Kiril Kozulin t/a K & V Plastering v Victoria Gala
[2023] QCAT 376
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- Unreported Judgment
- Kiril Kozulin t/a K & V Plastering v Victoria Gala[2023] QCAT 376
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Kiril Kozulin t/a K & V Plastering v Victoria Gala[2023] QCAT 376
Kiril Kozulin t/a K & V Plastering v Victoria Gala[2023] QCAT 376
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Kiril Kozulin t/a K & V Plastering v Victoria Gala [2023] QCAT 376 |
PARTIES: | kiril kozulin t/a k & V plastering (applicant) v victoria gala (respondent) |
APPLICATION NO/S: | BDL034-21 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 20 September 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: | The Tribunal directs Victoria Gala pay Kiril Kozulin t/a K & V Plastering the sum of $5,000.00 by 4:00 pm on 20 October 2023. |
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where a builder was engaged to perform building work – where there was no contract in writing signed by the parties in breach of s 13(2) of Sch 1B of the Queensland Building and Construction Commission Act 1991 (Qld) IMPLIED AND CONSTRUCTIVE CONTRACTS – NATURE AND GROUNDS OF OBLIGATION – SERVICES RENDERED – WORK AND LABOUR IN GENERAL – QUANTUM MERUIT – where the builder is entitled to claim under quantum meruit – where work defective – where the owner was entitled to recover for damage caused by the builder for defective work. Queensland Building and Construction Commission Act 1991 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Andrew Shelton & Co Pty Ltd v Alpha Healthcare Ltd (2002) 5 VR 577 Balfour Beatty Power Construction Australia Pty Ltd v Kidston Goldmines Ltd [1989] 2 Qd R 105 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221 Zoja Pty Ltd v Frost Constructions Pty Ltd [2014] QCAT 214 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Background
- [1]The Applicant builder, Kiril Kozulin, a plasterer, lived on Russell Island. The homeowner (Victoria Gala) was an owner builder and licensed to build a 2-bedroom house and 28 m2 deck on Russell Island. No written contract was entered into by the parties.
- [2]The builder provided a quote for plastering work on 20 January 2020. The quote for $9,779.00 included all transport and delivery costs.
- [3]The homeowner paid for the work in two instalments, $5,000.00 on 7 March 2020 and $4,779.00 on 24 April 2020. She had not inspected the work because of Covid restrictions in place at the time. She paid an additional amount of $2,960.70 on 1 May 2020.
- [4]A dispute has arisen not in relation to the initial quote which was for $9,779.00 nor for additional variations of $2,960.70 but for a further claim of $11,794.30 for additional work completed by the builder.
- [5]The work was completed on 30 April 2020. The progress of the works was interfered with by the Covid restrictions.
- [6]The dispute between the parties does not involve monies already paid, although there is a cross claim for defective work. The dispute arises from seven invoices, all dated 30 April 2020, amounting in total to $11,794.30 forwarded to the homeowner on about that date. These purportedly related to extra work completed by the builder and his employees and/or subcontractors.
Applicant’s case
- [7]Following upon the initial agreement, the homeowner requested the builder to carry out extra work which included picking up cavity sliders and delivering them to the site, installing them, packing out bathroom and ensuite wall with metal batons to cover pipe work, form metal stud wall and line, to accommodate hot water system and electrical box. It was agreed, in relation to this work, that the builder would be paid $50 per hour plus materials plus GST. The builder submitted an invoice on 17 April 2020 for this work for $2,960.70 which the homeowner paid.
- [8]It is disputed that the homeowner agreed to pay $50 per hour for extra work.
- [9]The extra work is detailed in the builder’s submissions as follows:
- 7.Change of scope of work. Victoria no longer wanted
- skirting could we fill in the recess edge
- Architrave and jambs around the door & windows-could we square set all door openings & windows
- 8.Kitchen/lounge ceiling is 3600 high. Victoria asked us if we could paint ceiling, cornice and approx 1000 down the wall, as she did not have the scaffolding to climb when doing the painting. And she would not have to climb up and down to paint. We already had scaffolding on site while plastering
- 9.We still had patio ceiling to plaster but no flooring was down [Victoria could not get Carpenter] Victoria asked us to do flooring [decking] and install timber trim junction wall & ceiling. Note plaster to ceiling was included in the original price no corners to patio. There was no extra charges for the patio ceiling.
