George v Paleoudis[2023] QCAT 273

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   These are the second proceedings in the Tribunal in which Stephen George (applicant) has sought a judgement against Angelo Paleoudis (respondent) for an alleged debt of approximately $10,143.19 relating to vacuuming and re-excavation works by Eagle Alliance Earthmoving on the common boundary of the land owned the respondent and his neighbour, Gavin Appleby.
2. [2]
   In these proceedings apart from whether a debt is owed by the respondent to the applicant, additional issues to be considered relate to whether res judicata and issue estoppel applies in these circumstances because of a judgement in earlier proceedings between the same parties involving the same subject matter.

Factual Background.

3. [3]
   In about November 2018 the respondent and his neighbour, Gavin Appleby, decided to construct a boundary fence between their adjoining properties at Mansfield, Brisbane in the State of Queensland.
4. [4]
   On 20 November 2018 the applicant emailed to the respondent a quote for $37,700.00 to construct a Besser Block boundary fence of 30 m in length.
5. [5]
   On 22 November 2018 the respondent made amendments to the applicant’s quotation which was then accepted by those parties. The contract that came into effect on that date included the following terms;

   1. (a)
      the applicant was to construct a Besser block wall 30 m by 1.1 m along the common boundary of the adjoining properties of the respondent and his neighbour;
   2. (b)
      The applicant was to supply excavation, all materials, skip bin and labour;
   3. (c)
      the costs of the works would be $33,930.00 to be paid as follows;

      1. a deposit of 50% totalling $16,965.00;
      2. a further payment of $10,179.00 when the engineer approves certification and before the foundation is poured;
      3. final payment of 20% ($6,786.00) when the job was completed.
6. [6]
   The applicant claims that between 4 March 2019 and 17 April 2019 the applicant carried out the works in accordance with the scope of works.
7. [7]
   However, during construction which included the excavation of a trench by Eagle Alliance Earthmoving Pty Ltd for the footings of the Besser Block wall, heavy rain occurred causing the excavated trench to fill with water and the walls of the trench to collapse. The applicant says at the direction of the respondent (which is denied by the respondent) he called Eagle Alliance Earthmoving and arranged for them to vacuum the water out of the trench and to re-excavate the trench between 21 and 25 March 2019.
8. [8]
   The applicant says that he constructed the wall on about 16 and 17 April 2019.
9. [9]
   The applicant also says that the respondent made the payments due under the contract totalling $33,930.00.
10. [10]
    However, after construction of the Besser Block wall was completed, Eagle Alliance Earthmoving sent tax invoices for vacuuming and re-excavating the trench. The invoices claimed $9,997.35 and were addressed to the applicant.
11. [11]
    The applicant requested the respondent to pay the Eagle Alliance Earthmoving invoices. The respondent refused to pay those invoices.
12. [12]
    Subsequently, Eagle Alliance Earthmoving brought proceedings in the Tribunal to recover its invoiced costs from the applicant for vacuuming and re-excavating the trench.
13. [13]
    On 13 August 2020 the Tribunal ordered the applicant to pay Eagle Alliance Earthmoving $10,143.19 which included an interest component.
14. [14]
    The applicant informed the respondent of the judgement obtained by Eagle Alliance Earthmoving and requested the respondent to pay the judgement amount. The respondent again refused.
15. [15]
    On 30 September 2020 the applicant filed in the Tribunal at Wynnum an Application for minor civil dispute seeking to recover $10,143.19 from the respondent together with additional interest, filing fees and bailiff serving fees (the first Tribunal proceedings).
16. [16]
    On 28 January 2021 those proceedings were dismissed by the Tribunal on the basis it did not have jurisdiction. There is no evidence of what occurred during proceedings or any transcript in evidence in these proceedings.

