Mewett v Williams[2015] QCAT 50

APPEARANCES:

REASONS FOR DECISION

1. [1]
   The respondent in this matter, a young man named Daniel Williams, entered into a contract for the renovation of a bathroom and laundry. Unfortunately, he believed that the contract was with a Mr Paul Donovan, the husband of one of his mother’s friends. This was not so, and the ensuing renovation project has been anything but straightforward.
2. [2]
   Mr Williams discovered that his contract was not with Mr Donovan, but was actually with a company called Mewett Constructions, for whom Mr Donovan was acting as agent. Mr Williams disputes the existence of a contract, but there is evidence that before the Tribunal that Mr Donovan forwarded a quote via his own email, on Mewett Constructions letterhead.  The quotation was then accepted by Mr Williams.
3. [3]
   Sadly, for all parties concerned in this matter, the issues raised before the Tribunal here aptly demonstrate the reasons that domestic building contracts are regulated in Queensland.
4. [4]
   Mr Adam Mewett, the Director of Mewett Constructions, accepts that he did not comply with the Domestic Building Contracts Act 2000 (Qld) in providing Mr Williams with a written contract, and admits that he required payment of a deposit sum in excess of that permitted by the Act.
5. [5]
   Mr Mewett says that he has learnt a considerable amount about the paperwork end of building, as a result of the difficulties he has faced with this particular matter. Equally, it is entirely understandable that Mr Williams feels that he has been duped, as it was never made clear to him that his contract was not with Mr Donovan, but rather was with Mewett Constructions.

Application by builder seeking payment for work

6. [6]
   The application now before the Tribunal has come about because Mr Mewett says that Mewett Constructions is entitled to be paid for the work it performed at Mr Williams’ home. Mewett Constructions seeks an order in its favour for what it says is an unpaid sum of $14,803.90.
7. [7]
   In defence, Mr Williams submits that there are a number of aspects of the work that are either defective, or incomplete. Mr Williams has not filed a counter-claim in this matter, but has provided the Tribunal with quotations relating to the costs of rectification. Of these, the least expensive is $17,855.51.
8. [8]
   Mr Mewett has raised considerable concern that Mr Williams has not allowed him the opportunity to rectify any defective work, or to complete work that had not been finalised. That complaint has been the subject of two miscellaneous applications made by Mr Mewett in this matter.

The Compulsory Conference agreement

9. [9]
   In part, Mr Mewett’s concern arises out of an agreement made between himself and Mr Williams following a compulsory conference in the Tribunal.  At the compulsory conference, they agreed that Mr Mewett could return to the site and rectify any work considered to be defective by the Queensland Building and Construction Commission (‘QBCC’). It was also that the QBCC would inspect the work and produce a report for purposes of identifying the defective work.
10. [10]
    On 11 September 2014, that report was provided to the parties and the Tribunal by Mr Darren Girling, the inspector for the QBCC. That report outlines a number of defects, the most critical of which is the failure by Mewett Constructions to provide sufficient fall in the floor area of the bathroom to ensure that water existing the shower recess does not pool on the surrounding floor area, or exit the bathroom door.
11. [11]
    Rectification of this defect will require the tiles on the floor and the first few tiles along the bottom of the wall be removed, so that a new waterproof membrane can be applied.  It will then be necessary for the tiler to create the appropriate fall when retiling the area.
12. [12]
    Additionally, Mr Girling’s report indicates that painting is incomplete; that silicone beading and installation is unacceptable; and further that there was a failure to install a safe tray or tempering valve together with the hot water system.
13. [13]
    Although the parties had agreed at the compulsory conference to a process whereby Mr Mewett might complete the rectification work under Mr Girling’s guidance, the Tribunal’s directions provided the parties with the opportunity to proceed to a hearing, in the event that the compulsory conference agreement was not, or could not, be complied with.

Why did the parties’ agreement fall apart?

14. [14]
    Despite the agreement, Mr Williams asserts that he is entitled to terminate the contract with Mewett Constructions for the reason that he discovered only after the compulsory conference that Mr Mewett did not possess all of the qualifications necessary to perform the building work required of him in relation to Mr Williams’ job.
15. [15]
    Specifically, Mr Williams asserts that the waterproofing certificate was signed by Mr Mewett prior to his becoming licenced, and further alleges that Mr Mewett was not a licenced builder at the time he performed the work.
16. [16]
    The QBCC licence history search before the Tribunal demonstrates that, at least at the time of hearing, Mr Mewett did possess a builder’s low-rise licence. However, Mr Williams’ renovation job was in a high-rise building.

