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Kissun v Modern Group (Qld) Pty Ltd[2021] QCAT 379

Kissun v Modern Group (Qld) Pty Ltd[2021] QCAT 379

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Kissun v Modern Group (Qld) Pty Ltd [2021] QCAT 379

PARTIES:

SARITA KISSUN

(applicant)

v

MODERN GROUP (QLD) PTY LTD T/A MODERN GROUP

(respondent)

APPLICATION NO/S:

BDL209–19

MATTER TYPE:

Building matters

DELIVERED ON:

1 November 2021

HEARING DATE:

6 October 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The application is dismissed.  

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the applicant says a building contract was to be funded by home insurance proceeds – where the applicant seeks to compel the builder to co-operate with the insurance claim requirements  – whether the builder made a promise to supply photographs and a report for the insurer – where several dates are disputed – whether terms should be implied into the building contract – whether the applicant is entitled to relief

Allen & Anor v Contrast Constructions Pty Ltd [2021] QCATA 43

Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546

Hawkins v Clayton (1988) 164 CLR 539

Kime v Klepper [2020] QCAT 207

Natalie Cooper v Daniel Murray McGaveston [2019] QCAT 244

Queensland Building and Construction Commission Act 1991 (Qld), s 77(2), Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(3)

APPEARANCES &
REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is this application about?

  1. [1]
    Ms Kissun owns a home that she says suffered roof damage in a storm in February 2017.  She says she engaged the respondent, a licensed building company (“Modern”) to inspect the damage and to provide a report and photographs for insurance purposes and that, following that attendance, the parties entered into a contract for Modern to replace Ms Kissun’s roof.  
  2. [2]
    Ms Kissun’s insurance claim was subsequently denied, although the claim file has been left open. Ms Kissun says the claim was only denied because Modern failed to provide an adequate report including photographs of the roof to her insurer, in breach of the parties’ agreement.   
  3. [3]
    By an application for a domestic building dispute filed 7 August 2019, Ms Kissun requested the tribunal to order that Modern provide her with:
    1. (a)
      a detailed report of the storm damage to the roof that warranted replacement of the roof; and
    2. (b)
      photographs of the storm damage to the roof that she says she had requested be taken prior to work commencing,

failing which, she seeks to be reimbursed for monies she paid Modern for the roof, and to be relieved from any further payments to Modern (or more correctly, from paying the balance owing to Certegy, the company who funded the purchase price under the building contract).

  1. [4]
    The grounds upon which Ms Kissun seeks relief are that:
    1. (a)
      Modern misled her into entering into contract for roofing work by representing that it would be fully funded by insurance proceeds; and/or
    2. (b)
      Modern breached an implied term of the contract that made it subject to:
      1. the insurance claim being approved; and/or
      2. Modern providing photographs and a detailed report to enable the insurance claim to proceed successfully; and
    3. (c)
      Ms Kissun’s circumstances are of excessive financial hardship and the roof is not, and was never affordable, without insurance proceeds to fund it.
  2. [5]
    In its response filed on 13 September 2019 Modern says that it did provide Ms Kissun’s insurer with a report.  It is otherwise silent as to the orders sought other than to deny all of Ms Kissun’s claims.
  3. [6]
    Mr McMahon, General Manager (Qld) for Modern appeared in person at the hearing, and Ms Kissun also appeared in person with the support of her friend, Ms Brookes.

Does the tribunal have jurisdiction to hear this application?

Is the application a “building dispute”?

  1. [7]
    Section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) confers jurisdiction on the tribunal to hear building disputes.
  2. [8]
    A building dispute includes a “domestic building dispute”[1] which, in turn, includes (among other things):
    1. (a)
      a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; and
    2. (b)
      a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries.[2]
  3. [9]
    ‘Reviewable domestic work’ means ‘domestic building work’,[3] which includes work comprising the renovation, alteration, extension, improvement or repair of a home.
  4. [10]
    As it is clear from the material filed, and not disputed by either party, that Modern undertook roofing work as part of improvement or repair (or both) of Ms Kissun’s home, I am satisfied that the work undertaken by Modern was domestic building work.
  5. [11]
    Although Ms Kissun subsequently[4] raised an issue of defective building work there is no evidence before the tribunal in relation to that and Ms Kissun confirmed in the hearing that it was not an issue she was pursuing.  I therefore proceeded on the basis that the application is, in essence, a contractual dispute.
  6. [12]
    A claim about the breach of an implied term of a contract relating to the performance of ‘reviewable domestic work’ and a claim that Modern induced Ms Kissun to enter into the contract by misrepresentation are claims relating to a contract for the performance of ‘reviewable domestic work’.[5]
  7. [13]
    Therefore, I am satisfied that the dispute the subject of the application is a ‘domestic building dispute’.

