Legends Build Group Pty Ltd v Timings
[2025] QCAT 48
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- Legends Build Group Pty Ltd v Timings[2025] QCAT 48
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Legends Build Group Pty Ltd v Timings[2025] QCAT 48
Legends Build Group Pty Ltd v Timings[2025] QCAT 48
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Legends Build Group Pty Ltd v Timings [2025] QCAT 48 |
PARTIES: | Legends Build Group Pty Ltd (applicant) v PhilIP Timings (first respondent) Taryn Timings (second respondent) |
APPLICATION NO/S: | BDL176-22 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 31 January 2025 Amended 6 February 2025 under 135(1)(b) and s 135(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
HEARING DATE: | 31 October 2024 |
HEARD AT: | Cairns |
DECISION OF: | Member Taylor |
ORDERS: |
|
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – REMUNERATION – RECOVERY – a home owner contracted with a building contractor for the installation of a set of bi-fold doors, supplied by the owner, in the owner’s home – the contractor’s work was unsatisfactory, incomplete, and the doors were damaged beyond repair – the contractor, acting on its own volition, supplied replacement doors – the replacement doors were not to the owner’s satisfaction because they were not the same as the doors supplied and were not pre-finished – the contractor refused to carry out any more work and complete the contract – the contractor issued an invoice to the owner for the amount of the contract and the cost to it of the replacement doors plus sundry charges – the owner refused to make any payment to the contractor – the contractor pressed the full amount of its claim in the Tribunal CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – a home owner contracted with a building contractor for the installation of a set of bi-fold doors, supplied by the owner, in the owner’s home – the contractor’s work was unsatisfactory, incomplete, and the doors were damaged beyond repair – the contractor, acting on its own volition, supplied replacement doors – the replacement doors were not to the owner’s satisfaction because they were not the same as the doors supplied and were not pre-finished – the contractor refused to carry out any more work and complete the contract – the contractor issued an invoice to the owner for the amount of the contract and the cost to it of the replacement doors plus sundry charges – the owner refused to make any payment to the contractor – the contractor pressed the full amount of its claim in the Tribunal – the owner counterclaimed for his cost to have the doors as installed removed, new doors of the same type and standard provided, and the installation redone and completed – the contractor challenged that claim – the owner presented to this Tribunal a copy of a quote for doing that work but did not present any witness to attest to the truth and accuracy of that quote or otherwise be cross-examined by the contractor – whether in such circumstances the owner is entitled to an order for damages and if so whether it be only nominal damages DAMAGES – GENERAL PRINCIPLES – NOMINAL DAMAGES – GENERALLY – where a finding was made that a building contractor breached a contract – where the owner claimed cost of damages suffered as a consequence of the breach – where the owner’s evidence was only a quote for doing that work without the presentation of any witness to attest to the truth and accuracy of that quote or otherwise be cross-examined by the contractor – whether in such circumstances the owner is entitled to an order for damages and if so whether it be only nominal damages Civil Proceedings Act 2011 (Qld), s 58 Queensland Building and Construction Commission Act 1991 (Qld), s 77(2), s 77(3)(b), Schedule 1B – s 4(1)(b), s 5(1), s 13, s 14, s 19, s 22, s 135 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2) Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Baume v Commonwealth (1906) 4 CLR 97 Billingham & Anor v Schluter trading as Better Building Inspections Qld [2018] QCATA 165 Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 Chappel v Hart (1998) 195 CLR 232 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Huppert v Stock Options of Australia Pty Ltd (1965) 112 CLR 414 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 Natalie Cooper v Daniel Murray McGaveston [2019] QCAT 244 Neil v Nott (1994) 68 ALJR 509 New South Wales v Stevens (2012) 82 NSWLR 106 Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207 Robinson v Harman (1848) 154 ER 363 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Ingmar Kappenberger - Director |
Respondents: | Self-represented by Mr Philip Timings |
REASONS FOR DECISION
These reasons have been amended under s 135(1)(b) and s 135(2) of the Queensland Civil and administrative Tribunal Act 2009 (Qld).
- [1]Before embarking on these reasons for the decision ultimately reached in this proceeding, there is a preliminary issue which I discuss briefly here. To date, in this proceeding the respondent has been named in the Tribunal file and records as ‘Phil Timings’. It is unclear to me why that is so given the Response and/or Counterapplication is made in the name of ‘Philip and Taryn Timings’. For completeness and accuracy an order was thus made to reflect this and correct the Tribunal record.
Overview
- [2]The applicant (Legends) is a building company. The respondent (Mr and Mrs Timings) are home owners.
- [3]Mr and Mrs Timings contracted with Legends for it to install into his house some bifold doors, the doors being supplied by Mr and Mrs Timings in a prefinished state, they also supplying relevant hardware. The contract price for installation only was $1,232.00.
- [4]The installation did not proceed well. Whilst it is common ground the work was not entirely finished, Mr and Mrs Timings assert that that during the installation works the doors were ‘cut down’ and otherwise damaged by Legends workers, and the manner of installation was such that the doors were not operable. They also assert that the doors were damaged beyond repair.
- [5]Ultimately Legends provided replacement doors, delivering them to Mr and Mrs Timings’ house. But these were not installed because they were not to the satisfaction of Mr and Mrs Timings. They were of a different style and were not pre-painted.
- [6]A dispute between the parties arose, the original doors not being repaired, the new doors not being installed, the installation not otherwise completed, and no payment being made to Legends for the contracted works performed. Legends also sought payment from Mr and Mrs Timings for the replacement doors.
- [7]Legends commenced this proceeding seeking payment of what it described as ‘an amount owing’ of $7,092.71. It is explained as being an amount to cover Legend’s ‘out of pocket expenses’. By the conclusion of the hearing before me, Legend had abandoned its claim for the original contract amount and some other parts of its claim, pressing for payment only of $4,952.65 being the cost to it of the replacement doors.
- [8]Mr and Mrs Timings counterclaimed for payment to them by Legends of $11,905.00. They said this is the cost to them of having the currently installed doors, that don’t work and are damaged, removed, and new doors installed of the type originally provided to Legends and required by them. By the conclusion of the hearing they reduced this claim to $10,672, the reduction allowing for the fact that they had not paid Legends the original contracted amount which they had always been required to pay had the work been done properly by Legends.
- [9]For the reasons I explain herein, Legends fails on its claim, and Mr and Mrs Timings partially succeeds in their claim with an order made for payment to them by Legends. In addition, relevant orders were made for Legends to retrieve the replacement doors.
