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Frost Constructions Pty Ltd v Zoja Pty Ltd QCATA 24
Frost Constructions Pty Ltd v Zoja Pty Ltd  QCATA 24
Frost Constructions Pty Ltd
Zoja Pty Ltd
On the papers
On the papers
Judicial Member Dodds
18 February 2015
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONTRACT – PERFORMANCE OF WORK – APPEAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – ORDERS SET ASIDE – Whether Tribunal has jurisdiction to decide a quantum meruit claim in a minor commercial building dispute where there is no contract for the building work
Queensland Building Services Authority Act 1991 (Qld), Dictionary, s 75, s 76, s 77(1), s 77(3)(a), s 77(3)(d)
On the papers
On the papers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- This is an appeal by a builder from a decision of a member of the Queensland Civil and Administrative Tribunal (the Tribunal) given on 20 May 2014.
- The appeal is against the conclusion by the member that he had no jurisdiction to decide the appellant’s counterclaim for $20,399.26 on a quantum meruit.
- Grounds of Appeal
- The Tribunal erred as a matter of law in finding, at paragraph 88 and 89 of its decision, that the Tribunal did not have jurisdiction to determine the applicant’s quantum meruit counterclaim because the dispute between the parties was a minor commercial building dispute; and
- The Tribunal erred as a matter of law in determining that evidence of the actual cost of the work undertaken by the applicant in its counterclaim was not evidence that could support a quantum meruit claim.
- The original matter before the Tribunal
The respondent to this appeal brought an application to the Tribunal. It made various claims for sums of money and for relief said to arise in the context of building work done by the appellant for the respondent in the construction of a four unit multi-storey building. It included claims for engaging a cost estimator and for preparing the claim brought to the Tribunal.
- The appellant counterclaimed for a sum of money as a quantum meruit for labour and materials provided for the building work done and not paid for.
- The Tribunal’s decision
Both the respondent’s claim and the appellant’s counterclaim were dismissed. The respondent had said there was a written contract for the building work in question. The appellant said there was not. No contract was produced. The member was not satisfied there was any agreement about calculation of payment for the work to be done. He said in his reasons for judgement “I am not satisfied that there was an agreement about the calculation of payment for the work to be done. It seems that claims were made and paid without a dispute about the basis of the claims made until the time of making an application to this Tribunal.”
- The Tribunal considered that if it had jurisdiction to determine the appellant’s quantum meruit claim, the basis of a claim for a quantum meruit would be made out. However, it concluded that the quantum meruit claim was not included within the definition of a minor commercial building dispute in the Queensland Building Services Authority Act 1991 (Qld) (the Act). The dictionary to the Act defined a “commercial building dispute” as, inter alia, “(a) a claim or dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work.” The quantum meruit claim did not relate to the performance of reviewable commercial work or a contract for such work.
The Act provides the Tribunal with jurisdiction in building disputes. In the dictionary to the Act a “building dispute” is defined as, inter alia, “(b) a minor commercial building dispute.” A “commercial building dispute” is defined as, inter alia, “(a) a claim or dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work.” “Reviewable commercial work” is defined in the dictionary to mean “Tribunal work other than reviewable domestic work.” For the definition of “Tribunal work” the reader is referred to sections 75 and 76 of the Act. Tribunal work is there described as, inter alia, “the erection or construction of a building.” Section 76 sets out what is not Tribunal work. It has no relevance here.
- The appellant accepts that in this case a quantum meruit claim does not relate to a contract for the performance of reviewable commercial work. However, it submits that it does relate to the performance of reviewable commercial work. It submits that it is the performance of reviewable commercial work in circumstances where there is no contract governing the relationship between the parties that gives rise to a valid claim for a quantum meruit.
- The respondent does not dispute the performance of building work by the appellant. It submits, however, that the quantum meruit claim does not relate to the performance or non-performance of reviewable commercial work. Rather the claim arose in response to the respondent’s claims. Those claims were found by the tribunal for the most part to have been based on allegations of dishonesty and not on any allegation of non-completion or non-performance of work.
