Little v Morgan[2018] QCAT 305

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Bryan Little, the homeowner, asked the son of some friends to build him a kitchen at a house that he, and his partner, Tracey, had recently agreed to purchase at 13-17 Peel Road, Ningi. The friend’s son, was Jake Morgan, the respondent. He was young and recently qualified as a cabinetmaker.
2. [2]
   Mr Little, already, had obtained a quote for $11,000 from another kitchen installer. Before Mr Little completed the purchase of the house the parties were permitted, by the then owners, to inspect the kitchen and take measurements. That was during the month of June 2016. Mr Little provided the $11,000 quotation, with the estimate removed, as an indication of the scope of works required. Mr Morgan provided Mr Little with a concept sketch which Mr Little described as ‘excellent’. However, from that point on, he alleges the job fell apart because of poor planning, execution, poor communication and management. He, also, alleges the work was not done in a workman like manner.
3. [3]
   These allegations are disputed by Mr Morgan.
4. [4]
   The arrangement consists of a one-page handwritten document on the letterhead of Mr Morgan's parents’ business, A B Steel Suppliers. That entity denies any involvement and, Mr Morgan, concedes that he did not seek their permission to use the letterhead. I accept that A B Steel Supplies had no involvement, although, Mr Morgan used its premises as a workshop. The quotation, as written, was as follows:

7-7-2016

To Tracey

replacement of bench tops plus

colour board for doors and draws

can not supplye handles but will

fit rip out of half kitchen + replace

with wall oven over head and draw

bank’s if wanting glass doors and

lights for overhead’s will be

extra.

       Sub $8,200.00  GST  $820.00                                                                                                                 Total $9,020.00