Relevant Facts and Circumstances
- [10]On 30 September 2021, Mr and Mrs Timings entered into a contract with Legends under which Legends, as contractor, would install a set of 7 bi-fold doors in their house. It was effectively a labour only contract with Mr and Mrs Timings providing the doors and associated hardware. (the Contract)
- [11]Over the following two days, 1 and 2 October 2021, installation of the doors occurred. It was not completed. On Mr and Mrs Timings’ case, it was bad workmanship. No further work proceeded beyond that point.
- [12]What followed during the remainder of October, then November and December 2021, was a series of communications between Mr and Mrs Timings and Mr Kappenberger, Director of Legends. At some point during the course of these communication Mr Kappenberger decided that Legends would supply replacement doors. An issue however was - who was to remove the original doors and install the replacement ones. Whilst replacement doors were supplied, they were never installed.
- [13]Ultimately, after it appeared to Mr Kappenberger that a resolution could not be found, on or about 21 December 2021 Legends issued an invoice to Mr and/or Mrs Timings for $7,092.71. A copy of that invoice was not in either party’s material before the Tribunal. As I understood it, as explained by Mr Kappenberger in the hearing, it was for the original contract amount plus the cost to his company of the replacement doors and some other expenses.
- [14]On 13 June 2022, Mr Kappenberger then commenced this proceeding in his company’s name claiming what he asserts to be ‘payment of an amount owing’ of $7,092.71 for what he says therein as being ‘owing in full for materials and labour supplied’.[1]
- [15]Acting promptly, on 15 June 2022 Mr and Mrs Timings responded. They denied liability for the claimed amount on the basis that the work done was not satisfactory and the contracted work had not been completed. They also counterclaimed against Legends for payment of $11,905, being what they say is the cost to have the damaged doors removed, new doors supplied, and in turn doors installed, thus ultimately equating to what they originally contracted with Legends to do.[2]
- [16]On 12 October 2022, Legends filed a response to that counterclaim. Whilst it appears to have disputed it, its defence to such was expressed solely as follows:[3]
The respondent is requesting that Legends Build Group pay the sum of $11,905.They came up with this figure from a quote not an invoice received for the completion of work from a different builder. Any work completed by another builder would have to be paid for by the person requesting the work, for their own benefit and is irrelevant to the case at hand. This work (if it occurred) is of no loss to the respondent.
- [17]It is against this background of relevant facts and circumstances that the matter came before me for hearing and determination.
The Issues
- [18]As I understand the circumstances, it is not in dispute that:
- The work under the Contract was not at any time completed.
- After issues arose with the installation by Legends under the Contract of the set of doors supplied by Mr Timings (the Original Doors), Legends provided a second set of doors (the Replacement Doors) but such doors were never installed.
- [19]What is in dispute is whether:
- Legends should receive any payment for what work it did do under the Contract, and/or for the supply of the Replacement Doors; and/or
- Legends should be liable to Mr and Mrs Timings for the cost of having the Original Doors removed, new doors supplied, and then the installation work that was the subject of the Contract being done entirely by a different contractor.
This Tribunal’s Jurisdiction
- [20]The work in question is the installation of bi-fold doors in a home. Thus, it is ‘domestic building work’ as that term is used in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act),[4] and in turn is ‘reviewable domestic work’ as that term is defined in Schedule 2 of that Act.
- [21]This proceeding concerns a dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work, and accordingly it is a ‘domestic building dispute’, which in turn is a ‘building dispute’, as those terms are defined in Schedule 2 of that Act.
- [22]This Tribunal is given jurisdiction to hear and decide a building dispute under s 77 of the QBCC Act.
- [23]Under s 77(2) therein, the entitlement to apply to the Tribunal does not exist absent compliance with a process established by the Queensland Building and Construction Commission (the QBCC) to attempt to resolve the dispute. That process is the QBCC Early Dispute Resolution process (EDR Process). When completed without resolution the parties are provided a letter from the QBCC evidencing the fact that they have participated in the EDR Process, and as such enabling either of them to proceed with action in this Tribunal having satisfied the requirements of s 77(2) of the QBCC Act. The letter is being proof of same that may readily be given to the Tribunal.
- [24]In the parties’ respective material as filed there is reference to their prior engagement of the QBCC. It is entirely uncertain as to whether it was the requisite EDR Process, however it is my understanding from the documentation filed by Legends it was this process although Legends does not provide any detail of what occurred.
- [25]In Mrs Timings’ statement there is a copy of a letter from the QBCC addressed to her informing her that it is unable to assist in the dispute with Mr Kappenberger.[5] It is also unclear to me as to whether this was in terms of the EDR Process or a formal complaint about defective work. Either way I accept it as being an engagement of the QBCC by the parties sufficient which satisfies the requirements of the QBCC Act s 77(2).
- [26]For these reasons I am satisfied that this Tribunal is seized of jurisdiction to hear and decide this proceeding.
Relevant Law
- [27]
A frequent consequence of self‑representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.
- [28]This is one of these sorts of matters. That observation, whilst expressed in reference to a Court, equally applies to this Tribunal. In this proceeding neither party has expressed any basis of law upon which their respective claim against the other is pressed. That being so, I make the following observations of the relevant cause of action as I understand it to be pressed by each, firstly in terms of Legends’ claim, then Mr and Mrs Timings’ claim, such being upon what their rights in this proceeding was to be determined.
- [29]Given the existence of the Contract, save only in circumstances where the Contract had been terminated by Legends for breach or repudiation of it by Mr and Mrs Timings thus giving rise to Legends’ entitlement to press a claim in damages, noting no such status had been asserted by Legends or Mr and Mrs Timings, the common ground being that the Contract remained on-foot at all times, the primary basis for Legends’ claim must be the Contract.
- [30]To that end, the nature of the Contract is important. In this instance it is a ‘complete contract’, such meaning that Legends only becomes entitled to payment under the Contract upon its completion. There was no premise upon which Legends is entitled to payment under contract on a progressive basis or for partial performance. It would only be upon discharge of the contract by some means before completion that the doctrine of part performance might have had some application. Thus, the Contract therefore must be the premise for that part of the claimed amount which is the contract sum.
- [31]Legends also claims for supply of the Replacement Doors, such which was not part of the Contract originally, and not presented in any way as a variation to that Contract. Accordingly it is a claim outside of the Contract, such being a claim for the reasonable value of the goods supplied. This is generally known as a quantum valebat claim. To succeed on such a claim, Legends must be able to show that the doors were supplied at the request of Mr and/or Mrs Timings and that he and/or she understood the doors were to be paid for, ie not supplied on some ex-gratia basis. It must also be able to show that upon receipt of the doors Mr and/or Mrs Timings had received a benefit. Finally it must also be able to show that the amount claimed for the doors is a fair and reasonable value for them as supplied.
- [32]Turning then to Mr and Mrs Timings’ claim, in similar matters before this Tribunal it is commonly the case that the complaint raised is that the builder has breached the warranty that the subject work will be carried out in an appropriate and skilful way and with reasonable care and skill. As I understand Mr and Mrs Timings’ case, that is their complaint.