17. [17]
    On 11 May 2021 the applicant filed in the Tribunal at Wynnum an Application for domestic building dispute claiming $9,997.35 together with an interest component of $406.73. The total claim was $10,403.73. (the second Tribunal proceedings). The Application was in effect seeking the recovery of the $10,143.19 which the applicant had been ordered to pay Eagle Alliance Earthmoving as a result the judgement delivered by the Tribunal at Wynnum on 13 August 2020.
18. [18]
    On 29 June 2021 the respondent filed his Response and counter application. The respondent denied liability for the Eagle Alliance Earthmoving invoice to vacuum and re-excavate the trench as there was no contractual obligation to pay that amount. The respondent also states that it was the applicant who made the request of Eagle Alliance Earthmoving to undertake that additional work. The respondent also refers to the first Tribunal proceedings in 2020 and states;

On the 28 January 2021 at the hearing of the earlier Court proceedings, the Application was dismissed due to lack of jurisdiction.

The respondent counterclaimed $3500 for one half of the cost of block work and a further amount of $350.00 being half the cost of delivery of gravel and soil.

19. [19]
    The respondent also alleges in the counterclaim that in May 2019 he requested the applicant to complete the works but was told the applicant was unable to complete those works and for the respondent to retain a different contractor to complete the blockwork wall.
20. [20]
    In the applicants Response filed in the Tribunal on 6 October 2021 the applicant admits that he completed 24 m of the Besser Block wall when he informed the respondent he was unable to complete the final 6 m of the wall as the applicant had injured his knee and was booked for an operation on his knee. The applicant then states in his Response:

Paragraph 5 of the Application incorrectly stated the Applicant had received all payments referred to in paragraph 3 of the application. The Respondent did not make the final payment referred to in paragraph 3 of the Application because the Applicant was unable to complete construction of the final 6 m of the Wall.

21. [21]
    Both parties have filed statements of evidence in these proceedings in support of the allegations raised in these proceedings.

The First Tribunal Proceedings were Dismissed for Lack of Jurisdiction.

22. [22]
    The first Tribunal proceedings had the same parties, subject matter (save and except for minor additional interest and other claims) and cause of action as is found in the second Tribunal proceedings. In terms of those elements the second the Tribunal proceedings is effectively a “re-run” of claims in the first Tribunal proceedings
23. [23]
    The Tribunal on 28 January 2021 dismissed the applicant’s application in the first Tribunal proceedings due to lack of jurisdiction. The Tribunal’s reasons for reaching that conclusion are not available.
24. [24]
    The respondent in these second Tribunal proceedings relies on the fact that in the first Tribunal proceeding the applicant bought an application for a minor civil dispute (the first Tribunal proceedings) and at the hearing the application was dismissed due to lack of jurisdiction. Presumably, the respondent relies upon the principles of res judicata, issue estoppel or the extended principle in Henderson v Henderson.^[1]
25. [25]
    The different basis for res judicata and issue estoppel was discussed in Blair v Curran by Dixon J in these terms:^[2]

in the first the very right or cause of action claimed or put in suit in the former proceedings passed into judgement, so that it merged and has no longer an independent existence, while in the second, for the purposes of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgement, decree or order.

26. [26]
    Later in Blair v Curran the following was stated by Dixon J:^[3]

A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

27. [27]
    The extended principle stated in Henderson v Henderson is in these terms:^[4]

where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in context, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounces judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

28. [28]
    The concern with the second Tribunal proceeding is that if the applicant is successful in those proceedings that could produce a result different to the Tribunal’s determination in the first Tribunal proceedings.
29. [29]
    The parties, the subject matter of dispute and cause of action in both of these Tribunal proceedings are identical, except for amounts of interest and charges which slightly altered the quantum of the claim. Otherwise, to the extent discussed so far, they are in effect the same proceedings except that the earlier proceeding was brought as a Minor Civil Dispute and the second proceedings as a Building Dispute.
30. [30]
    The evidence is that the application brought in the first Tribunal proceedings was for a minor civil dispute. Those proceedings were bought in an attempt to attract the Tribunal’s jurisdiction in respect of minor civil disputes. The Tribunal’s jurisdiction to hear and determine a minor civil dispute is conferred by s. 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). However, a claim to recover a debt or liquidated demand of money of up to the prescribed amount is not a minor civil dispute for the purposes of the Tribunal’s jurisdiction in the following circumstances:^[5]

if an enabling Act confers jurisdiction on the Tribunal to deal with a claim (however called) within the meaning of paragraph 1 (a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.