- [10]The seven invoices sent to the homeowner after work was completed and the builder had left the site all bear the same date (30 April 2020). They detail the work as follows:
Invoice No |
| Work | Hours on barge |
9787 | $612.90 | Dulux 15 litre ceiling paint and under coat and timber trim (invoice references provided) |
|
9789 | $3,515.00 | Labour 50 hours, liquid nails barge men and barge fee Extra labour and materials work as required | 2 men x 2 hrs x 2 barge 2 x barge fee |
9790 | $1,606.50 | Labour 23 hours barge fee Extra labour work as required | 2 men x 2 hrs x 1 barge 1 x barge fee |
9791 | $209.00 | Labour and materials work as required fill in recess edges |
|
9792 | $4,502.85 | Labour & materials window & door reveals |
|
9793 | $253.00 | Labour 4 hours materials Extra labour and materials work as required |
|
9794 | $1,095.05 | Labour 13 hours barge Liquid nails and screws Extra labour and materials work as required | 2 men x 2 hrs x 1 barge 1 x barge fee |
| $11,794.30 |
|
|
Respondent’s case
- [11]The homeowner states that she advised the builder that additional jobs that were to be done by another builder who had quoted her $3,550 plus GST. The builder suggested to her that he could do the job for much less such as the window reveals using EZY reveals rather than wood. Which he said would be quick and economical way of finishing the window reveals. The homeowner said she asked for a fixed quote but never received a quote. She denies there was any discussion of an hourly rate at that time.
- [12]The homeowner states that the reveals to the windows and doors were never done at all. Plastering was done to the reveals only. This is supported by statutory declaration from a Mr Ashton of Macleod Fitouts. I will refer to this statement later.
- [13]The homeowner denies there was any change to the scope of work as alleged by the builder.
- [14]She says she visited the site on 4 March 2020 and was present while one of the builder’s men was installing cavity frames. She states it took less than one hour for the installation of five frames. Subsequently, she found that they had been incorrectly installed and she had to engage another carpenter to refit them. She has attached an invoice for $1,344.20 for this work.[1]
- [15]On 10 March 2021 she says a piece of board was installed by the builder’s employee, Jim, as an additional job. It took 1.5 hours, according to the homeowner who was present at the time. Furring channel had been done incorrectly in both bathrooms and walls that should have been reinforced but were not. She could not get tilers to do the job because of the shaky walls and poor plastering job in the bathroom. She incurred additional costs of $1,344.30 to rectify this work.
- [16]According to the homeowner a piece of 90 x 90 board was installed on 29 April 2020. It took no more than 1.5 hours for the installation, but the builder had charged her four hours for this additional work.
- [17]The builder refused to install the ceiling over the deck (part of the initial quote) until the deck was fully installed. All material for the decking was fully paid by the owner including delivery to Russell Island. As she couldn't find a carpenter to do the decking due to the Covid restrictions in Brisbane she agreed to the builder's offer to pay $50 per hour for that deck installation.
- [18]She discussed the deck installation with Jim on 16 April 2020 and told him to do it without trim installation because she intended to do that part later. This is corroborated by a text message and photos of the work done. On 20 April 2020 Jim and another workman Ben were doing the installation of the deck. The homeowner was on site on 21 April 2020 to check the deck which was fully installed. A small edging was added on the 29th of April 2020 to cover the gap between the deck and the wall. It took 25 hours of work for Jim and Ben to do that together, but the builder has charged her 78 hours for work including 12 hours for the workers to be on the barge.
- [19]The homeowner had a quote for the deck from another carpenter which was $3,100.00[2] and objects to the builder charging her essentially $4,819.05 for the same work.
- [20]The homeowner says that the builder suggested to her during a phone conversation on 25 April 2020 that he would paint the ceiling in the sitting room. This, she alleges was done unprofessionally and in a hurry. She says that it took many hours to scrape drippings from the walls and partially repaint the ceiling. The cost to rectify this work was $1,606.50.
- [21]The homeowner objects to being charged 30 litres of paint to cover 38 square metres of wall. According to Dulux specification[3] one litre of ceiling paint would cover approximately 16 m2 and one litre of primer would cover 14 m2. The claim for timber for the ceiling of the deck was less than two metres yet the builder has claimed 42 metres.[4]
- [22]The homeowner says that none of the additional invoices were discussed with her.
