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- Unreported Judgment
Wintersun Glazing Pty Ltd v Thomas & Anor QCAT 67
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Wintersun Glazing Pty Ltd v Thomas & Anor  QCAT 67
WINTERSUN GLAZING PTY LTD
JULIAN KENNETH THOMAS
19 March 2019
29 November 2018
The Applicant’s claim is dismissed.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where the contract is varied – where there is a dispute over the terms of the contract – whether the Applicant is entitled to claim where there is defective work
APPEARANCES & REPRESENTATION:
M Gunn, Director of the Applicant
REASONS FOR DECISION
- The Applicant did work at 70 Falcon Street, Bayview Heights. The Applicant’s claim is for monies allegedly owed for work that had been undertaken.
- The Respondents’ position was that:
- (a)there was defective work that had not been rectified; and
- (b)there was a dispute as to the actual amount payable to the Applicant by the Respondents.
- The first issue was whether the work was finished satisfactorily. It is alleged that a sliding door and transition window louvre have not been installed to an acceptable level was standard.
Mark Gunn – Wintersun Glazing Pty Ltd
- Mr Gunn had looked at the complaint and was of the view that it was only a minor problem and that the work, which had been undertaken, exceeded the required standards.
- He conceded that the Respondents had emailed and called him several times to complain about this aspect of the work.
Steven Sargent - QBBC
- The complaint was about a glass sliding door, which was visibly out of plumb.
- He offered the evidence that the defect was of a non-structural nature with the door slightly out of plumb.
- When asked whether he would expected to be rectified he answered “yes” he would.
- He agreed with Mr Thirkol that there was a deviation and that the door was out of plumb.
Mr George Thirkol - engineer
- His evidence was that the sliding door was out of plumb. He said that it was not just out of plumb it was out an unacceptable level. He had used a spirit level against the door, which showed that the door was 35mm out over 2m, but even on a visual observation, he could see that the door was out of plumb.
- Mr Thirkol gave evidence that he had a lot of experience dealing with the installation of doors and windows. He said under cross-examination that he could see the door was out of plumb on a visual inspection. This was way out of any acceptable tolerance. He stated that the door needed to be un-fixed and taken out and prepared to replace the door without the plumb.
Discussion of the evidence
- Mr Gunn is the only party who believed that the complaint was minor. Mr Sargent was of the view that the work was defective. Mr Thirkol was of the view that the work was defective and required rectification.
- The Tribunal accepts the evidence of Mr Sargent and Mr Thirkol that the work was defective and required rectification.
- The Tribunal makes the following findings of fact:
- (a)the sliding door was not plumb and did not meet the required standards; and
- (b)the work needed to be rectified.
- The Applicant has not taken any steps to quantify the rectification because it was the Applicant’s position that the work that had been undertaken to the required standard. The onus of proof of establishing that the work is up to the required standard lies on the Applicant. The basis for entitlement to claim the monies is based on the position that the work has been done to a satisfactory standard. The Applicant has not been able to establish that the work has been undertaken to the required standard. This raises a question about the Applicant’s entitlement to the claim. This leaves the Applicant’s entitlement at best uncertain.
- The Tribunal is of the view that because the work has not been rectified by the Applicant, the Respondents are entitled to a set-off to the extent of the cost that is required to undertake rectification.
- The evidence before the Tribunal in relation to rectification was a quotation attached to the material provided by the Respondents, which is attachment 10 to the Respondent’s material. Master Glaze estimated the cost of the repair work at $7,106. The Tribunal notes that he was not called to give evidence at the hearing. Lianne Thomas gave evidence of another quote for $24,351 but again no one was called to give evidence.
- The second issue before the Tribunal is the dispute over the amount actually owed.
Lianne Margaret Thomas
- Ms Thomas gave evidence that when the original quote was provided, a certain number of doors had to be provided. The Applicant could not subsequently provide three doors so a credit was to be supplied. There was a difference of opinion between the Applicant and the Respondents over the amount allowed for the credit. The Respondents calculated the amount at $5,134 based on the cost of the other doors and the Applicant allowed a credit of $4,778.40.
- Ms Thomas stated that an invoice was not provided until much later and on her calculations, the amount owing was $2,135.80. This compares with the Applicant’s calculations of $6,951.50.
- The Tribunal accepts the Respondent’s evidence that the contract was varied and there was a difference of opinion between the Applicant and the Respondents’ over the variations.
- The Respondents conceded that the sum of $2,173.10 was payable once the work was rectified but were unable to demonstrate to the Tribunal how this had been calculated.
- The Tribunal notes that Mr Gunn did not question Lianne Thomas at all about her calculations of the amount the Respondents viewed as outstanding to the Applicant.
- The Tribunal is of the view that the Applicant has not established how much was outstanding under the contract. There is a disagreement between the parties over the quantum of the work on the varied agreements. Once the contract between the parties was varied, there should have been agreement over the work to be undertaken and the money payable. This has not happened and the Applicant and Respondents have different calculations on the amount payable. The differences between the parties and reasons for the differences was such that the Tribunal was unable to follow what had been agreed following the variation as to what was owed. The onus is on the Applicant and the Tribunal is not satisfied that the Applicant has established its entitlement to claim on the balance of probabilities.
- The Tribunals’ findings of fact are:
- (a)the original contract between the parties provided for a number of doors and the Applicant was unable to obtain a number of doors;
- (b)the contract was varied orally and there was no document drafted at the time setting out the terms of the variation; and
- (c)there is a dispute between the Applicant and Respondents over the terms of the variation.
- The Tribunal is of the view that the parties are not close in terms of the quantification of the outstanding monies.
- The only inference that can be made about rectification is that the cost of rectification could outweigh the amount outstanding to the Applicant. The Tribunal is of the view that the cost of rectification is clearly a set-off and the quantum of that set-off is unclear. The Applicant cannot prove its case because the amount outstanding with the set-off is unclear. The Applicant bears the onus of establishing its case. The Tribunal is not satisfied in the present case that the Applicant has proved its claim on the balance of probabilities. The Tribunal is further unable to ascertain how much is owing to the Applicant given that the Respondents are disputing the terms of the variation of the original contract.
- The Tribunal for these reasons is of the view that the Applicant has not established its case on the balance of probabilities and orders that the Application be dismissed for the reasons set out above.
- Published Case Name:
Wintersun Glazing Pty Ltd v Thomas & Anor
- Shortened Case Name:
Wintersun Glazing Pty Ltd v Thomas & Anor
 QCAT 67
19 Mar 2019