homeowners to do certain work, which he did but has not been paid for. Since then Mr Nicol has revised his claim so that he is now only seeking payment for the work associated with the garage which totals $28 402.74.

Respondent’s submissions

  1. [49]
    MPB says they engaged Mr Nicol as a subcontractor to construct two garages for $50,000. They say the work was not completed in accordance with the contract because the doors were not installed nor was electrical to the doors completed or rubbish removed. MPB says they were required to have someone else complete the job for $9,022 which was then set off the amount payable to Mr Nicol.
  2. [50]
    MPB claims it has paid Mr Nicol $41,000 for the garage sub-contract.
  3. [51]
    MPB maintains that there were never any variations to that contract. They argue that Mr Nicol took instructions given by the homeowners and varied the work based on their instructions without asking MPB for permission. MPB states in an email to Mr Nicol that they had agreed the cost of the roof would be $9,000 for a standard roof and that Mr Nicol had advised that the cost of installing the new insulated roof would be the same cost as the standard roof ‘which means it should be the same cost as per the contract with no variation’.
  4. [52]
    MPB claims it owes Mr Nicol nothing under the garage sub-contract.

Consideration

  1. [53]
    I find Mr Nicol to be a truthful witness. I believe him when he says he has ‘no recollection’ of signing a fixed price contract for $50,000 to construct the garage with MPB. I understand also why Mr Nicol is suspicious, given that he told Mr Diab he could not do the job for that price and that they had always worked on a ‘charge up’ basis before. It is also unusual that MPB did not raise the existence of the sub-contract during discussions they had with Mr Nicol about payment, only raising it for the first time more than six months after the job had been completed. I also note that Mr Lesslie, another sub-contractor employed by MPB on the site, was asked by Mr Diab to have a chat to Mrs Emerson about paying more for the job because he was not going to make any money on the job. If Mr Diab had a fixed contract with Mr Nicol which had not been varied, then Mr Diab had no need to be concerned about the price blow out.
  2. [54]
    Having said all of that, a finding that there was no fixed contract in circumstances where a signed (albeit not witnessed) contract has been produced, depends upon a finding that the contract is a forgery. That is a serious allegation and I am not satisfied, based on the Briginshaw test, that the contract was forged. I find, accordingly, that Mr Nicol and MPB did enter into a fixed price contract for the construction of a double garage for $50,000.
  3. [55]
    I find that the contract was for the installation of a colourbond roof. This is consistent with the quote that had been provided by Mr Nicol for $65,000. The parties both agreed that the job had, at least initially, been approached on the basis that the roof of the garage was to be a colourbond roof.
  4. [56]
    I accept that Mrs Emerson first approached Mr Nicol and discussed with him her wish to change the roof to an insulated, solar panel roof. However I also accept Mr Nicol’s evidence, that he told Mr Diab either that day or soon after that Mrs Emerson wanted a different roof and that Mr Diab approved the change. I note that Mr Diab also approved other changes to the garage requested by the Emersons including to the height and width of the garage doors.
  5. [57]
    I prefer Mr Nicol’s evidence to that of Mr Diab’s concerning whether there was any discussion as to the cost of the new insulated roof. I do not accept that Mr Nicol said to Mr Diab that the cost would be the same, particularly at that stage when he had not obtained any costings from the roofer. In any event, it was MPB’s responsibility to ascertain whether there was extra cost and precisely what that extra cost might be. While Mr Diab may have been in and out of hospital at the time, this does not automatically make it Mr Nicol’s responsibility.
  6. [58]
    I turn now to consider whether MPB and Mr Nicol agreed to vary their contract by substituting an insulated roof for a colourbond roof.
  7. [59]
    It is trite that parties to an existing agreement may vary some of its terms by a subsequent agreement.[3] The varied contract is subject to the ordinary rules governing contract formation.[4] Having said that, it was acknowledged in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd[5]  that conduct engaged in for the purposes of ongoing commercial arrangements is not always readily susceptible to the traditional forms of analysis employed by lawyers for the purposes of determining whether a contract has been formed. Accordingly, in Vroon BV v Foster’s Brewing Group Ltd[6] Ormiston J was prepared to accept:

…that agreement and thus a contract can be extracted from circumstances where no acceptance of an offer can be established or inferred and where the most that can be said is that a manifestation of mutual assent must be implied from the circumstances.

  1. [60]
    Similarly in Integrated Computer Services Pty Ltd McHugh JA held:[7]

…in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties’ subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.

  1. [61]
    It has been held that in determining whether the communications between the parties constitute a contract the court is not confined to a consideration of the terms or manner in which the communications were made but must interpret them ‘by reference to the subject matter and the surrounding circumstances including, inter alia, the nature of, and the relationship between, the parties, and previous communications between them, as well as to standards of reasonable conduct in the known circumstances’.[8]
  2. [62]
    I find that Mr Nicol did ask Mr Diab to approve the change to the roof and that Mr Diab approved that change. In any event, it is indisputable that Mr Diab saw the structure for the roof being built and I find that he knew, as an experienced builder, that the structure was to support an insulated roof as opposed to a colourbond roof. Mr Diab, by not objecting to what he saw and by his conduct in acquiescing to the change, agreed to the change on behalf of MPB and thereby to a variation of the contract MPB had with Mr Nicol. The variation was to change the roof from a colourbond roof to an insulated roof. Further, there was an implied term that a reasonable price would be paid for any extra work associated with the new roof.
  3. [63]
    I find, accordingly, that MPB is liable to Mr Nicol for the reasonable sums incurred by him in completing the garage job, which includes the costs associated with the new roof. Mr Nicol has said that this amount totals $28,402.74. Mr Nicol says that he withdraws his claim for $3,244.78 which is owing for ‘stage 3’ of the work at the Emersons’. This latter claim was for work started under the second contract MPB entered with the Emersons that does not relate to the construction of the double garage.
  4. [64]
    I note that Mr Stewart was named as an applicant in the proceedings but did not seek relief against MPB. It does not appear that Mr Stewart has any claim in respect of the contract between MPB and Mr Nicol. Mr Stewart was engaged by Mr Nicol. Accordingly, I dismiss the claim by Mr Stewart.
  5. [65]
    There is the remaining issue which is how to deal with the amounts Mr Diab says he expended in completing the job. As I have already found that there was a fixed price contract for $50,000 I must take these amounts off the amount owing to Mr Nicol if I find that they were included in the scope of work. While there is some argument that Mr Nicol was prevented from completing the job, there were no submissions that the contract had been repudiated by MPB. On that basis, and doing the best I can, I find that MPB must pay Mr Nicol $28,402.74 less the $9,022 MPB paid other sub-contractors to complete the garage.
  6. [66]
    Accordingly, I order that MPB pay Mr Nicol $19,380.74 by 4:00pm on 26 May 2020. I order that there be no order as to costs.

Footnotes

[1] Plan: General Notes, sheet 2.

[2] Letter from Neil Lesslie to John Nicol dated 27 March 2019.

[3] Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93.

[4] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 286; Tekmat Pty Ltd v Dosto Pty Ltd (1990) 102 FLR 240, 248.

[5] (1988) 5 BPR 11 110, 11 117, approved in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50.

[6] [1994] 2 VR 32, 81.

[7] (1988) 5 BPR 11 110, 11 118.

[8] Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251, 9255.

Close

Editorial Notes

  • Published Case Name:

    John Nicol and Keith Stewart v Mobile Project Building Pty Ltd

  • Shortened Case Name:

    Nicol v Mobile Project Building Pty Ltd

  • MNC:

    [2020] QCAT 125

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    28 Apr 2020

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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