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Gray v Simmons[2016] QCAT 239

CITATION:

Gray v Simmons [2016] QCAT 239

PARTIES:

Diana June Gray

(Applicant)

 

v

 

Stuart Gordon Simmons

(Respondent)

APPLICATION NUMBER:

BDL052-15

MATTER TYPE:

Building matters

HEARING DATE:

13 May 2016

HEARD AT:

Maroochydore

DECISION OF:

Member Quinlivan

DELIVERED ON:

28 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The application of Diana June Gray dated 5 March 2015 is dismissed.

CATCHWORDS:

Building dispute -  unlicensed builder -  Direction to Rectify and/or Complete

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Diana Gray

RESPONDENT:

Stuart Gordon Simmons

REASONS FOR DECISION

Introduction  

  1. [1]
    Ms Diana Gray is the owner of a house at 219 Amamoor-Dagun Rd, at Amamoor. In September 2011, she decided to get a new roof installed on her house. She discussed her proposal with her neighbour Mr Stuart Simmons who offered to assist her. 
  2. [2]
    Following a discussion with an architect friend of Ms Gray, she and Mr Simmons signed an “agreement” dated 16 November 2011 to re-roof her existing home to her satisfaction, and to carry out repairs to her dwelling.
  3. [3]
    The Agreement stated that no positive quotation was given but an estimate of $10,000 to $11,000 was given verbally. It also provided that if the amount was reaching the limit of $11,000 prior to completion, Ms Gray would be notified so adjustments could be made.
  4. [4]
    It was estimated that the job would require 2 men for 8 days being 128 man hours.
  5. [5]
    Ms Gray claims that from the outset there was an issue about Mr Simmons qualifications as a builder. Mr Simmons says that he asked a friend Mr Dom Pomerenke to assist him with the work. He denies that there was ever any discussion about whether either of them were registered builders.
  6. [6]
    According to correspondence dated 31 October 2013 from the Building Services Authority (BSA) the work was completed on 13 January 2012. The BSA also noted that there was no written evidence to suggest that the contractor claimed to hold a licence at the time the contract was signed or when work commenced.
  7. [7]
    The BSA was not satisfied that Mr Simmons made any fraudulent comments with regards to holding a BSA licence. Consequently, there was no insurance taken out on the project.
  8. [8]
    From November 2011 to January 2012 there is documentary evidence to show that Ms Gray paid the amount of $11,580 to Mr Simmons for the work done to her property.
  9. [9]
    On 25 January 2012 Mr Simmons sought a further payment from Ms Gray for an amount of $3,586 being the difference between the amount paid to date by Ms Gray of $11,580 and the total amount of $15,166 claimed by Mr Simmons for the work claimed to have been done.
  10. [10]
    Subsequently, Mr Simmons brought an application in QCAT seeking to recover the balance of $3756.50 as a minor debt. The matter was determined by QCAT on 14 February 2013 with an order stating:

“The Applicant, Mr Stewart Gordon (Tex) Simmons, shall pay the Respondent, Ms Diana Gray, the sum of $3,561.30 final settlement of all issues in this dispute”.

  1. [11]
    Following these proceedings Ms Gray complained to the Building Services Authority.
  2. [12]
    On 1 May 2013 the BSA conducted an inspection of Ms Gray’s property and on 8 May 2013 concluded that as the contractor was not licensed and had carried out defective building work.
  3. [13]
    In the “Background” to the BSA Report it is noted that “The Contractor made an application to QCAT (BDL297-12) against the owner for monies owed. QCAT’s decision was the applicant (contractor) Mr Simmons shall pay the Respondent Ms Gray $3,561.30 as final settlement of all issues in this dispute”.
  4. [14]
    The BSA issued a formal Direction to Rectify and/or Complete to Mr Simmons on 25 June 2013. It appears to be common ground between the parties that the Notice was not complied with. The BSA closed its file on 31 October 2013.
  5. [15]
    Correspondence from the BSA noted that Ms Gray had reported that a number of Direction items had not been satisfactorily attended to within the specified timeframe.
  6. [16]
    The BSA confirmed that it managed a Home Warranty Insurance policy which assists homeowners should a contractor fail to satisfactorily comply with a BSA direction and the work falls within the definition of “residential construction work” under the policy.
  7. [17]
    While the work came within the definition of residential construction work, the BSA was unable to assist Ms Gray further with the complaint for a number of reasons. 
  8. [18]
    At the time of the agreement between Ms Gray and Mr Simmons, he did not hold a BSA license covered by the statutory insurance scheme. No QBSA insurance premium was paid in respect to the contract works. There was no written evidence to suggest that Mr Simmons claimed to hold a license at the time the contract was signed or when the work commenced.
  9. [19]
    The BSA considered the relevant section of the Queensland Building Services Authority Act 1991 as well as their own file and statements provided by Ms Gray and concluded that Mr Simmons did not make any fraudulent comments with regard to holding a BSA license. As a result, they were not able to assist Ms Gray further.
  10. [20]
    Correspondence from QBCC (formerly BSA) dated 14 April 2015, confirmed that they were unable to provide further assistance with the dispute between Ms Gray and Mr Simmons.
  11. [21]
    On 5 March 2015 Ms Gray commenced these proceedings seeking an order that Mr Simmons pay “to have everything put right as on the quotes she ha(d) obtained”. She submitted that the BSA directed Mr Simmons to get a licensed builder to carry out the work on his behalf. She said that he had ignored the Direction.
  12. [22]
    Ms Gray obtained 2 quotes in the amounts of $9250.00 and $31,230.81 to rectify all defects that were outlined in the BSA report dated 1 May 2013.