Has the applicant complied with dispute resolution requirements?

  1. [14]
    Although the tribunal has jurisdiction to hear contractual building disputes, section 77(2) qualifies that jurisdiction by stipulating that an application cannot be made to the tribunal unless the applicant “has complied with a process established by the commission to attempt to resolve the dispute”. 
  2. [15]
    Ms Kissun asserts that she has complied with section 77(2) and Modern do not have a view either way on the issue.
  3. [16]
    Ms Kissun does not have a letter from the Queensland Building and Construction Commission (“QBCC”) confirming her compliance with dispute resolution processes or stating that such processes are not available for her dispute.  She relies entirely on the transcript[6] from a telephone conversation between Ms Kissun and “Julie” from the QBCC on 20 July 2019 which notes the following was said by the QBCC:

I managed to speak with someone in relations to your complaint. Yeah unfortunately we don’t actually deal with that side of what the license actually requires you to do.  We don’t actually have that part of their license requirement.   What advise [sic] we can give you is you might be able to speak to QLD Fair Trading and see if they might be able to assist you or you may need to seek legal advise [sic].

We can only deal with it if it affects their building work.  If it was in relation to affect [sic] their building work and that is something we maybe able to assist you with.  But unfortunately not providing you with reports and photos that is not part of their licensing requirements under QBCC laws.

  1. [17]
    I accept the veracity of this transcript as it was released by the QBCC to Ms Kissun by a Right to Information Officer under cover of an email dated 18 May 2020.
  2. [18]
    The tribunal considered the nature and extent of the process established by the QBCC for the purposes of section 77(2) in Kime v Klepper[7] in which it was held that where there was no dispute resolution process established by the QBCC as contemplated by s 77(2) of the QBCC Act, it would not be a breach of s 77(2) of the QBCC Act for the applicants to have omitted to attempt to participate in a process established by the QBCC to resolve the dispute.[8]
  3. [19]
    In Allen & Anor v Contrast Constructions Pty Ltd (No 2)[9] it was also found that, in circumstances where the building contract was not “still alive” and the builder had attempted to comply with the QBCC’s dispute resolution process before applying to the tribunal, section 77(2) had been complied with.
  4. [20]
    Both Kime and Allen referred to the commission’s published fact sheets on their dispute resolution processes. 
  5. [21]
    The tribunal may inform itself in any way it considers appropriate.[10]  Prior to the hearing, I noted on the QBCC’s website a Fact Sheet “Complaints about your contract” and tendered this to the parties in the hearing as a tribunal exhibit.[11]  
  6. [22]
    That Fact Sheet refers to “contractual matters” that do not relate to the quality of the work performed and goes on to say that:

We have no power to:

  • require someone to pay or refund monies
  • make decisions to give orders about your contract
  • force either party to comply with any agreement.

Avoid wasting time by checking if our service is right for you before you apply.

If your building contract has been completed: We do not have any power to help with contract disputes, including payments.

  1. [23]
    It goes on to say that the persons who can apply to the QBCC for help with a contract dispute are property owners with a contract for a domestic building work “underway”.
  2. [24]
    Therefore, for the tribunal to have jurisdiction in this matter, it must be satisfied that there was no dispute resolution process provided by the QBCC to which Ms Kissun could submit her dispute with the respondents.  
  3. [25]
    On the basis of the QBCC Fact Sheet and the transcript of Ms Kissun’s telephone call with the QBCC on 20 July 2019 I find that the tribunal has jurisdiction to hear the dispute because:
    1. (a)
      the dispute resolution process contemplated by s 77(2) of the QBCC Act is the dispute resolution service referred to in the QBCC’s Fact Sheet titled “Complaints about your contract”; and
    2. (b)
      there is no dispute resolution process established by the QBCC as contemplated by s 77(2) of the QBCC Act, which deals with the current domestic building dispute where the contract has been completed and work is no longer “underway”.

