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- Unreported Judgment
Superior Cabinets & Design Pty Ltd v Vincent QCAT 336
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Superior Cabinets & Design Pty Ltd v Vincent  QCAT 336
Superior Cabinets & Design Pty Ltd
22 September 2021
31 August 2021
Senior Member Brown
The application for domestic building dispute filed 20 December 2019 is dismissed.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – where the applicant undertook building works for the respondent – where the works were completed as agreed – where the respondent failed to pay the full agreed price to the applicant – where the applicant lodged a domestic building dispute – where there was no enforceable contract – whether the applicant could recover the monies on a quantum meruit
Electronic Transactions (Queensland) Act 2001 (Qld) (ETA Act), s 14
Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(1), s 77(3)(a), 77(3)(h), sch 1B (3)(1)(a), sch 1B (4)(1), sch 1B (13)(5), sch 1B (14)(10), sch 2
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Roude v Helwani  NSWCA 310.
REASONS FOR DECISION
What are these proceedings about?
- Superior Cabinets says that it undertook building work for Ms Vincent, and says it is owed $5,772.20 for the work. Ms Vincent says that the building work was performed by Superior Cabinets in accordance with an agreement Superior Cabinets entered into with Brentkel Constructions Pty Ltd. Ms Vincent says that she has no indebtedness to Superior Cabinets.
Building disputes – the statutory framework
- The tribunal has jurisdiction to hear and decide building disputes. Building disputes include domestic building disputes. A domestic building dispute is a dispute about reviewable domestic work or a contract for the performance of reviewable domestic work between: a building owner and a building contractor; or 2 or more building contractors; or a building owner or building contractor and one of a number of specified persons. A domestic building dispute also includes a claim or dispute in negligence, nuisance or trespass relating to the performance of reviewable domestic work, other than a claim for personal injuries.
- The parties filed statements of evidence and gave evidence at the hearing on 1 September 2021.
- It was common ground between the parties that there are three issues for determination:
- (a)Who were the parties to the contract;
- (b)What was the contractual scope of works;
- (c)Were the works completed.
Who were the parties to the contract?
- The evidence of the applicant is that the contract was between the applicant and Ms Vincent. The evidence of Ms Vincent is that the contract was between the applicant and Brentkel Constructions Pty Ltd, a company now deregistered of which Ms Vincent’s husband, Mr Brent Vincent, was the sole director.
- It is not contentious that the building works undertaken by the applicant formed part of the construction of a new dwelling. Ms Vincent was the sole registered owner of the property on which the dwelling was being built.
- At the hearing Ms Vincent gave evidence that she had entered into a contract with a building contractor for the construction of the dwelling. Ms Vincent said that the contractor entered into a sub-contract with Brentkel Constructions Pty Ltd to undertake the building works. Just why this arrangement was entered into was not further elaborated upon by Ms Vincent. Ms Vincent’s evidence was that the details of these contractual arrangements were not communicated to the applicant.
- Ms Harrold gave evidence for the applicant. She is a director of the applicant and the company bookkeeper. Mr Greg Harrold is Ms Harrold’s husband and the managing director of the applicant. Mr Harrold did not give evidence. Ms Harrold’s evidence was that the applicant was not aware of the contractual arrangements identified by Ms Vincent relating to the construction of the dwelling and that, as far as the applicant was aware, the building works undertaken by the applicant were for Ms Vincent and her husband personally. Ms Harrold’s evidence was that the cost of the works was invoiced to Brentkel Constructions Pty Ltd at the request of Ms Vincent for reasons unknown to her or the applicant. Ms Harrold’s evidence was that the applicant’s quotes were addressed to Ms Vincent personally.
- It is appropriate here to examine more closely the evidence in relation to the building works and how they came to be undertaken.
- It is fair to observe that neither party particularly impressed with their recollection of the dates and times of relevant events. This is perhaps unsurprising given that the events occurred over 3 years ago.
- For reasons I will shortly set out, where the evidence of Ms Harrold and Ms Vincent is in conflict, I prefer the evidence of Ms Harrold.