31. [31]
    A recent example of this jurisdictional issue is in Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd where Member Lember determined that an Application for a minor civil dispute (MCD)was not within the MCD jurisdiction as the claim could be characterised as a “building dispute” under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).^[6] It was held that the enabling Act, the QBCC Act, vested the Tribunal with jurisdiction in a “building dispute” and consequently the MCD jurisdiction was effectively ousted.^[7]
32. [32]
    In the first Tribunal proceedings and in the second Tribunal proceedings the cause of action relates on a contract for building work on domestic land relating to the construction of a Besser Block wall. The subject of both those proceedings comes within the jurisdiction for a “building dispute” as provided for in the QBCC Act.^[8]In the first Tribunal proceedings the applicant brought his claim in the MCD jurisdiction rather than the “building disputes” jurisdiction provided by the QBCC Act.
33. [33]
    In Commissioner of State Revenue v Harrison relating to estoppel by judgement in the course of which Judicial Member McGill stated;^[9]

the whole point of the issue estoppel is that, once the parties have litigated a particular issue and it has been determined by judicial proceedings, and, subject to only very limited exceptions none of which were relied on by the appellant, the issue cannot be litigated again in later proceedings. It is not confined to an issue having been decided on a particular basis, and the same issue, arising on the same basis, having to be decided also in the later proceedings. Once it is identified as the same issue, it is not to be litigated in the later proceedings at all.

34. [34]
    In the first Tribunal proceedings it appears that the parties claims did not proceed to a hearing because of a lack of jurisdiction. There is no evidence of any determination by the Tribunal of the merits of the applicants claims in those earlier proceedings. There does not appear to be any finding of fact or of law in relation to the claims brought in the earlier proceeding. The matter did not proceed because of a lack of jurisdiction. The parties do not appear to have litigated any particular issue. There has been no determination by the earlier judicial proceedings relating to the claims, facts or the law other than a lack of jurisdiction of the Tribunal.
35. [35]
    It is the case, from the above discussion, that this is not a case of res judicata. Nor is it a case of issue estoppel as there has been no determination of any of the relevant facts or law. While arguably the extended principle in Henderson’s case could potentially have application as the applicant was required to bring forward in the first Tribunal proceedings his whole case (albeit a “building dispute” in the jurisdiction conferred by the QBCC Act) there does not appear to be any evidence of a hearing in those proceedings. Courts have urged caution in the application to cases of issue estoppel (Port of Melbourne Authority v Anshun Pty Ltd).^[10]
36. [36]
    The Tribunal finds that the applicant is not prevented from commencing and continuing through to a hearing the second Tribunal proceedings. The first Tribunal proceedings do not raise any plea of res judicata, issue estoppel or the application of the extended principle in Henderson’s case. The applicant can proceed with the second Tribunal proceedings.

The applicants claim for $9,997.00 and interest.

37. [37]
    The applicant’s claim is brought on two grounds:

    1. (a)
       on a contract made with the respondent made on 22 November 2018.
    2. (b)
       an alternative claim is based on “the direction of the respondent” for the applicant to engage the services of Eagle Alliance Earthmoving Pty Ltd to vacuum water out of the trench and to re-dig the trench.
38. [38]
    The respondent denies liability on the basis that there was no contractual obligation for him to pay the invoices to Eagle Alliance Earthmoving. The respondent also denies giving any direction to the applicant
39. [39]
    The outcome of the applicant’s case based on the contract made 22 November 2018 depends upon the terms of that contract.
40. [40]
    The terms of the contract include that the applicant was responsible to “supply excavation, all materials, skip bin and labour”.^[11] The work undertaken by Eagle Alliance Earthmoving in vacuuming water from the trench and to re-dig the trench was to ensure that there was an excavation available for the footings of the Besser Block wall. The terms of the contract required that the applicant “supply excavation”. For the applicant to comply with the contract he had to ensure that there was an excavation available for the foundations of the wall. The fact that there was heavy rain over a number of days causing the excavated trench to fill with water and the sides of the trench to collapse did not alter the terms of the contract. There was no term of the contract providing for changes due to “wet weather” nor was there any clause in the contract providing for a variation if an excavated trench were to suffer damage such as by heavy rainfall. There was no term in the contract to alter the responsibility of the applicant to “supply excavation” which is a broad description and includes the work done by Eagle Alliance Earthmoving in the disputed invoices. The work described in the disputed invoices was to enable the applicant to supply the excavation as required by the terms of his contract. The contract placed the responsibility for excavation on the applicant, not the respondent.
41. [41]
    Accordingly, for these reasons, the Tribunal finds that the additional costs incurred by Eagle Alliance Earthmoving vacuuming and re-digging the trench to provide the “excavation” is the responsibility of the applicant under the terms of the contract. The Tribunal rejects the applicant’s claim based upon the contract of 22 November 2018 that the respondent is liable to pay him for those costs. The Tribunal accepts that the respondent was not liable for the invoices from Eagle Alliance Earthmoving as claimed by the applicant as there was no contractual obligation on the respondent to pay those for those invoices.
42. [42]
    The Tribunal dismisses the applicants claim for $9,977.00 plus interest in Annexure “A” to the Application insofar as that claim is based upon the terms of the contract.
43. [43]
    The alternative claim by the applicant is that the respondent is liable to pay the invoices because of the alleged direction by the respondent to the applicant to obtain the services of Eagle Alliance Earthmoving to vacuum and re-dig the trench.
44. [44]
    In the evidence provided by Stephen George, he says that after heavy rain on 16 and 17 March 2019 causing the trench to fill with water and the walls of the trench to collapse he could not continue with the construction of the wall until the trench was cleared. He says at “the direction” of the respondent he called Eagle Alliance Earthmoving to arrange to vacuum water out of the trench and to re-dig the trench. He says that he was told by Eagle Alliance Earthmoving the respondent signed off on the invoices “and that I would not be responsible for the invoices”. He also says that on 20 May 2029 he was present with the respondent when Eagle Alliance Earthmoving emailed their tax invoices to the respondent.
45. [45]
    The evidence of the respondent is that there was heavy rain on 15 March 2019 causing the landslide in the trench already excavated. He says notwithstanding the threat of rain, the applicant failed to take measures to secure the land after excavation on 14 March 2019. He says that he and his neighbour at no time agreed to Eagle Alliance Earthmoving undertaking the work in the invoices nor did they receive a call from that contractor. He agrees that the applicant was present when tax invoices from the contractor were received by post. He says he asked the applicant “what was this about”. He told the applicant that the invoices had nothing to do with him. The applicant said that the respondent and his neighbour should each pay half the invoice. The respondents says that they were not paying the invoices as they had at no time authorised this work.
46. [46]
    In the applicant’s Application the “Statement of Particulars of Claim” he alleges that:

    1. (a)
       Eagle Alliance Earthmoving emailed their tax invoices to the applicant on 20 May 2019;
    2. (b)
       Eagle Alliance Earthmoving posted the tax invoices to the respondent in about May 2019.
47. [47]
    A bundle of tax invoices from Eagle Alliance Earthmoving were sent to the applicant at his residential address seeking payment and providing for the applicant to pay the invoiced amounts to a bank account by an internet banking transfer.^[12]
48. [48]
    The applicant also says that Eagle Alliance Earthmoving took proceedings in the Tribunal at Wynnum against the applicant by filing an Application for Minor Civil Dispute – Minor Debt for the unpaid tax invoices. On 13 August 2020 the Tribunal at Wynnum made an order that the applicant pay Eagle Alliance Earthmoving the sum of $10,143.19 being the claim in the tax invoices.
49. [49]
    Although tax invoices were sent to both the applicant and to the respondent, it is clear from the above facts that Eagle Alliance Earthmoving considered that the primary debtor was the applicant. Whatever the applicant’s defence was to the Tribunal proceedings at Wynnum, he failed to establish that he was not responsible for the payment of the tax invoices. Eagle Alliance Earthmoving apparently, from these facts, did not consider the respondent was liable.
50. [50]
    The evidence of the applicant is that “at the direction of the respondent” he called Eagle Alliance Earthmoving to rectify the rain damaged excavated trench. The applicant does not explain the circumstances in which this “direction” was said to be given by the applicant. The evidence does not explain whether there was a meeting between those parties or whether they had a discussion by telephone or by email or by what others circumstances the direction was said to have been made. The applicant’s statement says a “direction” was made without providing any details of the respondent’s direction. The circumstances of, or the way in which or terms in which the direction was allegedly given by the respondent to the applicant have not been provided in the evidence by the applicant.
51. [51]
    The Tribunal also notes that the respondent denies that he gave the direction and denies any financial responsibility. The respondent says that there was no contractual arrangement for his (and presumably his neighbour) being responsible for the tax invoices.
52. [52]
    In the circumstances by the absence of any adequate or sufficient evidence relating to how the “direction” was made, the Tribunal is not satisfied and does not accept that the respondent gave the alleged direction to the applicant as claimed in these proceedings. The Tribunal accepts the evidence of the respondent that no such direction was given and there was no contractual arrangements in relation to liability for the tax invoices. The Tribunal rejects the evidence of the applicant that the respondent was responsible for these tax invoices.
53. [53]
    The Tribunal having found that there was no contractual obligation on the respondent to pay for those invoices and that the respondent did not give the alleged direction to the applicant to engage the services of Eagle Alliance Earthmoving for the vacuuming and re-digging of the trench, the applicant’s claim in the Application for domestic building dispute filed on 11 May 2021 is dismissed.