- [33]Such is a warranty imposed on all regulated domestic building contracts by virtue of s 19 and s 22 of Schedule 1B of the QBCC Act. But the Contract is not such a regulated contract. This is because it is under the prescribed amount to be a such.[7] Accordingly, such a warranty is not imposed by the statute as a term of that Contract.
- [34]Also, the Contract is not in writing. Nor was it required to be to the extent of s 13 or s 14 of the Schedule 1B of the QBCC Act. Once again this is because it is not a regulated contract. That being so, there were no express term of the contract that provided for such a warranty, or other term of similar effect, to have been given by Legends.
- [35]
- [36]As Davis J expressed it in Wilmar Sugar Australia Limited v Queensland Sugar Limited referring to such:[10]
- a term will be implied by law where the nature of the contract demands it, and
- a term will be implied into the particular class of contract where the implication is necessary to make the contract effective.
- [37]That being so, whilst not necessarily given as a ‘warranty’ by Legends, in my opinion the Contract may properly be understood to contain a term, such being an intermediate term often referred to as a warranty such that a breach of it would give rise to a claim in damages, that the work under the Contract will be carried out in an appropriate and skilful way and with reasonable care and skill.
- [38]As I understand Mr and Mrs Timings’ case, they are reliant on such an implied term and that they assert it has been breached thus giving rise to their claim against Legends in damages. Additionally, their defence of Legends’ claim is that:
- the work under the Contract was never completed and so they are not under any obligation to pay any of the amount agreed under the Contract; and
- in terms of the claim for the cost of the Replacement Doors, they are not liable for it because not only did they not request such replacement but they did not receive any benefit from the supply of such doors.
- [39]I proceed on that as the basis of the contest before me.
The Evidence
Legends’ Case
- [40]Mr Kappenberger, Director of Legends, appeared for his company in the conduct of the hearing as its advocate. He was also Legends’ only witness.
- [41]On 30 August 2023, Legends filed a small amount of written material as Mr Kappenberger's ‘statement of evidence’. It was tendered and confirmed as his evidence in chief during the hearing.[11] It was in effect nothing more than the same as what was contained as part of Legends’ originating Application and/or its Response to the Counter-application. Whilst prolix, and at times confused and confusing, as I have read and understood it, the essence of Mr Kappenberger’s statement, and in turn Legends’ case, may be encapsulated in the following short extract from that material:
Work was completed to a satisfactory standard, we were willing to, but not allowed on site to finish the contract or inspect and assess the items. All allegations of faulty workmanship are incorrect. The doors did not need replacing, I was attempting to provide a will of good gesture to the client to keep the peace. …
- [42]As noted therein, Legend’s case was premised on an assertion by Mr Kappenberger that his company was not allowed back on site after 2 October 2021 to finish the work under the contract.
- [43]In terms of the claim for payment of the Replacement Doors, as part of his ‘statement’ Mr Kappenberger provided a copy of an invoice shown to have been issued by Cairns Hardware which is said to be for the supply of the Replacement Doors.[12] The price shown thereon is $4,925.65. However, he did not produce to this Tribunal a copy of Legend’s invoice for $7,092.71 as sent in December 2021, it being the subject of his company’s claim in this proceeding.
- [44]There was some short cross-examination of Mr Kappenberger by Mr Timings. The content of that was of limited probative value with the exception of a few questions and answers which I note here as they occurred during the hearing:[13]
Mr Timings | Were the doors I supplied painted? |
Mr Kappenberger | Yes. |
Mr Timings | Were the doors you supplied painted? |
Mr Kappenberger | No |
Mr Timings | Were you going to paint them ? |
Mr Kappenberger … | I gave you options. |
Mr Timings | You said that after you had two goes at doing the job, you could not do it. |
Mr Kappenberger | I said we were not doing the job – we had done it. |
Mr Timings | Do you consider the job done was completed. |
Mr Kappenberger | No. There were arguments. I was trying to find the best way out. |
- [45]Following Mr Timings’ questions, I also asked Mr Kappenberger some questions, his answers to which I considered probative:
Me | What was left to do? |
Mr Kappenberger | Repair the cut part – install locks and handles |
Me | Why was this not done? |
Mr Kappenberger | We were not allowed back on site. |
Me | Why did you then buy a new set of doors? |
Mr Kappenberger | I offered to buy a new set of doors (hardwood) made to dimensions specified by the client. I would supply them, leave it to Phil to have them changed over, and I would take the old doors. |
- [46]A little bit later in that discussion there was also the following short exchange:
Me | Did you take any steps to formally terminate the contract? |
Mr Kappenberger | There was no contract – it was electronically accepted quote. I gave him options but none were accepted. I gave him QBCC details. I exhausted all options. |
Me | Why do you say you’re entitled to $7,000. |
Mr Kappenberger | We provided new doors. |
Mr and Mrs Timings’ Case
- [47]The presentation by Mr Timings of his and his wife’s case was substantially more detailed than that of Legends. He presented two witnesses.
- [48]The first was Mrs Timings, whose statement dated 19 September 2023 was tendered as her evidence in chief.[14] It contained a copy of substantial text messaging between herself and Mr Kappenberger. Later in these reasons I extract those to the extent I considered it relevant.
- [49]Mrs Timings also explained in her statement what she observed over the two days on which Legends’ workers performed the installation work. That is relatively extensive in its content but in my opinion is summed up by the following short passage extracted from her statement wherein she explains the outcome of that work:[15]
Once Bob and his apprentice had hung the seven doors they left. Screws had been chewed out, timber had been split, doors were not flush with one another when attempted to ‘close’, no locks, handles, seals, pins or anything else had been completed. The doors were left in a mess with bog all over them, incorrect channels and attempts at digging out some bog. Doors have even been hung inside out.
- [50]She then explained what she asserts was the content of a subsequent phone call between her and Mr Kappenberger and the text messages I referred to earlier:[16]
Following this, Ingmar and I spoke on the phone and texted regarding how we would be able to move forward. He made it clear to me that he would be providing us with new doors that matched what we had provided. ... Ingmar told me on the phone that he personally doesn’t know how to hang the doors which is why he hired Luke (recommended by someone) and then Bob (a bi-fold specialist) once the job had started going wrong.
- [51]Mrs Timings also provided copies of photos she stated were representative of the condition of the Original Doors as they were left after the two days over which Legends’ performed the installation work. She explains in the following manner what those images show:[17]
The doors have not been hung to a satisfactory standard. Even if we had asked him to simply hang them, they don’t line up, they have bog everywhere, the screws are chewed out and at angles (preventing closure), the timber has been split at screw points.