- I am satisfied as to the following and make findings that:
- (a)Discussions took place between, variously, Ms Harrold, Mr Harrold, Ms Vincent and Mr Vincent at various times in or about May 2018 regarding the performance of building work to be undertaken by the applicant at Ms Vincent’s property at which a new home was being constructed;
- (b)The building works to be undertaken by the applicant included the installation of cabinetry and related works in a laundry, ensuite, mud room and kitchen;
- (c)The applicant prepared a quote dated 17 May 2018 addressed to Ms Vincent in the following terms (the first quote):
- To supply kitchen as per your drawings and my specification $15,750.00
- Laminated servery top with waterfall end $ 1,550.00
- 1 off discount for builder’s own kitchen $ -800.00
Sub total $16,500.00
GST $ 1,650.00
Total cost $18,150.00
- (d)The first quote was forwarded by the applicant to Ms Vincent by email on 17 May 2018;
- (e)The first quote was accompanied by a written specification prepared by the applicant (the first specification);
- (f)The first specification included a laminated servery top with a waterfall end;
- (g)After receipt by Ms Vincent of the first quote and the first specification, the parties engaged in discussions with a view to reducing the cost of the kitchen works. Specifically, Ms Vincent was desirous of ensuring that the costs did not exceed $15,000.00;
- (h)A further written specification was prepared by the applicant (the second specification) on 17 May 2018. The second specification differed from the first specification in two respects relating to finishes to the cabinet fronts. The laminated servery with waterfall end remained part of the specification;
- (i)A further quote dated 17 May 2018 was prepared by the applicant (the second quote). The quote provided:
- To supply kitchen as per your drawings and my specification $13,600.00
Sub total $13,600.00
GST $ 1,360.00
Total cost $14,960.00
- (j)A further written specification was prepared by the applicant (the third specification) on 17 May 2018. The third specification was in all respects, bar one, identical to the second specification. The difference was that the third specification made no reference to the laminated servery with waterfall end;
- (k)The second quote was based upon the third specification. Ms Vincent received the second quote and the third specification on 17 May 2018 and accepted the second quote on that date;
- (l)On 17 May 2018 the parties agreed that the kitchen works would be carried out in accordance with the second quote and the third specification;
- (m)The second quote did not include the installation of the laminated servery top with waterfall end;
- (n)The laminated servery top with waterfall end was not within the agreed scope of works;
- (o)The applicant undertook the works in accordance with the second quote and the third specification;
- (p)There is no evidence that the works were carried out other than in a proper and workmanlike manner and in accordance with the agreement between the parties;
- (q)Of the agreed contract price in respect of the kitchen works an amount of $10,472.00 has been paid to the applicant, leaving an amount of $4,488.00 outstanding.
- Who were the parties to the agreement? I find that the parties to the agreement were the applicant and Ms Vincent for the following reasons:
- (a)Ms Vincent was the owner of the dwelling under construction;
- (b)Ms Vincent’s own evidence was that the applicant had not been told of the contractual arrangements involving Brentkel Constructions Pty Ltd relating to the construction of the dwelling;
- (c)I accept that the applicant was not aware of the contractual arrangements entered into between Brentkel Constructions Pty Ltd and the head contractor;
- (d)The first quote and the second quote were addressed to Ms Vincent;
- (e)If invoices for works undertaken by the applicant were rendered to Brentkel Constructions Pty Ltd this was at the request of Ms Vincent for reasons not communicated to the applicant;
- (f)There was no convincing explanation offered by Ms Vincent as to the basis upon which the Tribunal should conclude that the agreement in respect of the kitchen works was between the applicant and Brentkel Constructions Pty Ltd particularly in light of Ms Vincent’s evidence that the contractual arrangements relating to the construction of the dwelling were not communicated to the applicant.
- I find that:
- The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) sets out specific minimum requirements in respect of domestic building contracts. For both level 1 regulated contracts and level 2 regulated contracts, the contract has effect only if it is in writing, signed by the parties and dated. If these minimum requirements are not met with the consequence that the agreement is of no effect, then the contract cannot be enforced by either party.
- In the course of the hearing, I asked Ms Harrold whether an email trail existed which might reveal acceptance of the second quote by Ms Vincent in the form of an electronic communication. Ms Harrold was unable to adduce any such evidence. Had such evidence existed, the Electronic Transactions (Queensland) Act 2001 (Qld) (ETA Act) may have had application. By s 14 of the ETA Act, if a document requires an individual’s signature, the requirement is taken to have been met by an electronic communication provided the following criteria are met:
- (a)A method is used to identify the signer;
- (b)A method is used to indicate the signer’s intention in regards to the information communicated in the document;
- (c)The method used for the electronic communication is reliable and appropriate, having regard to all of the circumstances; and
- (d)The signer consents to the use of an electronic signature as a means of executing the document.
- As I have observed however, the applicant was unable to adduce evidence to satisfy the requirements of s 14. In the absence of a contract between the parties satisfying the requirements of s 13(5) of schedule 1B of the QBCC Act, I find that the agreement between the parties in respect of the kitchen works is of no effect and is not enforceable at the suit of either party.
- In the absence of an enforceable contract, the applicant’s rights of recovery fall for consideration on the basis of a quantum meruit claim. In Pavey & Matthews Pty Ltd v Paul the High Court held that a right of a builder to recover on a quantum meruit does not depend upon the existence of an implied contract but on a claim to restitution independent of contract. The claim by the builder in that case to recover on a quantum meruit was therefore not an attempt to enforce a building contract. Such is the case here.