- [23]She also has a complaint about rubbish removal. Plaster rubbish was left at the site despite an agreement by the builder to take the rubbish to the mainland as plasterboard rubbish is not permitted to be deposited on the island.
- [24]The homeowner has included two statements (statutory declarations) in her evidence. The first a statement from Corinne Breen dated 20 September 2020 where she states, inter alia, that she attended the property with water proofers who came to quote and who advised that they were not interested in doing the job as the work done on the bathrooms was substandard and they didn't wish to fix up other people's mistakes. She also states that she arranged with the homeowner for the removal of the trailer load of rubbish that the plasterers had left which included off cuts of plastering boards etc. She also helped the homeowner with painting inside the house. She had already had the ceiling in the main room done by the plasterers which was left in a very unprofessional state and took many hours to scrape down the walls to remove all the drips left. Also, she states the reveals around the doors and windows were never done.
- [25]The second statutory declaration[5] is from Bruce Ashton dated 4 September 2020, referred to earlier. Mr Ashton of Macleod Fitouts states that he had to repair plastering work where there were various lumps and marks. Plastering to the walls up to the reveals were badly finished with up to 15 mm bends over 1m. Sheeting was not fixed firmly, missing blocking on joins and sheets with large gaps and not set in bathrooms. Cornices were barely fitted in spare room and looked to have dropped 20 mm and then just been filled. There were painting splashes in various places on the walls. Incorrect installation of cavity units for the doors resulted in cutting the standard doors by more than 20 mm. He rendered a tax invoice for $1,344.20 to correct these problems.
- [26]I am unaware of Ms Breen’s qualifications to make statements about the standard of work.
- [27]The builder was given an opportunity to respond to the homeowners reply but did not file any response.[6] Consequently, many of the homeowner’s statements are not disputed.
No Contract
- [28]The agreement was a regulated contract under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The quote for the plastering work was $9,779.00. The cost of the work was for more than the minimum regulated amount ($3,300). The total of $11,794.30 paid by the homeowner which included the agreed variations of $2,960.70 was less than $20,000 and, therefore, the agreement would be a level 1 regulated contract.
- [29]Section 13(2) of Schedule 1B of the QBCC Act imposes certain requirements on owners and builders entering into level 1 regulated contracts. The minimum the section requires are that the contract be in writing, dated and signed by both parties. Additional requirements are listed under and s 13(3). As the parties have not complied with the s. 13(2) requirements it is not necessary to consider the rest.
- [30]The legislation imposes significant sanctions for both parties if the requirements of s 13(2) are not complied with, namely that the contract is of no effect. The contract here (consisting of the quote and the agreed variations) is void and it cannot be enforced by either party.
Quantum meruit
- [31]Although the contract is of no effect and the builder cannot sue on it, that does not prevent him from claiming for the reasonable value of his work done on the basis of a claim in quantum meruit. If work has been done and the homeowner has benefited from it, then it would be unjust for the builder not to be paid a reasonable amount for it. A claim in quantum meruit is available in circumstances where a contract is rendered unenforceable by statute, as is the case here. It is not a claim based on contract.
- [32]Member Favell considered a quantum meruit claim in Zoja Pty Ltd v Frost Constructions Pty Ltd.[7] He discussed the relevant authorities in the following passages:
- [75]A claim based on quantum meruit can be made by an applicant for reasonable remuneration for work already performed and voluntarily accepted by the respondent. (If the Tribunal has jurisdiction to determine such a claim.) It is insufficient to merely show the work has been done. A claim for quantum meruit may be available to allow recovery for services rendered and, can be made when the contract is at an end or is unenforceable or in circumstances where there is no contract.
- [76]
what the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or enrichment actually or constructively accepted.
- [77]Dowsett J in Balfour Beatty Power Construction Australia Pty Ltd v Kidston Goldmines Ltd[9] held that in calculating a reasonable price, it is permissible to show what the actual cost is of the work in terms of hours spent and materials supplied.
- [78]The counter claim could have been cast as a claim for work and labour done and materials supplied.
- [79]The High Court in Lumbers v W Cook Builders Pty Ltd (in liq)[10], held that a request for work and labour is an essential element of the claim and the concept of unjust enrichment as set out in Pavey’s case would not enable restitution without evidence of an express or implied request for the work and labour from the applicant.