- [52]Ultimately, when the Replacement Doors were ready for delivery, the following exchange of text messages occurred between Mr Kappenberger and Mrs Timings:[18]
- Monday 29 November 2021
Mr Kappenberger | The doors have arrived, I have to pick them up. Could do tomorrow if that’s OK. |
Mrs Timings | Thanks Ingmar :) that sounds great. |
- Friday 3 December 2021
Mrs Timings | Hi Ingmar, did I misunderstand your last message? I thought you were going to do the doors on Monday? |
Mr Kappenberger | Is Phil home today” |
Mrs Timings | No, he isn’t. He’ll be working in at the office |
Mr Kappenberger | I’ll have to get Cairns Hardware to deliver then. Bit heavy for 1 person. Where can they be dropped off? |
Mrs Timings | Phil will be home on Monday. We are both out today so can’t accept delivery of them. When will they be installed ? |
Mr Kappenberger | We aren’t installing them. I can’t afford another mistake from the guys. |
Mrs Timings | So who’ll be installing them ? |
Mr Kappenberger | You’ll have to engage another builder. The doors have been custom cut to size ready to go. I’ll have the doors delivered and pick up the old doors thereafter. |
Mrs Timings | You know Ingmar, I have been so accepting and tolerant of the mistakes you and your team have made. All I have asked this entire time is that you keep us updated. … At no point after the stuff ups of your crew have you indicated that you would not be installing. … |
Mr Kappenberger | I’m sorry that you were under the impression that we were installing them. I thought I had communicated that I would replace the doors at my expense but not install them. I can give you Bob’s number who helped hand the original doors, he does mostly aluminium Bi folds. |
Mrs Timings | When exactly did you say you wouldn’t be installing them ? Because at no point did you say that to me. … You do not have permission to enter our property unless we are here. The old doors are not to come down until we have someone to install the new ones. |
- Monday 6 December 2021
Mrs Timings | Ingmar, please advise what’s happening with the painting and delivery of the doors. I know it’s a crappy situation and neither of us want to have to deal with it anymore, but unfortunately it needs to be sorted so we can all move on. … |
- Tuesday 7 December 2021
Mr Kappenberger | I agree that it is not a great situation for both parties and I honestly am trying my best to rectify it. … I feel that by purchasing the new doors, cutting them to size and installing the guide rail that this would be enough from my end. Unfortunately I cannot spend anymore (sic) time or money on this. Please let me know when you are happy for me to collect the old doors. |
- Monday 13 December 2021
Mr Kappenberger | Just checking to see if the doors got delivered? I can arrange to have the other doors picked up at your convenience. |
Mrs Timings | Ingmar, the ‘replacement doors’ aren’t replacements – they’re not painted. Therefore you can’t have the old ones. In the interests of letting us all move on, how about we keep the old ones in exchange for getting the new ones painted? … |
Mr Kappenberger | You will receive the invoice for the new doors and I will hang the original ones correctly and invoice for those also. Then you are welcome to have them all as you wish. Option 2 I will have them painted, take the old doors and invoice for hanging the track and trimming the doors. |
- [53]What then followed was two simultaneous lines of communications.
- [54]One was further text messages sent between Mr Kappenberger and Mrs Timings on 14, 15, 16, 20, and 22 December 2001.[19] The other was an exchange of e-mails between Mr Kappenberger and Mr Timings which I extract later in these reasons when I note the relevant parts of the evidence given by Mr Timings.
- [55]Mr Kappenberger undertook a very short cross-examination of Mrs Timings. Save only for one question and answer, there was nothing raised therein that in my opinion had any probative value. That single Q&A was as follows:
Mr Kappenberger | The doors we supplied were the same quality. |
Mrs Timings | I can’t say – I am not a builder, but the doors were not the same, they were not duracoated. |
- [56]I subsequently asked Mrs Timings to explain what she meant by ‘duracoated’. She said that the Original Doors were pre-finished, but the Replacement Doors were bare timber.
- [57]At no time during his cross-examination of Mrs Timings did Mr Kappenberger in any way challenge the authenticity of the text messages as between him and Mrs Timings, nor the photos of the work which Mrs Timings included in her statement.
- [58]The second witness was Mr Timings. Similarly he had prepared a detailed statement of evidence, filed in the proceeding, and tendered at the hearing as his evidence in chief.[20] It was relatively substantial in its content, like his wife’s statement it too contained photos of the work, but otherwise it was much of what was already part of his Response and Counter-application as well as containing not only his wife’s statement but copies of the text messages included therein. There was however some parts of it that I considered to be probative, not otherwise found in that material filed.
- [59]Firstly, to the extent of his engagement with Mr Kappenberger by way of the e-mails I referred to in paragraph 0 herein, it was shown to be as follows:[21]
- 14 December 2021 at 6:52 am
Mr Kappenberger | Good Morning Phil, I would like to arrange a meeting today with you and your wife. We need to come up with a solution that works for us both and I feel that it can be better done face to face rather than through texting as things can easily be taken out of context. |
- 21 December 2021 at 6:49 pm
Mr Kappenberger | Hi Phil, I have tried to make contact with both yourself and Taryn to find a solution and have had no response. |
- 21 December 2021 at 6:49 pm (second e-mail)
Mr Kappenberger | Hi Phil, Here’s invoice INV-0238 for AUD 7,092.71.[22] |
- 22 December 2021 at 2:08 pm
Mr Kappenberger | Hi Phil, … With seemingly no intention from your side of resolving the issue any time soon, I will arrange to pick up the doors which have been put on my account. Let me know a suitable time when I can have them picked up. Thereafter I can arrange to have someone fix any issues with the existing doors, alternatively we will give you the labour provided this far for free and you can make your own arrangements. |
- [60]Secondly, it is apparent that the relationship continued to break down from that point. On 28 December 2021, Mr Timings sent a lengthy e-mail to Mr Kappenberger said to be in response to his e-mail of 22 December 2021 wherein Mr Timings seemingly sought to explain his and his wife’s complaint and circumstances. The preparation of this e-mail was a subject of the further text messages between Mrs Timing and Mr Kappenberger during 14 to 22 December 2021 to which I referred in paragraph [54] herein.
- [61]
Hi Phil and Taryn
We have gone above and beyond trying to help.
After choosing to ignore all of our numerous solutions to every one of your problems, you have left us no choice but to hand this over to our legal advisor.
To avoid any further costs please pay the invoice at your earliest convenience.
We do have answers to all of your false allegations and proof that you have disregarded any attempt by Legends Build Group to rectify the situation.
DO NOT use the new doors unless you intend to pay for them in full.
If you do not intend to pay for them, please return them to us ASAP or it will be treated by us as theft of property.