- A contractor may be entitled to payment of a fair and reasonable sum for work performance and materials supplied in circumstances where a benefit has been requested by, conferred upon, and/or accepted by another in circumstances where it is appropriate to order restitution or compensation. In such circumstances the beneficiary will be ordered to pay a fair and reasonable sum for the benefit.
- The following passage from Halsbury’s Laws of Australia is instructive as to the approach in assessing a quantum meruit claim:
When the contractor is entitled to recover the fair and reasonable value of the work performed, the assessment of this value is a question of fact to be determined with regard to all the relevant circumstances. In the normal case, this will involve an assessment of the reasonable cost of the benefit provided. This value will be, in the case of materials, the fair market price and, in the case of work, the reasonable remuneration at current rates. However, a benefit for these purposes does not seem to be limited to economic benefit.
In the context of building work the relevant circumstances include:
- (1)the fact that the work was performed by agreement but without specifying the cost;
- (2)the fact that the benefit, although accepted by the proprietor, was unsolicited;
- (3)any deficiencies in the work, whether by omission or by defective workmanship;
- (4)the fact that the parties had previously agreed to perform the work for an agreed sum but such agreement is no longer in existence;
- (5)where the contract has been discharged by breach of the proprietor, the fact that the contractor has suffered real detriment;
- (6)the existence of an unenforceable contract to perform the work; and
- (7)where the contract was unenforceable because of a wrongful act of the contractor, the fact that the proprietor has suffered loss by reason of the wrongful act.
- The onus was upon the applicant, in circumstances where it is unable to enforce the contract between the parties, to prove the reasonableness of its charges and the amount claimed. There was no detailed evidence by the applicant as to the work undertaken, how its charges were calculated or the reasonableness of those charges.
- In Roude v Helwani the evidence of the builder in support of a claim on a quantum meruit was contained in various affidavits annexed to which was detailed material showing what work had been carried out and how the invoices rendered by the builder were broken down by reference to the activities carried out. There was a high degree of specificity provided by the builder in his evidence relating to each of the various items referred to in the invoices including the quantity of materials used and the price per unit of various materials. There was also evidence from the builder as to his qualifications, level of experience and the basis upon which he was, himself, able to provide expert evidence as to the reasonableness of the amounts charged. On appeal, the New South Wales Court of Appeal held that reference to an external standard such as market value is not essential to establishing the reasonable value of services provided. The evidence of the builder in that case was sufficient.
- The facts here are different to those in Roude. Firstly, the applicant did not provide a detailed breakdown of the work undertaken. Secondly, there was no evidence from Mr Harrold (who was presumably the builder who undertook the kitchen works) as to his experience or the reasonableness of the amounts charged for the works. Thirdly, there was no evidence from Ms Harrold addressing these issues assuming she was qualified to give such evidence. Accordingly, there is no evidence before the Tribunal as to the reasonableness of the applicant’s charges in undertaking the work.
- It follows from the foregoing that the applicant has not established an evidentiary basis upon which it may succeed in a claim based on a quantum meruit.
- I find that:
- (a)The contract between the applicant and Ms Vincent comprising the second quote and the third specification does not comply with the requirements of s 13(5) of the QBCC Act and is therefore of no effect;
- (b)The contract between the parties cannot be enforced by either party;
- (c)The applicant has failed to make out a claim to recover on a quantum meruit basis.
- It follows that the application for domestic building dispute filed 20 December 2019 must be dismissed. I make orders accordingly.
 Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(1).
 Ibid, sch 2 (definition of ‘building dispute’).
 Ibid, sch 2 (definition of ‘domestic building dispute’).
 Ibid, sch 1B, 4(1)(b).
 QBCC Act, s 77(3)(a).
 Ibid, s77(3)(h).
 Exhibit 4
 Exhibit 5
 QBCC Act, sch 1B, s 1.
 Ibid, sch 1B, s 4(1)(a).
 Ibid, sch 1B, s 3(1)(a).
 Ibid, sch 1B, s 6(1)(a).
 Ibid, sch 1B, 13(5) s 14(10).
 Electronic Transactions (Queensland) Act 2001 (Qld) (ETA Act), s 14.
 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221.
 Lexis Nexis, Halsbury’s Laws of Australia, (at 7 March 2018), 65 Building and construction, ‘5 Payment for work’ [65-1270].
 Roude v Helwani  NSWCA 310.
- Published Case Name:
Superior Cabinets & Design Pty Ltd v Vincent
- Shortened Case Name:
Superior Cabinets & Design Pty Ltd v Vincent
 QCAT 336
Senior Member Brown
22 Sep 2021