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Mills v A2Z Sheetmetal Pty Ltd QCATA 64
Mills & Anor v A2Z Sheetmetal Pty Ltd  QCATA 64
A2Z Sheetmetal Pty Ltd
On the papers
Senior Member Stilgoe OAM
11 May 2015
APPEAL – BUILDING DISPUTE – where contract to complete work – where cost to complete included cost of unpaid works – interpretation of the contract – whether past consideration – whether grounds for appeal
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
- Vaughan and Justine Mills seek to challenge the finding dated 11 September 2014 by learned Member Allen that they must pay $16,200 to A2Z Sheetmetal Pty Ltd under the contract between them.
- The grounds of appeal are as follows:
- a)Interpreting the contract as requiring the applicants to pay for work done by the respondent and others for persons other than the applicants (and Full On (WA) Pty Limited in particular).
- b)Interpreting the contract as an agreement by the applicants that they should pay to the respondent the amount of debts claimed by the respondent to be due to it from others.
- c)Finding that past consideration (in the form of work done by the respondent and others) provided to persons other than the applicants could be valid consideration for an obligation on the applicants to pay to the respondent amounts claimed by the respondent to be due and unpaid for such work.
- Mr and Ms Mills allege an error of law by the learned Member. Leave to appeal is not required on an error of law.
Interpretation of the contract
- In his reasons for decision, the learned Member stated:
 The fact that Mr and Mrs Mills were eager for Mr Mollenhauer to complete his work is a good reason for them to agree to payment including the work which had already been performed. This represented the premium that was required to ensure that the work was finalised by the person they wanted.
 It would have been easy for Mr and Mrs Mills to amend the contract amount by deducting the price of the work which had already been performed by A2Z Sheetmetal as subcontractor for Full On (WA) on the basis that they were not responsible for any payment in respect of it.
 The obligation to pay the original amount was confirmed at the time the contract was varied and a purchase order was issued by Sokip Pty Ltd for the amount of $80,765.30.
 This supports the view that it was intended that the works were to be completed for an amount sufficient to cover the price of all of the works including the works which Full On (WA) had liability to pay. It is not though that Mr and Mrs Mills were taking on this liability to pay. The Tribunal is satisfied that A2Z Sheetmetal made clear that they would enter a contract to complete the works on the basis that the payment to be received by them covered all of the works including the works that had already been performed under the sub-contract with Full On (WA).
 The Tribunal understands that Mr and Mrs Mills have suffered losses as a result of Full On (WA) and they feel that they should not be obliged to pay A2Z Sheetmetal for its own loss. The facts are that by entering the contract with A2Z Sheetmetal Mr and Mrs Mills agreed to pay the total amount for the completion of the works. That was the consideration required to persuade A2Z Sheetmetal to enter the contract. It was not for Mr and Mrs Mills to later say that they could exclude payment for certain amounts on the basis that there was a liability for another party to pay for those works.
- These facts are not in dispute:
- a)A2Z performed work at the Mills’ house at Bardon under a subcontract with the head contractor, Full On (WA) Pty Limited.
- b)Full On ceased work on Mills’ site, owing A2Z $16,200.
- c)The Mills’ agent, Sokip Pty Ltd approached A2Z to return to site to complete certain works directly for Mr and Ms Mills.
- Mr and Ms Mills submit that the learned Member erred in finding that the contract represented an agreement that they would pay A2Z for the work completed under the contract with Full On, but not paid for by Full On.
- In the submissions filed on 25 November 2014, Mr and Ms Mills state that the learned Member’s interpretation of the contract was not in accordance with their intention as at August 2013, when they entered the contract with A2Z. Paradoxically, in their submissions in reply filed 12 February 2015, the Mills state that, because the meaning of the contract was clear on its face, the learned member erred in using extrinsic evidence to construe the contract. If the Mills are correct about the use of extrinsic evidence, and we accept that they are, then the tribunal could not accept evidence of their intention as at August 2013.
- The contract consisted of a Master Builders Commercial Minor Works contract, a quote from A2Z to Vaughan Mills dated 10 October 2013 and four sheets of drawings. The price nominated in the contract was $69,091.00 inclusive of GST for the supply and installation of balustrading in accordance with the attached quote. The quote was for $69,091.00 plus GST. It included work other than the balustrading. The drawings related only to the balustrading.
- Reading the contract as a whole, on its face, and without extrinsic evidence, we consider that the meaning is clear and as identified by the learned Member: Mr and Ms Mills agreed to pay $69,091.00 for A2Z to complete the balustrading work. The reference to the quote was to enable the parties to identify elements of the work to be completed. Importantly, however, the quote incorporated the detailed drawings of the balustrading.
- We agree that the contract only referred to the works to be completed. We agree that (probably) Mr and Ms Mills never agreed to pay A2Z for the disputed work. That is not the learned Member’s finding. The learned Member found, at , that Mr and Ms Mills agreed to pay a premium to ensure the balustrading was completed. The evidence can support that finding as can a natural interpretation from the face of the contract. We arenot persuaded that the learned Member was in error.
- Mr and Mrs Mills gave evidence at the hearing, as did Mr de Clara and Mr Mollenhauer for the respondent. Ultimately, the learned Member has preferred the evidence led in the respondent’s case.
- The appellants’ agent Sokip Pty Ltd approached the respondent to return to site to complete works directly for the appellant owners.
- The respondent did in fact return to work and complete certain works directly with the owner appellants. The works it completed were the balance of works remaining to be completed under the original subcontract with the now defunct principal.
- The learned Member found that the evidence of the respondent’s case supported the notion that the works were to be completed for the new owners at the former subcontract price, without deletion of the amount performed under the original subcontract.
- This purchase order was the contract setting out the rights and obligations of the new parties, the homeowners and the contractor A2Z Sheetmetal. There is no ambiguity or uncertainty as to the terms of that agreement or the price to be paid under it.
Past consideration is no consideration
- We agree with the principle that past consideration is no consideration. Mr and Ms Mills correctly state that the appropriate test is to consider the promise made by one party in exchange for the counter-promise of the other.
- Mr and Ms Mills are mistaken in their submission that A2Z was promising to perform work already done. The promise is clear on the face of the contract: it will finish the balustrading. The counter promise that it required from Mr and Ms Mills is that they would pay $69,091.00 for that work. The learned Member correctly identified that A2Z was charging a premium for finishing the balustrading, which, not coincidentally, was the same amount that Full On had not paid it. Mr and Ms Mills could have refused to enter into the contract. They did not do so. They cannot later complain about the premium because of some notion of buyer’s remorse. The learned Member was not in error.
- The appeal is dismissed.
 A2Z Sheetmetal Pty Ltd v Mills  QCAT 456.
- Published Case Name:
Vaughan Mills and Justine Mills v A2Z Sheetmetal Pty Ltd
- Shortened Case Name:
Mills v A2Z Sheetmetal Pty Ltd
 QCATA 64
Senior Member Stilgoe, Member Roney
11 May 2015