Gardner v Mahony[2020] QCAT 398

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Gardner entered into a contract dated 20 December 2017 with Mr Mahony, a building contractor, for the construction of a ‘single dwelling as per the attached plans & specifications’^[1] (the Contract).
2. [2]
   Mr Gardner applied to the Tribunal for an order that Mr Mahony pay $28,692.25 to the Toowoomba Council in respect of Council infrastructure charges.  He contends that Mr Mahony is obliged by the Contract to pay such charges and that he is in breach of the Contract having failed to pay it.
3. [3]
   Mr Mahony denies he is in breach of the Contract.  He contends that Mr Gardner owes him money and that this claim has only arisen since they entered into a Deed of Forbearance, deferring the time for payment by Mr Gardner for variations under the Contract.  Mr Mahony has not specifically sought orders for recovery of amounts claimed as owing in these proceedings.  I also note such a claim cannot be before me as no filing fee in respect of a counter-application was paid.^[2]
4. [4]
   Mr Gardner relies upon a Construction Payment Schedule dated 16 January 2018 emailed to the Commonwealth Bank and copied to Mr Gardner on 16 April 2018 (‘the Payment Schedule’).  It states the Build price includes ‘Council infrastructure charges - $28,300 less value of site works if certified - $20,000’.
5. [5]
   As applicant, Mr Gardner, has the onus of proving his claim on the balance of probability.  Mr Gardner is required to establish that the Contract includes an obligation on Mr Mahony to pay the infrastructure charges and if so, that infrastructure charges in the amount claimed are payable.
6. [6]
   I am not satisfied that Mr Gardner has established that it is more likely than not that the infrastructure charge claimed is payable by Mr Mahony. 
7. [7]
   In determining obligations under a contract, the starting point is to construe the words of the documents forming the contract rather than subsequent documents or subsequent conversations.^[3] 
8. [8]
   There is limited evidence before me.  Mr Gardner was directed to file a copy of the contract between the parties.  He filed a five-page Schedule for QBCC New Home Construction Contract dated 20 December 2017 (‘Contract Schedule’).  The Contract Schedule refers to ‘plans & specifications’^[4] and to various ‘Conditions’.  General Conditions of New Home Construction dated July 2015 (‘General Conditions’) are stated to be contract documents along with plans, specifications and any other documents referred to in item 15 of the Contract Schedule.^[5] 
9. [9]
   Mr Gardner has filed a document entitled ‘Barlow Estate Preliminary Approval Varying the Effect of a Local Planning Instrument Preliminary Approval Document for Houses April 2011 (Revision B)’ but has not explained its relevance.  Mr Mahony’s evidence is that this document was first seen by him when it was sent to him by Mr Gardner on 13 April 2020.^[6]  On the evidence before me I am not satisfied it was a document forming part of the Contract.
10. [10]
    Mr Mahony’s statement of evidence sets out that:

    1. (a)
       he was contracted to complete the construction of a duplex commenced by another builder;
    2. (b)
       the Contract was entered into through a marketer;
    3. (c)
       he built to the ‘plans and engineering supplied by Christopher Gardner, the Standard Inclusions list that were supplied to Christopher Gardner through his marketer (attachment B) and the contract.’^[7]

11. [11]
    The General Conditions have not been produced to the Tribunal nor have the plans.  On Mr Mahony’s evidence the Standard Inclusions list may have formed the specifications in whole or part as referred to in the Contract, although the Contract Schedule does not specifically describe this document. 
12. [12]
    There is no reference in the Standard Inclusions list or the Contract Schedule of the inclusion of infrastructure charges as part of the Contract.

13. [13]
    Mr Mahony’s evidence is that:

    1. (a)
       the reference to infrastructure charges in the Payment Schedule related to a different contract and that the reference was left in the document in error;
    2. (b)
       the Payment Schedule was sent to the Commonwealth Bank by an employee of his to explain that the parties had agreed to reduce the deposit to $10,000 from $21,750^[8] and to increase the amount of the final payment;  
    3. (c)
       a similar document described as Amendment to Construction Contract with an Amended Construction Payment Schedule was signed by Mr Gardner on 8 May 2019 and on behalf of Mr Mahony on 1 May 2019.  I note that there is no reference in this document to the price including any amount for infrastructure charges;
    4. (d)
       he has not been invoiced by the Toowoomba Council for infrastructure charges, Mr Gardner did not notify him of infrastructure charges during the build and he assumed that Mr Gardner or the original builder had paid all council charges.    
14. [14]
    The Payment Schedule relied upon is not signed.  The form provides a space for the builder and the marketer to sign.  There is no space for Mr Gardner to sign. The form refers to infrastructure charges in the sum of $28,300, which is not the amount claimed.  Mr Gardner has not placed before me any evidence explaining the difference in the amounts. The form also refers to a deduction of $20,000 for the value of site works if certified.  There is no evidence before me about the value of site works nor certification.
15. [15]
    The Payment Schedule on its face is a document created after the Contract was formed.  I am not satisfied it is a document forming part of the Contract nor that it is relevant to construing the intentions of the parties as documented in the Contract.  In any event, I am not satisfied that such an unsigned document would be sufficient evidence to persuade me that on the balance of probability that the Contract contained the obligation Mr Gardner claims.  Apart from the Payment Schedule there is no reference to infrastructure charges forming part of Mr Mahony’s contractual obligations in the contract documents in evidence before me.  
16. [16]
    On the evidence before me it is more likely than not that the reference to infrastructure charges in the Payment Schedule was included in the document in error and did not form part of the Contract.
17. [17]
    Even if I was satisfied that the Contract contained such an obligation, which I am not, I am not satisfied that the obligation was to pay the amount claimed given the unexplained difference between the amount claimed and the amounts referred to in the Payment Schedule and the lack of evidence of the amount charged in respect of the site.  I note that there is no evidence before me that the Toowoomba Council has imposed infrastructure charges in respect of the site the subject of the Contract in the amount claimed by Mr Gardner or in any amount at all.  Mr Gardner has not filed in the Tribunal any documentary evidence of infrastructure charges imposed by the Toowoomba Council.
18. [18]
    Mr Gardner has failed to satisfy me that it is more likely than not that the Contract included an obligation to pay such charges and has failed to satisfy me that the amount claimed is payable.  In the circumstances, the application should be dismissed.