- 3 March 2022
Hi Phil
…
Since I am $5K out of pocket I will be going through other sources,
As previously stated, do not use my doors on your house unless you are willing to pay for them.
- [62]Within the documents forming his ‘statement’ Mr Timings included a copy of a quote from Manning Builders Pty Ltd dated 14 June 2022, addressed to Mr and Mrs Timings, such being for the work to remove the Original Doors and to supply and install a new set of doors, stated therein to be ‘duracoat’. As shown in that quote, it is said to have been prepared based on information provided by Mr and Mrs Timings and a visual inspection by Manning Builders. It is for a total price of $13,355.00. When I questioned Mr Timings about this and whether it was the basis of his counterclaim, and if so why the difference in $ figures, he said yes it was the counterclaim but he was not claiming for all that was in the quote because it included an amount for certain items he already had, such as hardware which was not fitted to the Original Doors, as well as some other items.
- [63]When I asked Mr Timings whether he would be calling a person from Manning Builders as a witness, he said he would not be calling any person and simply relied on the existence of the quote.
- [64]Mr Kappenberger also undertook a very short cross-examination of Mr Timings, which similar to his cross-examination of Mrs Timings provided little probative value save only for a few questions and answers which I note here.
Mr Kappenberger | Do you believe the doors were damaged beyond repair? |
Mr Timings | I thought it could be repaired and take a few more days, but you said they were beyond repair and you would get new doors. |
Mr Kappenberger | Do you believe I made sufficient attempts to give a workable solution ? |
Mr Timings | No. You scrambled to find alternatives after you said you would not do the job. |
Mr Kappenberger | Were we refused entry to site ? |
Mr Timings | Yes. After you said you would not do the job. |
- [65]Similar to his cross-examination of Mrs Timings, Mr Kappenberger did not in any way challenge the authenticity of the e-mail messages between he and Mr Timings which Mr Timings included in his statement, nor did he challenge Mr Timings on the status of the work as it was shown in the photos in his statement.
- [66]Whilst he noted that Mr Timings was not calling a person from Manning Builders as a witness, he did not challenge Mr Timings on what was contained therein as being in excess of what was required or generally otherwise unreasonable in terms of achieving that which Legends was contracted to do originally. His only attempted challenge to it was to say to Mr Timings that he obtained only one quote, not three. Mr Kappenberger did not advance this questioning in any way.
- [67]I also asked Mr Timings a few questions. They were to establish the calculation of his counterclaim relative to the original contract sum, and also as to the current status of the works and the Replacement Doors.
- [68]In terms of the former, I explained to Mr Timings that because he and his wife had not paid anything to Legends under the Contract, and seek to be relieved of making any such payment even though Legends did do some work, the amount of the Contract must be deducted from the amount they claim against Legends to have the doors replaced and the work redone and completed. At first he seemed confused about this, but after I explained that if such were not done and he succeeded on his counterclaim then he would be enriched by the amount he was always intending to pay for the work to be done. He accepted that.
- [69]As to the latter, as I understood his evidence it was that:
- The work on site is still as it was left by Legends.
- The Original Doors have no residual value, and more realistically have a negative value because there is cost to remove and dispose of them.
- The Replacement Doors are still stored under his house where they were delivered, and he has covered them to give them some protection.
- He does not require the Replacement Doors, and Legends can collect them.
Closing Submissions
- [70]After the close of the evidence, I afforded each party some time to prepare their closing submissions which I required to be presented orally. The presentation which followed was very short from each, subsequently expanded upon by a few questions from me. The essence of those submissions was as follows:
- For Mr and Mrs Timings
- The work done by Legends is of such bad quality of it is no value nor use.
- They should be relieved of any requirement to pay Legends for the work it did.
- Legends should pay them $10,672, being the amount of his counterclaim less the amount of the contract they had with Legends.
- The Original Doors as they remain in place have no value.
- The Replacement Doors have no value to them and should be taken back by Legends, but they ask that they be retrieved by a person other than Mr Kappenberger because they do not want him on their property.
- For Legends
- The work was done to a satisfactory standard, but if it was not then an independent expert should have been brought in to say so.
- Legends offered to complete the work but was not allowed back on site.
- Legends purchased the Replacement Doors and is now out of pocket.
- Legends should be paid the full value of the claim but it abandons the claim for the original contract amount and now claims only for the cost of the Replacement Doors, it being $4,952.65.
- The Replacement Doors are of no benefit to Legends.
- For Mr and Mrs Timings
- [71]In terms of Legends’ claim for the cost of the Replacement Doors, I raised with Mr Kappenberger and Mr Timings towards the end of the hearing that I considered it to be a quantum valebat claim and thus asked each of them to inform me as to the issues of a request for same being made by Mr and/or Mrs Timings and the benefit to them of the doors being supplied. In response to that:
- Mr Kappenberger was not able to identify any request having been made nor any benefit to Mr Timings;
- Mr Timings said he never requested new doors, but rather it was Mr Kappenberger who said he would supply them. He also said that the Replacement Doors were of no benefit to him.[25]
Discussion on the Evidence
- [72]Save only for the one reference by Mrs Timings to a ‘phone call’ with Mr Kappenberger, as I have heard, read, and understood the evidence presented, it was effectively otherwise all via text or e-mail, such as found in the statements as filed and tendered. As such, my consideration of the evidence was focussed on the content of the text messages and e-mails contained in the statements, as well as that which I was informed of via the cross-examination of the three witnesses and the questions I posed of them. The relevant and probative parts of that is as I have referred to it earlier in these reasons.
- [73]I start my discussion here with a few comments on my observations of those three witnesses.
- [74]In all respects, Mr Kappenberger was a poor witness. As I observed him, and listened to him, he was consistently evasive in his answers to questions put to him by Mr Timings and also by me. Moreover he seemed to be vague on what actually occurred, and unable to in any meaningful way explain the legal premise for his claim against Mr Timings, or his defence of Mr Timings’ claim against his company. His company’s response to the counter-application, as I referred to it and extracted it in part at paragraph [16] herein demonstrates this. It is essentially meaningless as a defence.
- [75]As to Mr Kappenberger’s evidence, there are some obvious example of why I considered him to be a poor witness.
- [76]Firstly, in presenting his evidence as the Director of Legends, it was very apparent to me that he failed to understand, or was otherwise entirely ignorant of, the existence of a contract between his company and Mr and Mrs Timings, and the obligations, burdens, and entitlements as existed on each party.
- [77]Secondly, he exhibited what appeared to me to be a complete absence of understanding that as a building contractor his company was required to have carried out its work in an appropriate and skilful way and with reasonable care and skill and that it had failed to do so. I was left with the impression that he was firmly of the view that his company’s work, to the extent performed under the Contract, was in all respects satisfactory. The photos contained in Mr and Mrs Timings statements show otherwise, something as I have noted he never challenged them on nor otherwise sought to explain to me in his closing submissions as to why these photos do not show substandard work.
