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- Unreported Judgment
Marlken Pty Ltd v Scott QCAT 195
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Marlken Pty Ltd v Scott  QCAT 195
MARLKEN PTY LTD
9 July 2019
20 June 2019
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where final instalment outstanding – where home owner seeking certificates
Clarke v Cascade Pools (Qld) Pty Ltd  QCAT 323
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
- Ms Scott entered into a building contract with Marlken Pty Ltd (‘Marlken’) on 2 July 2018.
- The contract describes the building to be built as:
Panelform Gable Roof Dwelling + 1 Awning
- An annexure to the contract provides:
Front awning – engineering only – no allowance for supply or build
- The contact also attached plans of the dwelling. These plans include an awning.
- While there is some dispute about which pages of the contract were provided to
Ms Scott at the time of signing, the pages referred to above all bear her signature.
- Although not expressly stated in the contract, it is not in dispute that the contract was for construction of the dwelling to lock-up stage only.
- It appears that Ms Scott requested a number of changes to the plans, including the addition of further windows. Revised frame plans were sent by Marlken to Ms Scott on 13 September 2018.
- Ms Scott responded by email on 13 September 2018 as follows:
That looks absa-bloody-lutely fantastic Marls.
If all your measurements are as per Bruce’s sketch with frame sizes and those measurements we went thru the other day are all factored in, which they all appear to be … then it’s a big fat chubby double thumbs up from me.
- This appears to have been the high point in relations between the parties.
Application by Marlken
- Marlken seeks payment by Ms Scott of $4,005. This is stated to be the outstanding payment for works performed under the contract.
- The only evidence led by Marlken was three statements of Marleen Best, dated
26 March 2019, 26 April 2019 and 27 May 2019. In her statement dated 26 March 2019, Mrs Best stated that Marlken had completed its contractual side of the works.
- Other than Mrs Best’s assertion, there is no evidence before me that would enable me to be satisfied that Marlken has completed the contracted works. For example, there is no inspection report by an appropriately qualified expert, or even documentation held by Marlken as to the work undertaken at the site.
- The Tribunal cannot award amounts claimed without evidence in support of those claims:
In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of fact where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.
- In those circumstances, I am unable to be satisfied that Marlken has a contractual entitlement to payment of $4,005.
- For completeness, I note that the material provided by the parties contains references to an agreement reached at mediation. I am not satisfied that any agreement was reached at mediation for the reasons which follow.
- A mediation was apparently conducted by the Queensland Building and Construction Commission (‘QBCC’) on 23 January 2019. On that date, Sasha Bull of the QBCC wrote to the parties noting that agreement had been reached in relation to two issues, one of which was a deduction of $600 from the claimed outstanding amount of $4,005. Ms Bull went on to note that Ms Scott had requested time to seek further advice on certain issues.
- Further communication took place between the parties and Ms Bull, before the QBCC sent the following letter on 1 February 2019:
I refer to the dispute lodged with QBCC on 22 January 2019 and our telephone conversation of 1 February 2019 about building work being performed at the above property.
As discussed, it has been determined that in this instance an agreement regarding the dispute items cannot be reached.
- I regard the QBCC’s letter of 1 February 2019 as being conclusive evidence that no agreement was reached between the parties at the mediation on 23 January 2019. Whatever provisional agreement may have been reached, Ms Scott evidently decided not to confirm the agreement after seeking advice.
- When I put this to the parties at the hearing, they did not dispute that no agreement was reached.
- It follows that Marlken does not have an entitlement to recover $4,005 less $600 pursuant to an agreement reached at the mediation.
- The application is therefore dismissed.
Counter-application by Ms Scott
- In her counter-application filed on 1 April 2019, Ms Scott sought:
I want the tribunal to make the following order/s:
- The applicant to supply the respondent with the following items:-
Form 16 for …
Fitting of Windows
Fitting Internal and Back Door
Termite Management System
Compliance with BAL 12.5
- The Applicant to supply respondent with amended Engineering Drawings reflecting build
The Applicant to supply respondent with amended Energy Efficiency Design and report reflecting build
Form 15 and Form 16 confirming compliance with Energy Efficiency report
- Removal of Excess Building Waste as agreed to in QBCC mediation.
