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Brack v Farrow[2016] QCAT 198

CITATION:

Brack v Farrow [2016] QCAT 198

PARTIES:

Ronald John Brack

(Applicant/Appellant)

 

v

 

Kenneth Gary Farrow

(Respondent)

APPLICATION NUMBER:

MCDO86-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

2 June 2016

HEARD AT:

Maroochydore

DECISION OF:

Member Francis

DELIVERED ON:

2 June 2016

DELIVERED AT:

Maroochydore

ORDERS MADE:

  1. Mrs Colleen Joy Farrow is joined as a party;
  2. Mr William Nicholas Bowman is joined as a party;
  3. Mr William Nicholas Bowman is to pay to the Applicant the sum of $4,642.15 within 21 days of the date of this order.

CATCHWORDS:

Other minor civil dispute matters – subcontractor – contract - consumer law

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ronald John Brack

RESPONDENT:

Kenneth Gary Farrow

Colleen Joy Farrow

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

  1. [1]
    William Nicholas Bowman has sought reasons for a decision made by the Tribunal on 2 June 2016.
  2. [2]
    The Respondents engaged William Nicholas Bowman to construct a veranda roof using the RiTek Roofing System.  Subsequent to Mr Bowman’s  completion of this task, the Respondent’s plumber advised that the house roof drainage system could not be connected satisfactorily to the veranda roof and this fact was being demonstrated by leaking taking place.  He also made a number of observations about the quality of the work done.
  3. [3]
    On 7 November 2015, the Respondent accordingly refused to sign a Practical Completion Notice for the veranda roof presented to him by Mr Bowman on the grounds of the problems with the roof and on the advice of his plumber.  He contacted the RiTek company, who had recommended him to engage Mr Bowman, and asked them to recommend an independent roofing specialist to undertake an analysis of the roofing problems that would inform his next meeting with Mr Bowman. 
  4. [4]
    A RiTek representative, Ms Nadia Potts, attended the property, inspected the roof and then arranged for an independent roofing expert, Mr Ronald John Brack (the Applicant), to attend the property and he did so on 16 November 2015.  The Respondent gave evidence that the Applicant did not provide the report that he was looking for from this inspection. The Applicant gave evidence that he discussed the state of the roof with the Respondent and made a number of recommendations about how its unsatisfactory state could be remedied.
  5. [5]
    The Respondent met with Mr Bowman on 17 November 2015 and the Respondent gave evidence that Mr Bowman promised to do “whatever was needed” to remedy the situation at the conclusion of this meeting.  Mr Bowman, the Respondent advised, then requested a progress payment to cover supplies and a payment to the Applicant for his services in remedying the roof.  The Respondent paid him $3,000.00 on 19 November 2015.  Mr Bowman asked him to pay the residual amount from their contract, $1,049.91, on completion of the work. 
  6. [6]
    The Applicant commenced the work in January 2016 and, following its completion in early February, according to evidence given by the Respondent, the Applicant advised of his intention to send his invoice to Mr Bowman.  As he did not have Mr Bowman’s address, he advised that he would send it to the site address.
  7. [7]
    The Respondent then gave evidence that the invoice from the Applicant was received on or around 15 February 2016.  As it was addressed to the Respondent he returned if to the Applicant, advising that it needed to be sent to Mr Bowman.  On 15 February 2016 the Respondent paid the balance of their contract with Mr Bowman, an amount of $1049.91, to Bowman Building, Mr Bowman’s company.
  8. [8]
    On 23 March 2016, the Applicant filed a claim with QCAT, naming Mr Ken Farrow as the Respondent, for an amount of $4488.00.  Attached to this claim was a Statutory Declaration by the RiTek representative, Nadia Potts, stating, inter alia, that when the Respondent had contacted RiTek to complain about the poor workmanship of the contract, she had reminded him that his contract was with the builder, Mr Bowman.  Also attached to the application were an invoice dated 11 February 2016 addressed to “Mr and Mrs Farrow and a statement from the Applicant regarding his claim.
  9. [9]
    In his statement, the Applicant stated that he had been asked by RiTek to “have a look at the roof” and, when he had done so, the Respondent asked him what was needed to fix it and how much it would cost.  The Applicant’s view was that this was an indication that he had been engaged by the Respondent and that accordingly it was the Respondent who should pay him.  The Applicant gave evidence that it was his view that this conversation was to inform him for his meeting with Mr Bowman the following day in order to have some knowledge of what was required to be done to remediate the roof and what it would cost Mr Bowman to do so.
  10. [10]
    The evidence of both parties was contradictory in that, while both appeared to agree on the events that had taken place, their interpretation of those events differed.  The Applicant was of the view that a contract had been formed between the Respondent and himself and that, as he had performed according to that contract, it was for the Respondent to pay him.  On the other hand, the Respondent was clear that the contract was between Mr Bowman and himself and that it was for Mr Bowman to remediate the unsatisfactory work he had done on the veranda roof.  His view was that the Applicant had been engaged by Mr Bowman to this end and that therefore the money the Respondent paid to Mr Bowman when the roof was remediated by the Applicant was to be paid to the Applicant as the Respondent and Mr Bowman had discussed.
  11. [11]
    Given the contradictory nature of the oral and written evidence, the Tribunal looked to the extant paperwork to determine what its decision should be.  The paperwork demonstrated that the Respondent had engaged Mr Bowman to undertake the renovations that included the construction of the veranda roof and that, when these reached an acceptable standard of completion, the Respondent had paid Mr Bowman the value of the contract.   There was no evidence of a separate contract between the Respondent and the Applicant.
  12. [12]
    The Tribunal therefore concluded that there was a contract between the Respondent and Mr Bowman.  Mr Bowman did not construct the veranda roof to an acceptable standard and accordingly the Respondent refused to pay him until it was remedied.  Mr Bowman arranged for the Applicant to undertake the remedial work.  The Respondent made an advance payment from the residual money owing on the contract for roofing supplies and to pay the Applicant for his work.  When this was completed to the Respondent’s satisfaction, he paid Mr Bowman the balance of the contract money. 
  13. [13]
    However, the Applicant has advised that Mr Bowman did not pay him for his work and has sought to be paid by the Respondent. As the Respondent has already paid for the roof, it would be unfair for him to have to pay twice for the same work.   The unsatisfactory work done by Mr Bowman should not attract payment.  The remedial work done by the Applicant should be paid out of the money paid to Mr Bowman, supposedly for this latter work.  Accordingly the Tribunal joined Mr Bowman to the matter and ordered that he should pay the Applicant what he was owed. 
  14. [14]
    In taking this decision, the Tribunal relied upon provisions found in Part 5.4 of the Australian Consumer Law, Schedule 2, Chapter 5, to find that Mr Bowman was liable to remedy the work, which he performed to an unacceptable standard, at no additional cost to the Respondent.  As Mr Bowman engaged the Applicant to undertake this remedial work for which he, Mr Bowman, was liable, it was his responsibility to pay the Applicant for the work done from the monies received from the Respondent, or otherwise.
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Editorial Notes

  • Published Case Name:

    Brack v Farrow

  • Shortened Case Name:

    Brack v Farrow

  • MNC:

    [2016] QCAT 198

  • Court:

    QCAT

  • Judge(s):

    Member Francis

  • Date:

    02 Jun 2016

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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