Chronology

  1. [26]
    It is helpful to summarise a chronology of the parties’ dealings, particularly as there seem to be typographical errors in the preparation of some documents signed by the parties and, given that the parties disagree as a matter of fact as to when the contract was signed and when the roof works commenced:

Where the parties differ

  1. [27]
    According to the records of Modern:
    1. (a)
      Ms Kissun called them at 10.45am on 9 January 2017 and an appointment was made for a roof inspection the following day[12] and on this point:
      1. Modern says their appointment records are reliable because they are computer-generated at the point in time in which the inquiry call is received.  
      2. Ms Kissun took offence to the reference in that appointment record of her having “a slight accent – not indian tho :)”. She felt that this was an example of inappropriate profiling.  
      3. I do not disagree that the comment made is inappropriate, however its inclusion in evidence lends weight to the argument that Modern, if inclined to fabricate evidence, is unlikely to have done so in a way that included unnecessary and inappropriate comments about Ms Kissun. 
    2. (b)
      On 10 January 2017 Ms Kissun signed a Contract of Work[13] (“the contract”) for the replacement of her roof in respect of which:
      1. The contract price was $21,860;
      2. The balance price after deposit was to be paid via Certegy funding;
      3. The works were to be commenced “14-02-2017 or ASAP”; and
      4. A five-business-day cooling-off period applied during which Ms Kissun could terminate the contract without penalty.
    3. (c)
      The handwritten contract date being “10-01-2016” was a typographical error due to the recent rollover of the calendar year, and the contract was in fact signed on 10 January 2017.
    4. (d)
      At the same time, Ms Kissun also signed an agreement with Certegy to fund the purchase over fifty monthly instalments.[14] 
    5. (e)
      On or by 17 January 2017 the cooling-off period ended and Modern proceeded to order materials and book the job in.
    6. (f)
      On 15 February 2017 Modern undertook a check-inspection of the roof, which happens prior to works commencing to make sure the measurements and materials ordered are correct, and a report was prepared and signed by Mr Sellick in relation to that inspection.[15]
    7. (g)
      On 20 February 2017 roof works commenced and by the morning of 24 February 2017 they had reached practical completion.
  2. [28]
    According to Ms Kissun:
    1. (a)
      She did not have any dealings with Modern prior to February 2017.
    2. (b)
      On 4 and 5 February 2017 a severe storm occurred that caused damage to her roof.   Ms Kissun clearly recalled calling the respondent insisting that she required photographs and a report for insurance purposes and that the respondent then sent “3 or 4 men out” to inspect and tarp the damage that weekend.
    3. (c)
      On 6 February 2017 she called the respondent’s office to request photographs of the damage, speaking with Mr Sellick.
    4. (d)
      On 7 and 8 February 2017 the respondent’s contractors replaced the roof. 
    5. (e)
      She does not recall when the contract was signed but says it was in the week following her discussion with the respondent on 6 February 2017, which would be during the week commencing 13 February 2017 or perhaps the following week.  In the hearing I confirmed with Ms Kissun that, on her version of events, the contract was signed after the works were completed.  Ms Kissun insisted that the work was all done within a matter of days of her first making contact with Modern, for which she was very grateful, and believed it may well have been the case that the contract was signed after the works were completed. 
    6. (f)
      She has no recollection of signing the Certegy contract or any discussions around financing the roof by that method.  
      1. In the hearing she said that she “didn’t remember any discussion” about Certegy and that she “didn’t see” the Certegy contract when she signed the roof contract.  
      2. She said a number of times that “in her mind” a discussion about photographs and reports for insurance purposes “set her understanding” that insurance would pay for the roof.   
      3. When I put it to Ms Kissun that she had completed her bank details on the Certegy contract for direct debits, which would have required a discussion about why that was necessary if insurance was funding the payment, as well as a conscious action of looking up those details and writing them on the form, she said that didn’t remember doing it and later said that she “didn’t think it would ever go to Certegy”.
    7. (g)
      “For the next 26 days” Ms Kissun says she attempted to have the respondent provide photographs and a comprehensive report to her insurer, but the respondent was not co-operative. 