- The Applicant at its cost be responsible for performing any and all necessary building work to comply with order 1&2 and any incidental building work required to make good the property in its current condition.
- If the performance of the building work as per order 4, requires the respondent to remove any personal items from the property, or temporarily relocate, the applicant will be responsible for these costs.
- When I asked Ms Scott at the beginning of the hearing what relief she was seeking, she referred me to the counter-application.
- After the completion of evidence at the hearing, and during submissions, Ms Scott indicated that she wanted Marlken to pay for the installation of the awning on her property. I declined to give Ms Scott leave to amend her counter-application at this late stage in the hearing, particularly given that I had asked her what relief she was seeking at the beginning of the hearing. As noted above, parties must take responsibility for the preparation of their own case.
- During the course of the hearing, Marlken provided Ms Scott with the following documents:
- (a)Form 16 in relation to installation of windows, internal doors and external rear door;
- (b)Form 16 in relation Subterranean Termite Protection;
- (c)Form 16 in relation to Steel Frame Inspection;
- (d)Form 15 with amended engineering drawings attached.
- During his evidence, the engineer conceded that he had omitted to include 600mm eaves in his drawings.
- Marlken consented to the following orders:
- (a)Marlken is to provide further amended engineering drawings and a related Form 15 to reflect the dwelling as constructed within 28 days; and
- (b)Marlken is to provide an amended energy efficiency assessment report to reflect the dwelling as constructing within 28 days.
- I will make orders in those terms.
- Ms Scott called Chris Fahey to give evidence. Mr Fahey is an employee of the Gympie Regional Council. Mr Fahey gave evidence that compliance with BAL 12.5 is considered at the final inspection. As the building contract was only to lock-up stage and not final inspection, I do not consider it appropriate to order Marlken to provide a Form 16 in relation to this requirement.
- Ms Scott also called Marianne Leece to give evidence. Ms Leece is a professional energy assessor. Her evidence was that the building as constructed, with the additional windows, would meet the required energy efficiency rating provided the awning was constructed.
- Ms Scott’s evidence was that she did not intend to have the awning constructed. However, I note the following points:
- (a)The inclusion of the additional windows and other amendments to the plans were made at the request of Ms Scott.
- (b)The building contract is for the construction of a dwelling and awning.
- (c)There is no evidence before me that the dwelling as originally designed would have met the required energy efficiency rating without the awning.
- In those circumstances, I do not consider it appropriate to order Marlken to provide a Form 16 in relation to this requirement. I note that Marlken has agreed to provide an amended energy efficiency assessment.
- While the awning was included in the plans, the construction was not included in the building contract between Ms Scott and Marlken. If Ms Scott decides not to have the awning constructed, and this causes issues with her energy efficiency compliance, that is a matter for Ms Scott to deal with and not Marlken.
- In relation to the orders sought for removal of excess building waste as agreed to in the QBCC mediation, I have previously found that no agreement was reached at the mediation. The building contract provides:
Site clean up. If the customer requires the company to remove the packaging or left over materials and any soil from the site, unless noted otherwise in the agreement, the customer will pay these costs including labour and dump fees in addition to the agreement.
- The parties have each provided me with photographs of concrete around the slab. I am unable to discern from these photographs anything that would give rise to a contractual obligation on the part of Marlken to undertake removal work.
- The counter-application is therefore otherwise dismissed.
Clarke v Cascade Pools (Qld) Pty Ltd  QCAT 323, .
- Published Case Name:
Marlken Pty Ltd v Celeste Scott
- Shortened Case Name:
Marlken Pty Ltd v Scott
 QCAT 195
09 Jul 2019