- The appellant’s notice of appeal sought orders that the appeal be allowed, the decision about the counterclaim be set aside and a decision that the respondent pay to the appellant $20,399.26 be substituted. It also sought orders that:
- the matter be returned to the original Tribunal to decide the question of the costs of the original proceeding; and
- the respondent pay the appellant’s costs of the appeal.
- In the appellant’s written submissions on this appeal, rather than the order it has sought in it’s notice of appeal, it submitted the matter of the counterclaim be remitted “to the Tribunal of first instance for reconsideration of the quantification by the Tribunal of the appellant’s quantum meruit claim and the issue of the costs of the Tribunal’s proceedings at first instance with the hearing of additional evidence if required in relation to the issue of the quantification of the applicant’s quantum meruit claim.”
- The matter began in the Tribunal in July 2012. Since then it has been subjected to the Tribunal’s robust interlocutory procedures designed to provide parties the opportunity to expose and resolve the issues and if a hearing is unavoidable, ensure parties have a full opportunity to marshall and present evidence.
- There was a large volume of written material before the original Tribunal. There were at least two days of oral evidence. Neither claim could be regarded as a large claim. The evidence of Mr Frost, the principal of the appellant, suggests it would not have gone to the trouble and expense of bringing an application to the Tribunal for the amount of its counterclaim had the respondent not brought its claim against him; although he maintained the sum he sought in the counterclaim was due and owing.
- Both parties have had ample opportunity to provide evidence and present argument to the hearing of the claims. It is apparent from reading the transcript of the hearing that the learned member was alert to the evidence and the issues.
- In the reasons for judgement of the original Tribunal the following appears:
“in my view, had the Tribunal jurisdiction to determine this quantum meruit claim the basis of the claim would be made out.”;
“The respondent in support of his counterclaim has tendered a series of invoices from suppliers of materials said to be used on the build. The list of suppliers and the totals of those invoices are contained in B1, B2 and B3 to exhibit 5. Included are twelve claims from the respondent.” In the list of appendages to that exhibit it is claimed pages 1-60 in appendage FF are in respect of ‘wages paid to the builder and employees on the job at Swann Street job’. In fact, the pages are invoices from Darren Layt Carpentary and Joinery, a record of hours for employees, invoices from the respondent and invoices from East Coast Apprenticeships. It is not possible from those documents to reconcile the claims made and contained in the appendages. The Tribunal is not easily able to reach a conclusion about the fair value of any benefit provided to the applicant other than the amount paid by the applicant.
However it is not necessary to reach such a conclusion because for the reasons given the Tribunal does not have jurisdiction to determine the quantum meruit claim.”
- The appellant, in its submissions, has asked for an opportunity to make submissions regarding costs of the appeal once the appeal Tribunal has made its decision.
- Decision and Orders
In my opinion, the appellant’s quantum meruit claim in the proceeding may be construed as relating to the performance of reviewable commercial work. The basis of the claim is performance of the building work in question for which there is no enforceable contract but for which there has been acceptance by the respondent. Regarded thus, the appellant’s claim on a quantum meruit relates to the performance of the building work.
- The appeal is allowed. The decision of the Tribunal given on 20 May 2014 dismissing the appellant’s counterclaim is set aside.
- It is ordered the matter be returned to the Tribunal who made the decision appealed for reconsideration without the hearing of additional evidence.
- It is further ordered:
- the question of costs of the appeal be adjourned until final judgement of the quantum meruit claim by the original Tribunal;
- any submissions regarding costs be in writing without oral submissions to be delivered within 28 days of final judgement of the quantum meruit claim by the original Tribunal.
 Zoja Pty Ltd v Frost Constructions Pty Ltd  QCAT 214 at 45.
 Queensland Building Services Authority Act 1991 (Qld), schedule 2.
 Ibid s 77(1).
 Ibid schedule 2
 Ibid s 75(1)(a).
 Ibid s 77(3)(a).
 Ibid s 77(3)(d).
 Zoja Pty Ltd v Frost Constructions Pty Ltd  QCAT 214 at 88.
 Ibid at 92, 93.
- Published Case Name:
Frost Constructions Pty Ltd v Zoja Pty Ltd
- Shortened Case Name:
Frost Constructions Pty Ltd v Zoja Pty Ltd
 QCATA 24
Judicial Member Dodds
18 Feb 2015