5. [5]
   The offer was accepted by Tracey on 10 July 2016 and, a notation to that effect, was endorsed on the quotation.
6. [6]
   Mr Morgan made it clear to Mr Little that he was employed on a full-time basis, so it would take at least four weeks to build the kitchen in his workshop outside normal working hours and, further time would be required to install the kitchen with assistance. He says Mr Little agreed with that arrangement.
7. [7]
   Mr Morgan did not include any component for labour in the quote. He undertook the project, he says, because of Mr Little’s friendship with his parents and because he enjoyed cabinetry work. I accept that to be the case.
8. [8]
   It became obvious, in the course of the hearing, that Mr Morgan has a poor recollection of the dates that events took place. His statement of evidence contains numerous errors in relation to the timing of events. Having said that, I found him to be a truthful witness, and although his timing might be out, I believed his evidence as to the sequence of events, to be correct.
9. [9]
   On 10 July 2016 Mr Little paid $2,000 as part payment of the contract sum for the cost of materials. Mr Morgan says on that day (actually it was on 17 July 2016)^[1] he assisted Mr Little to remove the previous kitchen from the property at no charge to Mr Little. Mr Little says that was included in the quote which certainly refers to ‘rip out of half kitchen’. However, the kitchen installer’s quote I referred to earlier, which was the indicative scope of works, was endorsed as follows ‘Removal and all other subcontractors (sic) by owner, we can assist if needed’.
10. [10]
    Mr Morgan says, that despite the agreed time frame for construction, he was contacted by Mr Little on 13 July 2016. Mr Little demanded that he install the kitchen that night as he had arranged for other tradespeople to start work on the property and they could not start work until he had installed kitchen. Mr Morgan advised that at that time he had only constructed half of the kitchen. Mr Little was insistent. Again, it seems that Mr Morgan’s recollection of dates appears incorrect as Mr Little has photographs of the partially assembled kitchen in the workshop on 4 August 2016. Mr Little says that it was not until 9 August 2016 that Mr Morgan commenced installing the kitchen.
11. [11]
    Although the dates are wrong, and Mr Morgan had more time to complete the work than he remembers, I accept that he felt pressured by Mr Little to install the kitchen earlier than he had anticipated. I accept Mr Morgan’s evidence that Mr Little was insistent that the kitchen be installed the night he called Mr Morgan. Consequently, Mr Morgan arrived on the evening of that conversation, which I find to be 9 August 2016 and not 13 July 2016, to install the partly constructed kitchen.
12. [12]
    On entering the property he noticed that Mr Little had arranged for a tiler to tile the house the same day. However, at that time the kitchen had not been tiled. Mr Morgan advised Mr Little that it should not be tiled until the kitchen was completely installed, for the reason, that the bench tops would not line up and there would be uneven gaps all round. Mr Little was insistent that the deadline had to be met. Mr Morgan reasoned with Mr Little that if the kitchen was tiled it would put out all his measurements and benches and cabinets would not line up correctly. I accept that this conversation took place.
13. [13]
    On 14 July 2016 Mr Little paid a further $2,000 of the contract sum for the cost of materials.
14. [14]
    On 26 July 2016 Mr Morgan telephoned Tracey to advise that the bench tops for her kitchen had arrived. Again, the date is wrong as Mr Little and his partner had moved into the premises on 2 September 2016 and it appears that the conversation took place at a time when they had already moved. She asked Mr Morgan to attend that afternoon to install them. He did as requested. On arrival, he noted the kitchen area had been tiled despite his clear instructions to Mr Little not to do so. Consequently, he says that the bench tops would not correctly lineup due to the existing kitchen cupboard not being fastened to the floor. The tiling also prevented movement to properly position existing kitchen cupboards, not fastened to the floor, and the new bench tops. Mr Little was not present at the time so Mr Morgan left the bench tops at the property uninstalled so they could discuss the issue further with Mr Little at a later time.
15. [15]
    The following day, Mr Morgan received a phone call from Mr Little demanding an explanation for why the bench tops had not been installed. Mr Morgan explained. Mr Little demanded that the issue be fixed immediately. Mr Morgan with a friend, Mr Roy Neilson attended that afternoon.
16. [16]
    When they arrived Mr Little was not home. They commenced work and, as expected, the bench top did not line up. Subsequently, Mr Little arrived home and became immediately aggressive and abusive towards the two young men. He would not accept any explanation. He then ejected the two men from his house stating ‘your faces are never to be seen in this house again and take your bench tops and get out of my house’. I have omitted the profanities that Mr Morgan says accompanied Mr Little’s demands. Despite the invitation, Mr Morgan did not take back the bench tops but, after collecting his tools, he and Mr Neilson left the house.
17. [17]
    Mr Neilson gave evidence which, generally, corroborated Mr Morgan’s account. I accept him as a truthful witness. Mr Little’s account of this day essentially, did not depart from the other versions. Tracey, Mr Little’s partner did not give evidence.
18. [18]
    Mr Little called an expert Mr Donald Dixon who was a builder and not a cabinet maker. Indeed, in cross examination he conceded that on issues of cabinet making he would have to defer to Mr Morgan. Mr Dixon’s report identifies a number of defects in the kitchen bench tops as installed. Mainly gaps in the bench tops. He was of the opinion that the kitchen bench units need to be disassembled. He thought the carcasses, which comprise the modular units of single, two or three door (or drawer) width, could be reused. I found Mr Dixon to be fair in his assessment and I, generally, accept his evidence.
19. [19]
    Mr Morgan says he had commenced gluing the bench tops and, at the time, he was ejected while in the process of adjusting the cabinetry. Had he been left alone he says he could have lined up the bench tops. However, the glue was allowed to set and now the bench tops have to be replaced. In his written submissions he does not mention this. It is only in the course of cross examination of Mr Dixon and in Mr Morgan’s evidence does this issue arise.
20. [20]
    Mr Little says that at the time he blew up, Mr Morgan was attaching stickers to cover the heads of the fixing screws. He asked Mr Morgan what he was going to do to fix the alignment of the kitchen and, allegedly, Mr Morgan responded ‘I dunno’. Mr Morgan in his own evidence admits that he had tried to install the bench top but it would not align properly. He says he tried to explain what needed to be done to rectify the issue which was either to remove certain tiles that had been laid before the completion of the kitchen or remove existing cupboards (island breakfast bar) and replace with new cupboards to sit on top of the new tiles. It was at that moment that Mr Little exploded.