Discussion 

  1. [23]
    The issue to be determined in this matter is: Should Ms Gray be able to recover from Mr Simmons the cost “to have everything put right as on the quotes”.
  2. [24]
    Ms Gray considers that that the orders she is seeking should be made because Mr Simmons tried to scam her by what happened. She says she has had to live with the problems for three years, leaking roof in several areas, vermin coming into the house through the ceiling including snakes, centipedes, ants and lizards etcetera - not to mention all the noises of birds nesting between the two roofs.
  3. [25]
    She says she cannot sell her property until the roof passes BSA approval and as she is 70 this year, she is unable to handle the work load much longer. She says that the stress of all of this has wrecked her health and continues to do so. She says she has had to live in shocking discomfort as Mr Simmons neglected to put in any insulation as requested. She says it is like living in a sauna.
  4. [26]
    Unfortunately for Ms Gray it appears that the issues she has raised appear to have already been dealt with by the Tribunal. Mr Simmons commenced proceedings against Miss Gray in April 2012. At that time, he was seeking the amount of $3756.50 from Ms Gray for payment for the work he said he had done for her.
  5. [27]
    Mr Simmons was ordered to pay to Miss Gray the amount of $3561.30 in final settlement of all issues in this dispute.
  6. [28]
    Prior to the decision in the previous proceedings, Ms Gray wrote to the Tribunal on 21 April 2012. She provided comprehensive details regarding her dissatisfaction with the job that Mr Simmons had done. She said “the whole roof ha(d) been left with a gap between each roof of approximately 5 inches allowing rats, snakes, birds, lice et cetera to collect in and between the two roofs and now run through her ceilings”.
  7. [29]
    Ms Gray also identified that she had asked Mr Simmons “to finish off the job as no downpipes had been put from the gutters to the tank and he had not put her veranda rail on, which was in the quote”. When compared with the Notice to Rectify and the BSA Inspection Report dated 8 May 2013 it is apparent that the matters raised are the same as those referred to by Ms Grey in the previous proceedings before QCAT.
  8. [30]
    However, she has not established why these matters should now be paid for by Mr Simmons.
  9. [31]
    A decision in the Appeal jurisdiction of QCAT by Senior Member Stilgoe in the matter of Morley v. Smith, [2016] QCATA 4 at para 9 refers to 2 leading authorities[1] and notes that a party may be estopped from raising a claim which it could have litigated in previous proceedings if it was unreasonable for the claim not to have been litigated. …The Tribunal was entitled to find, had it been necessary, that (the applicant) was then estopped from pursuing a claim in her own right.
  10. [32]
    In this case, I find that Ms Gray, did raise previously, the matters she is now seeking to re-visit in these proceedings. It is also apparent from the decision in those proceedings that she was successful.
  11. [33]
    I am not satisfied that she has demonstrated on the balance of probabilities that Mr Simmons has any further liability to her. Therefore, the Order of the Tribunal is:

The application of Diana June Gray dated 5 March 2015 is dismissed.

Footnotes

[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602; Clout & Ors v Klein & Ors [2001] QSC 401 at [42].

Close

Editorial Notes

  • Published Case Name:

    Gray v Simmons

  • Shortened Case Name:

    Gray v Simmons

  • MNC:

    [2016] QCAT 239

  • Court:

    QCAT

  • Judge(s):

    Member Quinlivan

  • Date:

    28 Jul 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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