- [78]His company, and he in turn as its advocate for the conduct of the matter in this Tribunal, were squarely on notice of the complaint as to the quality of the work, and had been given copies of these photos as part of the statements. Mr Kappenberger stated that an independent expert should have been brought in to prove that the work was not satisfactory given that is what Mr and Mrs Timings are asserting. Whilst it is common for independent expert evidence to be presented to this Tribunal in building cases, it is not mandatory. A party may choose, as Mr and Mrs Timings have done here, to rely simply on photographs of work which are said to ‘speak for themselves’. In my opinion that is what these photos do. If Mr Kappenberger wished to have seriously challenged the evidence of substandard work he could have readily had an expert inspect the works and provided a report to the contrary. He did not do so.
- [79]Thirdly, despite Mr Kappenberger’s statements that the work was done to a satisfactory standard, and that it was willing to complete it but was not allowed back on site, his own actions in supplying the Replacement Doors and seemingly pressing that as a solution to the errors made in his company’s efforts to install the doors on 1 and 2 October 2021 is inconsistent with that assertion. This is also related to my comments in the last paragraph. The absence of Legends presenting any independent evidence as to the quality of the work, together with its actions in supplying the Replacement Doors, an inference may be drawn that Legends accepts the work was substandard. I drew that inference.
- [80]Fourthly, despite Mr Kappenberger’s statement in his e-mails to Mr Timings as to ‘no contact’ after 14 December 2021, and his apparent argument to this Tribunal expressed in Legends’ ‘Response’ document filed in this proceeding that such was so, to the contrary there was contact, it being with Mrs Timings in the continued text messaging about the preparation of the e-mail that was ultimately sent to Mr Kappenberger by Mr Timings. Either Mr Kappenberger forgot about this, or was attempting to mislead this Tribunal.
- [81]Finally, it seemed to me that, although he is a Director of his company and thus presumably responsible for its work and the conduct of his business, he appeared to me to not have any proper or effective understanding of the conduct of business to the extent that he seemed to genuinely and honestly believe that Legends should be paid for the Replacement Doors even though he could not identify any request for same by Mr or Mrs Timings or any benefit obtained by them from the supply of those doors.
- [82]Conversely, I found both Mr and Mrs Timings to be credible witnesses. They each answered questions put to them in a forthright manner and without any great hesitation other than might ordinarily be expected of a witness seized of a certain amount of nervousness sitting in a court-room witness box. I found them to be truthful in their answers and within their written statements and the documentary material contained therein, in particular the text messages and e-mails contained therein.
- [83]Where the evidence of Mr Kappenberger was contrary to that of Mrs or Mr Timings, I preferred the latter.
- [84]That being so, and on the basis of what I have identified herein from the evidence as that which I considered to be relevant to the outcome of this proceeding, in particular the exchange of text messages between Mr Kappenberger and Mrs Timings, the photos of the work performed by Legends as appeared in Mrs Timings’ statement, and my Q&A with both Mr Kappenberger and Mr Timings, I found:
- These matters of law to have been
established:
- The Contract was a complete contract such that Legends was not entitled to payment for any of the work performed until it was completed in full;
- It was a term of the Contract that Legends was required to carry out and complete the work in in an appropriate and skilful way and with reasonable care and skill; and
- To the extent Legends pressed a claim in this proceeding for the supply of the Replacement Doors, it was as a quantum valebat claim.
- These facts to have been established:
- Legends did not complete the work it was contracted by Mr and Mrs Timings to perform.
- To the extent Legends did perform some work
under the contract:
- it was not done in an appropriate and skilful way and with reasonable care and skill;
- the Original Doors were damaged beyond repair;
- the Original Doors will have to be removed, new doors will have to be supplied of a standard and specification equal to the Original Doors, and the entirety of the work to the extent performed by Legends redone and the remainder of the work that was under the Contract not done by Legends carried out such that the installation of the doors is completed.
- Legends did not at any time after 2 October 2021 express any intention to complete the works, but rather it refused to do so and instead was pressing to simply provide the Replacement Doors and leave it to Mr and Mrs Timings to have the work done;
- Mr or Mrs Timings did not request supply of the Replacement Doors, nor did they receive any benefit from them being supplied.
- These matters of law to have been
established:
- [85]On the basis of these findings, it must follow that:
- Legends has not established any entitlement to be paid that which it claims in this proceeding.
- Mr and Mrs Timings have established that Legends breached the Contract by failing to have carried out the work in an appropriate and skilful way and with reasonable care and skill, and in turn refusing to complete it.
- Mr and Mrs Timings has established that as a result of such they have suffered harm, such being the cost to them of having the Original Doors replaced and the installation carried out entirely by another builder.
- [86]What of course follows from this is that Legends’ claim must be dismissed, and that Mr and Mrs Timings claim be allowed but subject to at the very least a deduction of the amount to have been paid to Legends under the Contract. For completeness and certainty the relief granted Mr and Mrs Timings in this proceeding should also include that they be relieved of making any payment to Legends for the work it did installing the Original Doors.[26]
- [87]But the issue is the quantum of the claim Mr and Mrs Timings should be paid as damages for the breach.
- [88]When damages are assessed for breach of contract, it is the damages that would flow had the breach not occurred and the contract had been performed to completion. To put it another way, it is the amount that is required to put the claimant of damages into the position they would have been in had the contract not been breached.[27] This is what Mr and Mrs Timings is claiming. It is said to be the cost to them of engaging Manning Builders at its quoted price, less the cost of items they otherwise already have, and less the amount of the Contract they had entered into with Legends. That is the $10,672 they ultimately pressed in the hearing before me.
- [89]However, the challenge for Mr and Mrs Timings is that, in pressing this claim reliant on the Manning Builders quotation Mr Timings, as their advocate in the hearing, did not call the author of this quote or any other person from Manning Builders Pty Ltd to testify to the truth and accuracy of what was in it, nor otherwise present any such witness for cross-examination. In Olindaridge Pty Ltd & Anor v Tracey & Anor, considering a similar circumstance, the Appeal Tribunal expressed the following observations:[28]
The estimates were of course attached to the homeowner’s statement …. However, many persons acting for themselves in proceedings attach all manner of documents to what are supposed to be statements of evidence and other documents provided to the Tribunal, much of which is ultimately not relevant or could not reasonably be given any weight in the circumstances of the case. The Tribunal must wade through and determine what is relevant. In discharging its responsibilities to give parties natural justice, it must ensure that if something is considered relevant credible and significant that the other party or parties have a proper opportunity to respond to it and test it in cross-examination.