The Respondent’s Counter Claim for Damages.

54. [54]
    The respondent claims by way of damages;

    1. (a)
       $3,500.00 being one half the cost of the block work;
    2. (b)
       $350.00 being one half of the cost of delivery of gravel and soil.
55. [55]
    In the “Particulars” provided by the respondent for this claim he says that in May 2019 he requested the applicant to complete the works but the applicant said he was unable to complete the work and for the respondent to retain a contractor to complete the block work. The respondent alleges the applicant repudiated the contract and that another contractor was contracted to undertake the block work. However, there is no particulars of the cost of the block work nor of the cost of delivery of gravel and soil relevant to this claim.
56. [56]
    In the applicant’s Response to the respondent’s counter claim he says that he completed 24 m of the block wall but had ordered sufficient blocks and steel to complete 30 m of the wall. He says he informed the respondent he was unable to complete the final 6 m of blockwork as he had injured his knee and was booked for an operation on that knee.
57. [57]
    In his evidence that the respondent says that:^[13]

steel mesh was delivered in or about April 2019 followed shortly by the delivery of Besser Blocks.

58. [58]
    The respondent does not provide any other evidence about the delivery of Besser Blocks other than that delivery in April 2019. The respondent does state that;^[14]

As a result of the applicant’s failure to carry out the works in a proper workmanlike manner further costs have been incurred.

59. [59]
    The respondent does not give any evidence or details as to what were the “further costs”. Neither does the respondent give any evidence as to any costs related to the delivery of Besser Blocks or the relevant freight charges. If the claim relates to the labour to construct the block wall, then the evidence is that the applicant completed 24 m of the wall out of the total length of 30 m. Approximately 6 m (20% of the length of the wall) had to be completed by another contractor. There is no evidence why half the cost of the wall should be claimed by the respondent from the applicant.
60. [60]
    There is no explanation in the evidence as to why there is a claim against the applicant for half the costs of those of Besser Blocks and the delivery costs. In these circumstances the Tribunal is not satisfied that the respondent has incurred the costs of $3500 and $350 for delivery as alleged. Even if the applicant’s failure to construct the remaining 6 m of the wall is a breach of contract and even if the respondent is entitled to damage, there is no proof of those damages. The Tribunal is not satisfied on the evidence that the respondent has established that any damage has been suffered as result of the failure of the applicant to complete the wall pursuant to the contract.
61. [61]
    The Tribunal rejects the respondents claim for damages. The Tribunal dismisses the respondent’s counterclaim filed on 28 June 2021 for damages of $3,850.00.

Orders

62. [62]
    The Tribunal orders that:

    1. (i)
       The Application for domestic building disputes – Queensland Building and Construction Commission Act 1991 filed by the Applicant on 11 May 2021 is dismissed.
    2. (ii)
       The Response and/or counter-application filed by the respondent on 28 June 2021 is dismissed.