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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Martin v Top Notch Trading Pty Ltd t/as Stroud Homes Toowoomba  QCAT 330
Top Notch Trading PTY ltd T/as stroud homes toowoomba
24 August 2020
31 January 2020
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS - whether claim can be made for unwritten variations – where the contract and the QBCC Act require any variations to be agreed in writing - whether applicant can recover payments already made – where no evidence that the payments were made by mistake
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where the respondent counterclaims for variations and delay costs – where the evidence is insufficient to discharge its onus of proof
Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 40
Lawrence v Stroud Build Pty Ltd t/as Stroud Homes  QCAT 266
Mt Cotton Constructions Pty Ltd v Greer  QCAT 11
APPEARANCES & REPRESENTATION:
G Neville, Director of Top Notch Trading Pty Ltd
REASONS FOR DECISION
- On 8 February 2018, Matthew Martin and Chole Martin, contracted with Top Notch Trading Pty Ltd trading as Stroud Homes Toowoomba (‘Top Notch’) for the construction of a home at Barlow Street, Toowoomba (‘the contract’).
- Construction commenced on or about 7 June 2018 and the home was handed over to the Martins in early February 2019 after payment of Top Notch’s practical completion stage claim.
- On 4 February 2019, Mr Martin filed in the Tribunal an application for domestic building disputes claiming relief from payment of an amount owed in the sum of $16,312.25 relating to variations to the contract for additional earth works and damages of $2,350.00 being a recalculation of delay costs under the contract and costs of $338.20.
- In his witness statement, Mr Martin amended his claim for delays to $6,500.00.
- Top Notch responded denying any liability and counterclaimed $16,918.65 for variations and delay costs.
- The matter was heard in Toowoomba on 31 January 2020. Mr Martin appeared in person and was the applicant’s only witness. Top Notch was represented by its Director, Greg Neville. Mr Neville was the only witness for Top Notch.
- In respect of the counterclaim, at least, I am of the view that the evidence is insufficient to discharge Top Notch’s onus to prove its claim.
- Little weight can be attached to Mr Neville’s evidence. It is Mr Martin’s uncontested evidence that his dealings throughout the build were with other employees of Top Notch, none of whom has given evidence here. The counterclaim is insufficiently explained in his evidence or in his submissions.
- The variation component of Mr Martin’s claim relates to a variation claim by Top Notch for the sum of $16,312.25, for ‘provisional sum overrun for rock allowance to contract as per online discussions between supervisor and clients’ dated 3 December 2018 (‘rock variation’).
- I accept Mr Martin’s evidence that the additional works were carried out throughout June and July 2018 and that while aware that rock had been encountered, he was not given any indication of costs of the additional works until receipt of the rock variation shortly before receiving the claim for practical completion stage (which included the variation amount) on 13 December 2018.
- Mr Martin says as a consequence Top Notch cannot claim the amount it now claims. Neither the contract nor the QBCC Act precludes recovery in those circumstances.
- Mr Martin’s timeline included in his evidence includes the following:
03/12/18 – variation for additional earth work expenses received
14/12/18 – we receive an email stating the home has reached practical completion however,
21/12/18 – we receive an email stating practical completion has been extended from 21/12/18 through until 14/01/19 due to Christmas break
23/01/19 – Pat, new supervisor, confirms we are unable to move into the home until payment for additional variations is received.
- There is no further evidence from any witness as to what occurred after this, although it is common ground that Mr Martin took possession of the property on 4 February 2019. In the absence of a claim for balance owing by Top Notch it can safely be assumed that Mr Martin made payment (although there is no evidence of the method or amount of the payment).
- Prior to hand over on 30 January 2019, Top Notch issued a document titled ‘authority for variation to contract’ for ‘credit for delay damages as per contract’ allowing Mr Martin the sum of $500.45.
- There is no evidence as to whether this amount was paid by Mr Martin or deducted from the practical completion claim. I am satisfied however that the allowance was made. Mr Martin’s claim is to ‘correct amount of delay damages’ and he acknowledges in an attachment to the application ‘they have currently issued a delay for 10 days only 5 short of the actual delay’.
- In Mt Cotton Constructions Pty Ltd v Greer, Member Howe in considering a claim for variations previously paid said:
Here there is no claim made either in the pleadings or at hearing that payment for the variations was made other than voluntarily. There was no evidence that payment for variations was made on a mistaken view that there was a legal obligation to pay the amounts claimed. Rather payment seems to have been pursuant to a course of compromise and conciliation adopted with the builder, based in part to avoid conflict and in part to achieve earliest possible completion of the job.
- Understandably Mr Martin complains that some six months after the variations are completed additional costs exceeding $16,000.00 are raised for the first time shortly before practical completion and hand over. Mr Martin stated:
This meant we had to borrow money from friends in order to move into the house, with our rental lease expiring and my wife being 37 weeks pregnant at the time.
- This is exacerbated to an extent by the meritless counterclaim filed by Top Notch and its attitude throughout these proceedings which was unapologetic bordering on belligerent.
- There is however no evidence that the final payment was made by mistake or that the parties reserved their respective rights. Mr Martin’s decision to pay the amount claimed while made under considerable pressure was a practical and sensible response to the situation he was placed in. He cannot now ask for that to be reconsidered.
- While unnecessary as a result of my earlier findings the same applies to Top Notch’s counterclaim. Its decision in calculating the final claim was a commercial one.
- As a result, both claim and counterclaim are dismissed.
 Counter-application filed 24 May 2019.
 Authority for variation to contract dated 3 December 2018 attached to the counter-application.
 Statement of Matthew Martin filed 24 July 2019, 1.
 Contract dated 8 February 2018, cl 20.
 QBCC Act, sch 1B, s 40.
 Statement of Matthew Martin filed 24 July 2019, 3.
 Application for domestic building disputes filed 4 February 2019, 7, attachment 1.
  QCAT 11, ; See also Lawrence v Stroud Build Pty Ltd t/as Stroud Homes  QCAT 266.
 Statement of Matthew Martin filed 24 July 2019, 1.
- Published Case Name:
Matthew Martin v Top Notch Trading Pty Ltd t/as Stroud Homes Toowoomba
- Shortened Case Name:
Martin v Top Notch Trading Pty Ltd
 QCAT 330
24 Aug 2020