Of course, the Tribunal is not bound by the rules of evidence, and is entitled to rely upon information which is presented in a format which would be unacceptable in a court. It was entitled to rely upon the estimates as attached to the statement of Mrs Tracey. However, if it proposed to do so, it was obliged to do so in a manner that gave natural justice to the builders. This, it seems to us, required putting the builders on notice of its intention to do so, despite the homeowners failure to identify Mr Morgan and Mr Frankham as witnesses relied upon or to make them available for cross-examination, so that they could proceed accordingly.
- [90]That being so, the failure by Mr Timings to have called the relevant person from Mannings Builders as a witness has resulted in Legends not being afforded natural justice because it has not been afforded the opportunity to test the probative value of that evidence by questioning, or putting an alternative hypothesis to, the witness about the need for the various items of the proposed work and the quantum of the quote.
- [91]In similar circumstances, following the reasoning of the Appeal Tribunal to which I have just referred, this Tribunal sitting at first instance has afforded a builder’s quote no weight.[29] In my opinion, I must do the same. Mr and Mrs Timings cannot succeed on their claim reliant on the Manning Builders quotation. But that does not mean that they must fail entirely.
- [92]
Where a breach of duty and loss are proved, it is natural enough for a court to feel reluctant to send the person harmed … away empty handed. However, such reluctance must be overcome where legal principle requires it. It must be so not only out of fairness to the defendant but also because, otherwise, a false standard of liability will be fixed which may have undesirable professional and social consequences.
- [93]Here, Mr and Mrs Timings has proven both breach and loss. Thus I am reluctant to send them away empty handed. But in the absence of their proving the quantum of that loss with evidence from Manning Builders, or by some other means, there is an element of fairness, such being procedural fairness, that I must afford Legends. My comments that follow here are for that purpose. The issue is whether Mr and Mrs Timings should receive an award of nominal damages or something larger but not to the extent they claim.
- [94]Where an actual loss is not proven, the breaching party remains liable to pay nominal damages.[32] In Billingham & Anor v Schluter trading as Better Building Inspections Qld, the Appeal Tribunal considered it appropriate, acting fairly and according to the substantial merits of the case,[33] that the entitlement to nominal damages should be assessed in circumstances where the Tribunal at first instance had found a breach of contract had occurred.[34]
- [95]In New South Wales v Stevens, McColl JA, with whom Ward JA agreed, described the manner in which the quantum of nominal damages has been considered by the Courts over a lengthy period of time showing that with the passage of time it has been progressively increasing albeit still remaining effectively as a token sum which at that time was in the order of $100.[35] In that matter the Court was concerned with the issue of whether the primary Judge erred in law awarding $10,000 as nominal damages, which was characterised more as compensatory damages, but in circumstances where the plaintiff having established breach did not prove that the breach actually caused harm to be suffered.
- [96]As I said earlier herein, I have found as a fact that the work performed by Legends was not satisfactory, that the Original Doors were damaged beyond repair, and that these doors would have to be replaced and the entirety of the work to the extent performed by Legends would have to be redone. This will come at a cost to Mr and Mrs Timings. Such is not only a set of findings that establishes a breach by Legends of the contract occurred it also establishes that Mr and Mrs Timings has suffered a loss directly caused by that breach.
- [97]Accordingly, it seems to me that arguably something more than nominal damages is warranted even though the calculation of the damages was, in the absence of probative value as to quantum, not only difficult but incapable of being carried out with certainty or precision.[36] For that reason, it seemed to me necessary that I consider two options:
- An award of nominal damages only, such which is not necessarily minimal but is usually small,[37] such affirming that there has been an infraction of his legal rights,[38] and so is vindicatory rather than being compensatory,[39] the quantification of such being a matter of my discretion;[40] or
- An award of small damages as compensatory, it still involving an element of discretion.[41]
- [98]The question then is - what is the amount they should be awarded? In my opinion the answer to that question is found in the amount of the Contract together with Mr Kappenberger’s evidence.
- [99]There is no evidence before me as to what percentage of the Contract was performed in terms of value. As I noted it in paragraph [45] herein, the evidence is that what remained was repair work and installation of locks and handles. Recalling that the contract price for the installation work only of the doors and hardware was $1,232, it seems to me that it may readily be said that $1,000 worth of work was done if it had been done properly.[42] It is that amount which would have to be redone.
- [100]Similarly, there is no evidence before me as to what the cost to Mr and Mrs Timings of the Original Doors was. But there is evidence of what a set of new doors cost, it being the cost invoiced to Legends for the Replacement Doors as it was shown in Mr Kappenberger’s statement. As I noted it in paragraph [43] that is $4,925.65.
- [101]Finally, there is no evidence before me as to what the cost to Mr and Mrs Timings will be to remove the Original Doors and dispose of them. But I readily accept it is a cost they will incur. Accordingly it seems to me that a nominal amount of $250 is a vindication of such circumstances.
- [102]All that being said, given Mr and Mrs Timings have proven not only breach of the Contract by Legends but that they will suffer a loss directly caused by that breach, namely the cost of replacing the Original Doors, having them removed as presently installed and in turn disposed of, and the installation effectively redone then the remaining work carried out and completed, in my opinion it is appropriate and proper, acting fairly and according to the substantial merits of the case, that they be awarded damages:
- in the amount of the aggregate of these three figures, namely $6,175.65; but
- increased given the passage of time since the Contract and the supply of the Replacement Doors occurred, to reflect increasing costs over that time, such which should be calculated in accordance with that which might ordinarily be a calculation of pre-judgement interest under s 58 of the Civil Proceedings Act 2011 (Qld), which on my calculations from 30 November 2021 to 31 January 2025 is $1,327.81; less
- the amount of the Contract not paid to Legends for work which was done, set at $1,000 as discussed in paragraph [99] herein, such in line with that discussed in paragraph [68] and [70](a)(iii) herein, but not deducted at the full amount of the Contract given that the entirety of the work was not done.[43]
- [103]This gives a total of $6,503.46
$7,500which in my opinion, given its calculation involves an exercise of discretion, that discretion be further exercised to round it off at $6,500.00$7,500.
Concluding Remarks
- [104]As a building contractor, Legends had an obligation to perform its contract work in an appropriate and skilful way and with reasonable care and skill. Mr and Mrs Timings were entitled to have the work done in that way. Legends did not do so.
- [105]Mr Kappenberger then embarked on what can only be described as a speculative folly in an effort to remedy what his workers had done incorrectly, and in doing so leaving Mr and Mrs Timings in a situation they should never have been put it. Any reputable builder should have, and I expect would have, simply admitted the error and immediately, without attempts to ‘negotiate’ or ‘compromise’, just got in and fixed it. Such a builder would not have done what Mr Kappenberger subsequently did. Moreover, in my opinion a reputable builder would never have in turn invoiced Mr and Mrs Timings for the supply of the Replacement Doors.