Agreed facts

  1. [29]
    The following facts are not disputed by the parties:
    1. (a)
      On 15 February 2017 following a roof inspection, the respondent signed their “Roofing & Guttering Inspection Report”[16] that concluded:

Roof sheets had been treated for rust and rust prevention (3 yrs). Some damage due to age, extensive storm damage where panels were.

Due to the extent of the damage, recommend complete replacement of roofing iron, solar panels, and sarking. Partial rebatten may also be needed. 

  1. (b)
    On 20 February 2017 Ms Kissun made her insurance claim and she received a letter of acknowledgement from her insurer.
  2. (c)
    On 21 February 2017 at 12.03pm Ms Kissun informed Modern that an insurance claim had been submitted and that she had told the insurer that:

there was a storm here on Bribie some 9-10 days ago and it brought down the solar panels which peeled off several roofing irons. Modern came to inspect and took the panels down.  Two panels are damaged.  They attended today and took the roofing irons off.  They will come back tomorrow to lay new roof on.

  1. (d)
    On 21 February 2021 at 6.45pm the insurer sent Ms Kissun an email to say that they were waiting on a report from Modern.
  2. (e)
    On 22 February 2017 at 7.44am Ms Kissun informed Modern by email[17] that “maintenance, fair wear and tear are general policy exclusions”, that the roof sheets removed from the roof had “surface rust” only and that “the case has to be made for storm damage not maintenance”.
  3. (f)
    On 22 February 2017 at 5.04pm Modern emailed their report (dated 15 February 2017) to Ms Kissun, who sent it on to the insurer at 7.04pm.
  4. (g)
    On 22 February 2017, after receiving their report, Ms Kissun emailed Modern to say “now we have to start thinking of a current quote for the job”.[18]
  5. (h)
    On 24 February 2017 the insurer asked Modern by email[19] to forward any photos of the damage they had and an itemised quote for the repairs noting that only storm damage was covered, and that maintenance, wear or tear would not be covered by the insurance policy. 
  6. (i)
    On 25 February 2017 (a Saturday) Modern supplied the insurer with an email[20] that included breakdown of their costs to restore the roof as well as their costs to replace the roof.  This email said:

I have prepared costings for a restoration of Sarita’s roof.  This cost includes some iron replacement, 100 mtrs of batten replacement and new sarking.

It also includes superfine metal primer, 2 coats of our Supa-Block coating system, BSA licensing fee, and installation.   Done in this manner, it is likely that her roof would have lasted at least another 8-12 years.  In my opinion this would have been possible before additional damage caused by storm. $10,611.90

It seems the storm had removed some sheets in 1 section, and had bent some other roof sheets where the solar panels were mounted. 

The cost of the total re-roof is $28,763.16 sold at $21,860.

I hope this helps, I am more than happy to provide all photos collected by our tradespeople as soon as I have access to them.

  1. (j)
    On 2 March 2017 Ms Kissun emailed[21] Modern to say that the insurer had agreed for them to “come out today and tomorrow to finish the job” and asked for a “detailed report of what the damage was to the roof and the solar panels”.  Ms Kissun asked that the report be prepared “after tomorrow when both the roof and solar system would be installed” and said “I know you have done more than you were required to do but this is the last hurdle”.
  2. (k)
    On 3 March 2017 Ms Kissun emailed[22] Modern purporting to tell them what to include in its more detailed report namely, telling them to write that:

Sarita Kissun asked Modern to re-roof her premise as a matter of urgency due to the electrical storm activity and heavy rain in her area on Tuesday and Wednesday nights the 28/2 and 1/3/2017.   We have now completed the job.

..please attach a comprehensive report as to what the damage was to the roof and solar panels.

you may also say if Modern had not attended to the job Modern could be liable for leaving the premise unsecured.  

No photographs are available as no-one had requested that photos be preserved for insurance purposes.