Mr Williams was entitled to terminate the contract with Mewett Constructions

17. [17]
    There is, in the Tribunal’s view, a sufficient basis for Mr Williams to have terminated the contract with Mewett Constructions: (1) he discovered that the contract itself was not with Mr Donovan as he thought; (2) the contract was not in a form that complied with the Act; (3) he had been compelled to pay an excessive deposit; and (4) there are significant concerns about the validity of Mr Mewett’s licence at various points in the work.
18. [18]
    Although entitled to terminate the contract, Mr Williams remains obliged to pay for the fair market value of the work performed by Mewett Constructions on his behalf.
19. [19]
    The parties agree that the deposit paid by Mr Williams was $4,200.00. It is impossible to determine a contract value, as there were numerous unsigned variations, and little particularity to the quote that forms the basis of Mewett Constructions contractual claim.
20. [20]
    During the course of the Tribunal hearing, the case manager obtained a copy of the QBCC Certificate of Insurance obtained in relation to this work, which indicates that the notified contract value was $13,000.00.
21. [21]
    Unfortunately, like many builders who appear in this Tribunal, Mr Mewett has a box of receipts for this job. That is of little assistance however, as the Tribunal needs to make a decision based on the evidence available to it at the time of the hearing.

Quantification of the value of work performed by Mewett Constructions

22. [22]
    In an effort to afford Mr Mewett every possible ounce of procedural fairness, the Tribunal contacted the subcontractors who had been engaged by Mewett Constructions in an effort to establish what they had been paid, and therefore quantify the value of the work performed by Mr Mewett.
23. [23]
    Doing the best it can with the limited evidence available, the Tribunal finds that the following costs were reasonably incurred by Mewett Constructions on Mr Williams’ behalf:

    1. Water cylinder - $800
    2. Grout - $30
    3. Bathroom vanity and top - $1,235
    4. Laundry unit - $1,265
    5. Silicone - $60
    6. 5 Loads to tip at $15 each - $75
    7. Painting - $200
24. [24]
    Although there was electrical work performed, there is no invoice from the electrician, nor was the Tribunal able to reach the electrician who performed the work for this job. The Tribunal allows the sum of $800 for the electrical work that was performed, based upon the evidence of Mr Mewett.
25. [25]
    In relation to the plumbing work, Mr Mewett initially asserted that he had paid the plumber, Kerry Chambers the sum of $1,600. The Tribunal was able to reach Mr Chambers, who says that he believes the sum was approximately $800. As such, the Tribunal allows the sum of $800 for the electrical work that was performed
26. [26]
    In relation to labour, most of the labour performed was performed by Mr Paul Donovan. The Tribunal was able to reach Mr Donovan, who recalls that it was perhaps a “couple thousand” he was paid. Mr Mewett’s evidence is that Mr Donovan was paid $1,050 a week for three weeks. This conflicts with Mr Donovan’s evidence, which was to the effect that the job took several months. In the circumstances, the Tribunal is prepared to accept that the cost of labour was $2,000.
27. [27]
    In total, the Tribunal finds that the cost of the work performed by Mewett Constructions is $7,265. However, some of that work is defective. In such circumstances, the Tribunal considers that the fair market value of the work for which Mr Mewett has established entitlement is the cost of the work quantified less the costs of rectification. As this would result in Mr Mewett making a payment to Mr Williams, and there is not a counter-application before the Tribunal, the Tribunal finds that Mewett Constructions has already been paid what it is entitled to be paid for the work performed for Mr Williams.
28. [28]
    Having considered the written and oral submissions of both parties, the Tribunal makes the following findings of fact:

    1. Mr Daniel Williams entered into an unregulated domestic building contract with Mewett Constructions.
    2. Mr Williams was entitled to terminate the contract, for the reasons outlined above.
    3. Mewett Constructions has been paid all contractual payments to which it is entitled pursuant to the contract.

Orders

1. The application is dismissed.