- [106]The outcome of this proceeding, started by Mr Kappenberger, reflects the entire inadequacy of his and his company’s dealings with Mr and Mrs Timings. It is unfortunate for Mr and Mrs Timings that Mr Timings did not present a witness in terms of the Manning Builder’s quote. Had he done so, the outcome might have been worse for Legends.
- [107]There was also the issue of what to do with the Replacement Doors. As Mr Timings stated, they are of no benefit to him and his wife and he says the doors should be collected by Legends. In contrast, Mr Kappenberger says they are of no benefit to his company and thus I infer he does not want to collect them. It seems to me that, given I accept Mr or Mrs Timings did not at any time request the supply of the Replacement Doors and it was something Mr Kappenberger did of his own volition, and particularly that Mr and Mrs Timings receive no benefit from the doors and do not want them, Legends should collect them from Mr and Mrs Timings’ house where they are presently stored. I also accept that it is prudent, as requested by Mr Timings, that the collection be performed by a person other than Mr Kappenberger. As I noted it in paragraph [60] herein the relationship between Mr and Mrs Timings and Mr Kappenberger had broken down in December 2021. The commencement and continuation of this proceeding would only have led to a further break down, it being as I observed it to be in terms of the interactions between Mr Kappenberger and Mr Timings during the hearing.
- [108]I do not express any opinion on who may be the protagonist, and merely express this observation in terms of addressing the submission from Mr Timings that, should an order be made for collection of the Replacement Doors it should also be ordered be that a person other than Mr Kappenberger do the collection. I accept that submission as being an appropriate one.
- [109]The ultimate outcome is that Legends’ claim must be dismissed, and that it pay Mr and Mrs Timings $6,500.00
$7,500.Orders were made to that effect, with corresponding orders made for the collection by Legends of the Replacement Doors from Mr and Mrs Timings’ house. To ensure that there is no misunderstanding or confusion in terms of this Order for collection, I have expressed it identifying the doors by reference to the invoice Mr Kappenberger produced, as a copy, to this Tribunal in support of his claim for payment, it being as I referred to in paragraph [43] herein. - [110]Neither party sought costs of the proceeding. Accordingly no order was made in that regard.
Footnotes
[1]Application for Domestic Building Dispute filed 13 June 2022 (Marked for Identification ‘A’ in the hearing).
[2]Response and/or Counterapplication filed 15 June 2022 (Marked for Identification ‘B’ in the hearing).
[3]Response filed 12 October 2022 (Marked for Identification ‘C’ in the hearing). The bold in the extract is as it appears in the original.
[4]QBCC Act - Schedule 1B – s 4(1)(b).
[5]This letter is addressed to Taryn Pratley. Mrs Timings explained to me at the start of her evidence that this is her maiden name.
[6](1994) 68 ALJR 509, 510.
[7]QBCC Act – Schedule 1B s 5(1).
[8]Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 30.
[9]Commonwealth Bank of Australia v Barker (2014) 253 CLR 169,188,[28].
[10]Wilmar Sugar Australia Limited v Queensland Sugar Limited (2019) 1 QR 1,54 and 55,[114] and [115].
[11]Ex 1.
[12]This is Cairns Hardware Invoice 21738357 dated 7 December 2021.
[13]Whilst I express this Q&A in the form of an oral exchange, it is not taken from a Transcript and so not to be read as being verbatim. It is as per the notes I took during the hearing. This same comment applies to the remainder of the oral Q&A exchanges in the hearing to which I refer in these reasons.
[14]Ex 2. Her statement was filed 28 September 2023 as Part 3K to the statement of Mr Timings.
[15]Ex 2 para 2(xii).
[16]Ex 2 para 2(xiii).
[17]Ex 2 para 2(xiv).
[18]A copy of this exchange of text message appears as part of Ex 2.
[19]Copies of these also appear in Mrs Timings’ statement but I did not consider the content of them to be of any probative value and so did not extract any part herein. It was the existence of the exchange of text messages that was relevant evidence which I discuss later herein.
[20]Ex 3.
[21]Copies of these e-mails appear as attachments to the Statement.
[22]A copy of this invoice is not within Mr Timing’s statement. The e-mail provided a ‘Xero’ link to access the invoice digitally.
[23]Copies of these are in Mr Timings’ statement. They appear to be automatically generated reminder e-mails send from Xero accounting software.
[24]Copies of these e-mails also appear as attachments to the Statement. The bold emphasis is as it appears in the copy of the e-mail.
[25]Whilst such was not raised with Mrs Timings during the giving of her evidence, given the content of her text messages sent to Mr Kappenberger I infer this too was her position.
[26]Such is a power this Tribunal is seized of under the Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(b).
[27]Robinson v Harman (1848) 154 ER 363.
[28]Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207, [43] and [44].
[29]Natalie Cooper v Daniel Murray McGaveston [2019] QCAT 244.
[30]Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570,589,[58].
[31]Chappel v Hart (1998) 195 CLR 232,268,[93]. Footnotes omitted. Whilst this observation refers to a ‘breach of duty’ such being appropriate given it was a negligence case, the comment is equally applicable to a ‘breach of contract’ in a contract case.
[32]Consider Huppert v Stock Options of Australia Pty Ltd (1965) 112 CLR 414 at 424 and 431; Chappel v Hart (1998) 195 CLR 232 and 290,[149].
[33]QCAT Act s 28(2).
[34]Billingham & Anor v Schluter trading as Better Building Inspections Qld [2018] QCATA 165, [67].
[35]New South Wales v Stevens (2012) 82 NSWLR 106, 112 to 114;[28] to [37].
[36]Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286, 301.
[37]Baume v Commonwealth (1906) 4 CLR 97,116-117. Notwithstanding that this decision was subsequently declared by the High Court in The Commonwealth v The Brisbane Milling Company Limited (1916) 21 CLR 559, this aspect of the decision was not disturbed.
[38]Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365,375
[39]New South Wales v Stevens (2012) 82 NSWLR 106,112,[26].
[40]Ibid,114,[36].
[41]Ibid.
[42]I pause here to observe that on Legend’s case it had done all the work and thus its position was that $1,232 was the total payable.
[43]Whilst it remains necessary for Mr and Mrs Timings to still have the entirety of the work done, which may readily be expected will cost more than the amount originally contracted for with Legends, to the extent there is an extra over cost, whilst some of that is encompassed in the adjustment factored in at subparagraph (b) herein, whatever the total of that extra over is it is not an amount that can be included in this calculation of damages due to the Timings’ failure to have led any probative evidence of what the new cost of installation would be. For that reason also it is not necessary to deduct the full amount of the original Contract amount.