- [80]Within the framework of a cause of action, such as an action for work and labour done, one may look to the elements of a claim in restitution if the contract is unenforceable. The elements are: (a) the respondent must receive a benefit; (b) the benefit must be at the applicant’s expense; and (c) the benefit must be unjustified.
- [81]As to the first point, a benefit may be demonstrated on the facts of a case if a party has requested work, labour and materials, the party has freely accepted the work, labour and materials or the party has obtained an incontrovertible benefit from the work, labour and materials.
- [82]As to the second point, in this case any contractual relationship is between the parties, work, the subject of the claim was performed by the respondent at its cost.
- [83]The final element requires the existence of a factor that makes it unjust for the applicant to retain a benefit. It is not sufficient to merely allege that the retention of the benefit is unfair or unconscionable. The unjust factor alleged by the respondent must be a cause of the applicant’s receipt of the benefit.
- [84]Free acceptance is a specific ground or unjust factor identified by the Australian courts.
- [85]Justice Warren in Andrew Shelton & Co Pty Ltd v Alpha Healthcare Ltd[11] provides a detailed analysis of restitution and the necessary elements, including whether or not free acceptance may serve a dual function within a claim for restitution based on unjust enrichment.
- [86]That is, both as the measure of the enrichment and as the ground of restitution. Her Honour quoted from Goff and Jones, The Law of Restitution (5th ed) (1998):
- A defendant, who is not contractually bound, may have benefited from services rendered in circumstances in which the court holds him liable to pay for them. Such will be the case if he freely accepts the services. In our view, he will be held to have benefited from the services rendered if he, as a reasonable man, should have known that the plaintiff who rendered the services expected to be paid for them, and yet he did not take a reasonable opportunity open to him to reject the proffered services. Moreover, in such a case, he cannot deny that he has been unjustly enriched.
- [87]The last principle to be considered is how assessment of the quantum of the restitution sought, should be conducted. His Honour Justice Deane said in Pavey’s case:
- What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fairand just compensation for the benefit or “enrichment” actually orconstructively accepted. Ordinarily, that will correspond to the fairvalue of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value ofmaterials supplied).
- [33]It is clear that neither claim or cross claim can be brought or enforced under the contract. The homeowner cannot rely upon any express or implied terms that the work would be carried out in a proper and tradesman like manner.
- [34]However, applying the principles espoused above, if the builder is entitled to restitution for the work he has done equally the homeowner should have received some benefit from that work. The claims made by the homeowner would suggest that has not been the case at least in respect of some of the work by the builder.
- [35]Alternatively, the cross claim by the homeowner for the defective work can be treated as a claim for damages for negligence. The builder owed a duty of care to the homeowner, outside the terms of the contract, to carry out the work competently and in a workman like manner.
- [36]As I stated earlier, the builder has not helped himself by not responding to some of the allegations made by the homeowner in respect of the standard of work and, indeed, whether all of the work claimed was requested.
- [37]The builder has incurred costs of materials and labour which are set out in the invoices referred to above. In addition, he has incurred barge fees and travel time for his workers. These were included in the original quote with no extra charge. Nevertheless, I think they are recoverable. The homeowner has incurred costs of $2,950.70 as well as unquantified cost for rubbish removal.
- [38]In my opinion, I don’t think the homeowner received the full benefit of the $11,794.30. The homeowner alleges that the builder has exaggerated the hours spent on the works as well as in some cases the quantity of materials ordered. The benefit has been eroded by the quality of the work performed. Alternatively, the homeowner is entitled to recover the rectification costs as damages. Doing the best that I can, in the circumstances, I order the homeowner pay the builder the sum of $5,000.00.
Footnotes
[1] MacLeod Fitouts invoice 14 October 2020 attachment 22 to statement by Victoria Gala filed 16 May 2022.
[2] Attachment 7 to statement by Victoria Gala filed 16 May 2022
[3] Attachment 40 to statement by Victoria Gala filed 16 May 2022.
[4] See invoice 9787.
[5] Attachment 12 to statement by Victoria Gala filed 16 May 2022.
[6] See Directions of 15 February 2022
[7] [2014] QCAT 214.
[8] (1987) 162 CLR 221.
[9] [1989] 2 Qd R 105.
[10] (2008) 232 CLR 635.
[11] (2002) 5 VR 577.