  1. (l)
    On 20 April 2017 Ms Kissun emailed Modern to say that she was having trouble paying for the work as the insurance claim was going to the ombudsman and that the insurer had informed Ms Kissun that Modern did not provide the report or photographs requested.
  2. (m)
    On 30 June 2017 Ms Kissun signed a new contract[23] with Certegy to fund a reduced sum of money payable to Modern.  This new contract was necessary as the finance arrangement could not commence as Ms Kissun had not paid the full deposit due and because Modern had applied a discount to the original contract price to assist Ms Kissun. 
  3. (n)
    On 3 July 2017 the parties signed a contract variation[24] document that referred to the contract dated “10/1/2016” and that reduced the contract price to a new price of $18,456.40 to be paid via Certegy.
  4. (o)
    Ms Kissun was, ultimately, not successful pursuing the insurer to pay out her claim.
  5. (p)
    On 14 June 2019 the insurer offered Ms Kissun a $2,500 hardship payment.  This did not settle her claim, which has been left open, but will be deducted from any future claim payment if applicable.
  6. (q)
    On 23 June 2019 Ms Kissun made a complaint to the Office of Fair Trading seeking that Modern be directed to provide a comprehensive report of the storm damage to the roof and photos to substantiate that report “so that I can get my claim through”, failing which she asked that the respondent compensate her by refunding all payments made via Certegy to date (approximately $7,000) and writing off the balance $11,000.   A formal complaint form was signed 24 June 2019.
  7. (r)
    The Office of Fair Trading was not able to assist Ms Kissun to resolve her dispute.
  8. (s)
    On 20 July 2019 Ms Kissun spoke with the QBCC who referred her to the Office of Fair Trading as the dispute fell outside of their purview.
  9. (t)
    On 17 August 2019 this application was filed.