21. [21]
    The impression I gained, in the course of the hearing, was that Mr Little was inclined to be impatient and intolerant, and at times, aggressive. I think he behaved like that on the day Mr Morgan and Mr Neilson were ejected from the premises. I suspect, that Mr Morgan was having difficulty in getting the benches to align and was, at that time, uncertain as to what he was going to do next. However, in view of the nature of the arrangement which formed the agreement between the parties, that being, that Mr Morgan was doing this project in his spare time, for the cost of materials only and at a significant discount, to what the cost of such a kitchen would be had Mr Little engaged a commercial kitchen installer, it was incumbent upon Mr Little to be more accommodating and to allow Mr Morgan the opportunity of completing the job.
22. [22]
    I am satisfied that Mr Morgan had the skills to complete the kitchen, he was a qualified cabinet maker.
23. [23]
    As stated earlier, Mr Morgan was not a licensed builder. Consequently, he committed an offence under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). Fortunately for him, he was only warned and not fined.
24. [24]
    Mr Little made a complaint to the Queensland Building and Construction Commission on 5 March 2017. The works were inspected on 29 June 2017 and a number of defects were noted. The defects were particularised as ‘ill-fitting cabinetry, cabinets not square/parallel to kick panels and bench tops. Bad joins on bench top etc. subsequent water damage’. A direction to rectify the work was issued on 14 July 2017. As Mr Morgan was not licensed it was incumbent upon him to obtain a licensed cabinetmaker to complete the work for him. Mr Morgan says that on 21 July 2017 he became aware of the direction, and on that day, requested an extension of time carry out the work. The extension of time was not granted. He did not carry out the work as directed by 28 August 2017 and was fined $2,523.
25. [25]
    Mr Morgan’s quotation, to do the work, was for more than $3,300.00 and would fall within the category of a Level 1 regulated contract under s 6 of Schedule 1B of the QBCC Act. The document referred to as the agreement does not comply with section 13 of Schedule 1B of the QBCC Act in a number of respects. However, as Mr Morgan was not the holder of the appropriate builder’s licence he is not entitled to any monetary or other consideration for doing so. Pursuant to s 42 (4) of the QBCC Act Mr Morgan is not stopped from claiming reasonable remuneration for the work he has carried out but is limited to the cost of materials and labour but not his own labour.
26. [26]
    Mr Little has submitted quotations by other cabinetmakers to rectify the work which included removal of the existing cabinets, replacement of bench tops and replacement of bulkheads. One was for $5,655, another which was for the complete supply and install of new kitchen cabinets and bench tops, was for $24,226.40. Both quotations were inclusive of GST. The providers of those quotations did not give evidence. I am not prepared to give any weight to those documents.
27. [27]
    Mr Morgan does not apply for any relief in his response and counter application. In his written submissions and statement of evidence Mr Morgan claims that he has spent $7,887 inclusive of GST on materials to construct the kitchen. That sum includes $4,000 paid for by Mr Little. Mr Morgan has not particularised the materials he purchased which make up the balance of $7,887 he has expended on the kitchen. The kitchen was, at the time Mr Morgan was ejected from the premises, nearly complete. Virtually all materials had been supplied other than some kick boards and white boards I will refer to later in these reasons. What remained to be done was the assembly of the kitchen. As Mr Morgan was not charging for his labour I am prepared to accept that he has expended that amount on materials.
28. [28]
    In his statement of evidence, and submissions by his counsel, Mr Morgan claims the balance of $5,020 inclusive of GST as being owed under the contract which he says he is ready willing and able to complete by employing an appropriately licensed cabinet maker.
29. [29]
    Mr Morgan estimated the cost of completing the work as being $1,650 comprising the supply of a new bench top at $1205.80 plus GST,^[2] 4 hours of labour at $80 an hour to fit the new bench top and a further $85 to repair a hole. I note that in his Statement of Evidence Mr Morgan referred to 2 further items being ‘brushed aluminium kicks $350.00 plus GST’ and ‘whiteboard $453plus GST’. I accept that the reasonable cost of a new bench top is $1,205.80. The total comes to $2,654.80 inclusive of GST.
30. [30]
    The expert Mr Dixon, essentially, agreed with the hourly cost of $80 per hour as fair and reasonable. He also agreed that a competent cabinet maker working uninterrupted would take about four hours to rectify the kitchen. I find that $2,654.80 inclusive of GST is a reasonable estimate of the costs of rectifying the work.
31. [31]
    On the other hand, Mr Little seeks damages of $11,940, comprising $4,000 refund of monies paid, $9,020 including GST being the original quoted amount in order to get the job completed and $1,430 being the cost of an expert's report as well as the cost of the expert attending to give evidence at the Tribunal. Mr Little relies upon quotation from Burgess Kitchens & Cabinet Makers as his estimate of the cost of rectification. The quotation includes the costs of plumbing, electrical work, tiling, plastering and painting by subcontractors. Such work was never included in Mr Morgan's quotation. It also envisages the construction of new carcasses which according to Mr Dixon would be unnecessary.
32. [32]
    The claim by Mr Little for the costs of an expert report and his attendance at the hearing are costs and not part of the claim.
33. [33]
    Mr Morgan, by letter dated 27 February 2017, offered to remove the kitchen and repay Mr Little the sum of $4,000 full and final settlement.^[3] It was an open offer and was rejected by Mr Little. Mr Morgan made a further open offer^[4] on 7 August 2017 to repay Mr Little $4,100 within five working days. That claim was also rejected.
34. [34]
    Mr Little’s claim is excessive and unreasonable. I consider that he has behaved unreasonably not only during the building stage but also, subsequently, in the course of these proceedings.
35. [35]
    The cost of rectification I find to be $2,654.80 inclusive of GST. Mr Little has had the benefit of the kitchen albeit with some defects. Mr Morgan has expended $3,877 on materials, over and above what Mr Little paid him. In my opinion, even though unlicensed, Mr Morgan is entitled to recover that amount. I set off the amount of $2,654.80 and direct Mr Little to pay Mr Morgan the sum of $1,222.20.
36. [36]
    I invite the parties to file written submissions in relation to costs. Such submissions, if any, to be filed by the Applicant by 21 September 2018 and by the Respondent by 30 September 2018.