Discussion of the evidence

  1. [30]
    The evidence given by Ms Kissun at the hearing included the following:
    1. (a)
      She clearly recalled that an electrical storm occurred on the weekend of 4th and 5th February 2017, she called Modern on the 6th and the men came out and did the work.  She was insistent the works were done that very week saying she was “grateful it was done quickly”. 
    2. (b)
      She clearly recalled her telephone call with Modern to ask for photographs and a report for insurance, that a crew attended immediately and put tarps on her roof and that she called the office again the following day, during which call she repeated her request for a report for insurance purposes and photographs.
    3. (c)
      She had no recollection of signing the contract and said it must have happened after the roof works took place.  When I put it to her that this would have meant the works were done before the price was agreed she say that there was no verbal agreement or discussion about:
      1. price; or
      2. when works would start.
    4. (d)
      She says she “didn’t see” the reference to Certegy on the contract when she signed it. She had no recollection of discussing Certegy funding or interest free finance and could not recall obtaining her bank details to write on the direct debit form. 
  2. [31]
    Mr McMahon gave contrary evidence that Modern do not have emergency crews who attend properties on short notice to apply tarps and similar.  It is simply not a service they provide.
  3. [32]
    I tendered Exhibit 19 as a tribunal exhibit, being Australian Bureau of Meteorology records of daily rainfall in the suburb in which Ms Kissun’s home is located for 2017.   There is no record of any rainfall between 1 and 8 February 2017 when Ms Kissun says a storm event occurred that caused damage to her roof.    Ms Kissun was not able to explain this and remained adamant that a storm occurred on the weekend of 4 and 5 February 2017.
  4. [33]
    When questioned on her reference to “electrical storm activity and heavy rain in her area on Tuesday and Wednesday nights the 28/2 and 1/3/2017” in her email to Modern of 3 March 2017, Ms Kissun said those dates weren’t a reference to a storm but to what dates to send the report to the insurer.  This explanation seems a nonsense, as the reference in the email is clearly to storm activity occurring on certain dates, which do not correspond with Ms Kissun’s other evidence.
  5. [34]
    I find Ms Kissun’s evidence to be, on the whole, unreliable because:
    1. (a)
      she could recall, clearly, evidence of events and conversations that favoured her case but could not recall or answer questions on evidence that did not favour her case, even when that evidence was in the form of emails she had authored or documents she had signed; and   
    2. (b)
      the evidence does not support Ms Kissun’s version of events with respect to several factors upon which she relies including:
      1. the timing of the storm that damaged her roof, and whether in fact, there was one that occurred close in time to when she had dealings with Modern;
      2. the date the contract was signed; and
      3. when the issue of insurance was first mentioned to Modern.
  6. [35]
    In contrast, Mr McMahon gave evidence in the hearing that:
    1. (a)
      Modern does not commence works or take any steps to progress works until a contract is signed and the relevant cooling-off period has expired.   Therefore, the timeline put to the tribunal by Ms Kissun is completely outside of Modern’s usual processes, which they say they did not depart from.
    2. (b)
      The process for signing a Certegy agreement includes a telephone call between the home-owner and Certegy to set up the account and verify identity, because Modern cannot do this on the customer’s behalf.  He therefore says it is not possible that Ms Kissun entered into the first Certegy agreement without knowing it. 
    3. (c)
      Five to six weeks is a standard (and if not standard, then a reasonably fast) turnaround time between contract signing and the commencement of works.   Whilst he did not recall what the market situation was at the time, presently lead times are much longer (pushing out to ten weeks).  He was adamant however, that the timeline put to the tribunal by Ms Kissun is a practical impossibility and I accept that evidence.
    4. (d)
      Before and after photographs are not necessarily taken while undertaking works, or, at least, they weren’t in 2017.  Having checked “all records and all paperwork” as well as Google-drive and hard-drives he confirmed no photographs of the roof are available and are unlikely to have been taken.
    5. (e)
      The process for quoting insurance work is quite different to the process followed with Ms Kissun because Modern will not proceed to a contract in that case, but, rather, will provide a quote to the insurer and wait for authorisation to proceed before a contract is then entered into.
    6. (f)
      Modern went as far as they were prepared to in making submissions to the insurer on behalf of Ms Kissun, but were not of the view that the roof needed replacing due to a storm event so they were not prepared to make those statements to the insurer, and further, they did not have photographs of storm damage to the roof (or any photographs at all). 
  7. [36]
    I found the evidence that Mr McMahon gave to be open and honest, albeit relying on records of this organisation and his own knowledge of its processes as he did not interact with Ms Kissun at all during the relevant period of her engagement with Modern and the works it undertook for her. 
  8. [37]
    I prefer the evidence of the respondent with respect to the signing of the contract and find that the contract was signed on 10 January 2017 because I accept the appointment record evidence of Modern as accurate and I find it highly improbable that Modern:
    1. (a)
      replaced an entire roof without a signed contract or any assurance of payment; and
    2. (b)
      was practically capable of undertaking an entire roof replacement over a four-day period that included the first telephone call to Modern, site inspection, commencement and completion of works.
  9. [38]
    Based upon evidence given by the parties and the documentary evidence tendered and referred to throughout these reasons, I make the following findings of fact: 
    1. (a)
      Ms Kissun’s roof was both aged and had a measure of historical storm damage and, as a consequence, it needed repair or replacement;
    2. (b)
      On 9 January 2017 Ms Kissun contacted Modern by telephone to quote on the roof;
    3. (c)
      On 10 January 2017 Modern inspected the roof, recommended replacement rather than repair, produced a contract for the roof works, and a contract to fund the works based on interest-free finance, which the parties entered into;
    4. (d)
      The cooling off period expired without Ms Kissun taking any steps to terminate the contract; 
    5. (e)
      The works were to commence around 14 February 2017 which was the standard length of time needed once contracts were signed to allow the cooling-off period to pass, to order materials and book contractors to undertake the work;
    6. (f)
      The roof was inspected again on 15 February 2017 as was Modern’s practice prior to sending contractors out for the roof works;
    7. (g)
      After the roof inspection, during which a report was completed and the historical storm damage noted, Ms Kissun contacted her insurer to claim the costs of the roof replacement under her home insurance policy and this was the first occasion upon which Ms Kissun mentioned to Modern funding her roof works by way of an insurance claim;
    8. (h)
      The roof was replaced between 20 and 24 February 2017; and
    9. (i)
      From 21 February 2017, Modern co-operated to the extent they were prepared to do so with the requests of the insurer to advance Ms Kissun’s claim, including providing the check inspection report on 21 February 2017, and by providing further clarification by email on 24 February 2017.  

Discussion of the law

The QBBC Act

  1. [39]
    Having perused the contract, I am satisfied that it meets the requirements of Schedule 1B Part 2 of the QBCC Act.

Common law and implied terms

  1. [40]
    Statutory requirements aside, a legally enforceable agreement (contract) requires an offer, acceptance of that offer, consideration for the promises made and an intention to create legal relations.[25]  The terms must be certain, and the parties must have capacity to contract.
  2. [41]
    I find that all of these elements were met in the current circumstances, and neither party argued that they were not.
  3. [42]
    The contract contains no terms (in fact no mention at all) in relation to:
    1. (a)
      funding the contract price by insurance proceeds;
    2. (b)
      the provision of photographs of the roof; or
    3. (c)
      the provision of a report for insurance purposes.
  4. [43]
    If the terms of a contract are not clear on their face, the question is whether terms can be implied to make the agreement a contract.
  5. [44]
    In the absence of a previous course of dealing between the parties, and in the absence of a term being expressly included in a contract, Ms Kissun must establish that the requirement for a report and photographs was a term of the contract agreed to by Modern prior to or at the same time as the contract was made so that the parties can be said to have agreed to the terms.
  6. [45]
    In Hawkins v Clayton[26] Justice Deane said:

The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case.

  1. [46]
    I am not satisfied that the requirement for photographs, a report or that insurance would fund the purchase price are or should be implied into the contract because:
    1. (a)
      such an implication is not necessary for the reasonable or effective operation of the contract; and
    2. (b)
      as a matter of fact, the evidence supports a finding that the idea of claiming the contract price on home-insurance did not arise until well after the contract was signed and works had commenced.
  2. [47]
    Whilst Modern did provide its check inspection report to the insurer, and its subsequent email that went into further detail, there is no contractual or legal basis upon which the tribunal can or should order them to do more.

Should Ms Kissun be given relief on account of hardship or as a matter of fairness?

  1. [48]
    There seems to be little question that Ms Kissun is experiencing financial and personal hardship.  When the contract was entered into, she was undertaking chemotherapy and was in receipt of a pension having previously been a small business owner.  She was supported in the hearing by Ms Brookes, who has undertaken it upon herself to support Ms Kissun by providing Ms Kissun with meals and financial support to enable Ms Kissun to support herself and her beloved pet dog as Ms Kissun’s income does not support her needs.  That Ms Kissun’s payments to Certegy over the period of her contract with them have not been easily affordable is undisputed, however, the debt is now down to $2,000 or so remaining from the original balance (as varied).
  2. [49]
    As explained in the hearing, subsequent hardship or changes in circumstances are not always, or even often, relevant or persuasive to the tribunal’s decision on a matter of contract.  In fact, it would be unfair to the parties, in my view, to disregard the terms of the contract they entered into, and the binding commitments, including financial commitments, they freely and willingly made to each other with the full intention of being legally bound to keep those promises in the absence of any vitiating factors. 
  3. [50]
    In short, there are no hardship grounds upon Ms Kissun is able to rely in seeking the orders that she does.

Decision

  1. [51]
    For all of the above reasons, the application is dismissed.

Footnotes

[1] QBCC Act, Schedule 2 (Definition of “building dispute”).

[2] Ibid, Schedule 2 (Definition of “domestic building dispute”).

[3] Ibid, Schedule 2 (“Definition of “reviewable domestic work”).

[4] Email dated 18 July 2020 that references “the leak in the roof which has peeled the paint inside the bathroom”.

[5] Natalie Cooper v Daniel Murray McGaveston [2019] QCAT 244.

[6] Marked “Appendix 5” in the applicant’s submissions 20 November 2020.

[7] [2020] QCAT 207.

[8] Ibid at [30].

[9] [2021] QCATA 43 at [29].

[10] Section 23(3)(c) Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[11] Exhibit 20 in the proceedings.

[12] Exhibit 11 Appointment Record tendered by the respondent.

[13] Exhibit 1, Building Contract.

[14] Exhibit 3, the Certegy funding agreement 22330529 dated 10 January 2017.

[15] Exhibit 14, Inspection report dated 15 February 2017.

[16] Exhibit 14.

[17] Exhibit 13.

[18] Exhibit 5.

[19] Exhibit 15.

[20] Exhibit 18.

[21] Exhibit 6.

[22] Exhibit 7.

[23] Exhibit 10.

[24] Exhibit 9.

[25] Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546.

[26] (1988) 164 CLR 539 at 573.

Close

Editorial Notes

  • Published Case Name:

    Kissun v Modern Group (Qld) Pty Ltd

  • Shortened Case Name:

    Kissun v Modern Group (Qld) Pty Ltd

  • MNC:

    [2021] QCAT 379

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    01 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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