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Pye v MacKay & Sons (Qld) Pty Ltd[2017] QCATA 34

Pye v MacKay & Sons (Qld) Pty Ltd[2017] QCATA 34

CITATION:

Pye v MacKay & Sons (Qld) Pty Ltd [2017] QCATA 34

PARTIES:

Mark Ian Pye

(Appellant)

v

MacKay & Sons (Qld) Pty Ltd

ABN 96 137 691 788

(Respondent)

APPLICATION NUMBER:

APL 124-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

Member Burke

DELIVERED ON:

14 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision dated 18 March 2016 is set aside;
  2. The matter is returned to the Tribunal for reconsideration of the application with particular consideration of the Appellant’s claim as stated in BDL013-15;
  3. The matter is to be reconsidered on the papers on the material before the Tribunal below.

CATCHWORDS:

APPEAL AND NEW TRIAL – Interpretation of Contract – Express conditions of contract – where alleged errors of law – where alleged that the Member did not fully consider the claim – whether Member afforded natural justice

APPEARANCES:

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

  1. [1]
    This is an appeal pursuant to s 142 of the QCAT Act of a decision of the Tribunal in relation to a building dispute. The dispute concerns building work which is Tribunal Work, as defined in s 75 of the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’).
  2. [2]
    Orders and declarations were made by the learned Tribunal Member on 18 March 2016 pursuant to s 77 of the QBCC Act and s 60 of the QCAT Act respectively, and reasons for the decision were delivered orally (‘the reasons for the decision’).
  3. [3]
    The Appellant has not sought the leave of this Appeal Tribunal pursuant to s 142(3)(b) on the basis that the appeal relates to matters of law only. In deciding an appeal on a question of law only, pursuant to s 146 of the QCAT Act, this Appeal Court may –
  1. confirm or amend the decision; or
  2. set aside the decision and substitute its own decision; or
  3. set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration –
  1. with or without the hearing of additional evidence as directed by the appeal tribunal; and
  2. with the other directions the appeal tribunal considers appropriate; or
  3. make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).

Background

  1. [4]
    The Appellant is the owner of land with 2 frontages, one at 2 Sussex Street Toowong and the other at 120 Bosley Road Toowong, Queensland.
  2. [5]
    By a written contract dated 1 November 2013 (‘the House 10 contract’), the Respondent, as contractor, and the Appellant, as owner/ builder, entered into an agreement for the Respondent to undertake the supply, delivery and restumping (with owner supplied stumps) of a house known as House 10 from 9 Cerium Street Narangba to 120 Brosely Road Toowong.
  3. [6]
    The contract price agreed was $55,905.00 including GST.
  4. [7]
    Subsequently, the Appellant and Respondent agreed to vary the contract so that the Respondent would no longer install the stumps, and the contract price would be reduced by $6,200.00. The adjusted contract price was $49,705.00.[1]
  5. [8]
    The initial agreed date for removal and delivery of House 10 was 20 June 2014.
  6. [9]
    Delivery of House 10 did not occur on 20 June 2014.
  7. [10]
    On 25 June 2014, the Appellant commenced proceedings before the Tribunal (The First Proceedings). The dispute was determined by an Adjudicator on 10 September 2014 and orders made based on the matters in dispute at that time.
  8. [11]
    The two issues to be determined by the Adjudicator related to:
    1. the variation of works under the contract being the deletion of the installation of stumps by the Respondent; and
    2. the liability for payment of rental for the storage of House 10 beyond the free period of 22 weeks allowed under the House 10 contract.
  9. [12]
    The Adjudicator ordered that the contract was varied by providing that the Appellant would install his own stumps and that the contract price would be reduced by $6,200.00. It was further declared that the Appellant owed the sum of $2,100.00 in rent under the contract for the period from 9 May 2014 to 20 June 2014, but not after that date on the facts before him at that time.
  10. [13]
    The Adjudicator concluded that the reason for the failure to move House 10 on 20 June 2014 was as a result of actions taken by the Respondent. This observation was not however the subject of a claim in the application or an order of the Tribunal.
  11. [14]
    After 10 September 2014, the parties corresponded in relation to a delivery date for House 10.
  12. [15]
    The Respondent advised the Appellant by emails dated 16 September 2014 and 3 October 2014 that removal of the house could not take place until the following year and gave the Appellant the opportunity to engage another contractor. The Appellant chose not to engage another contractor but insisted on completion of the contract by the Respondent.
  13. [16]
    On 16 January 2015, the Appellant commenced further proceedings in the Tribunal (‘the Second Proceedings’), from which this appeal arises, seeking specific performance of the contract and damages for lost opportunity for the rental of a property at 2 Sussex Street Toowong.[2]
  14. [17]
    Between March 2015 and 27 May 2015, the parties engaged in email correspondence regarding site requirements and payment conditions for the relocation of House 10 on 2 June 2015.
  15. [18]
    The parties were unable to agree on the payment conditions and once again the agreed date for the delivery of House 10 on 2 June 2015 was cancelled by the Respondent on the basis that the Appellant had failed to confirm that payments pursuant to the terms of the House 10 contract would be made as outlined in an email dated 28 May 2015.
  16. [19]
    House 10 was finally delivered to the Appellant’s property on 12 July 2016 in accordance with arrangements agreed between the parties and upon payment by the Appellant of the amounts ordered by the Tribunal pursuant to the orders made on 18 March 2016.

The Relief Sought by the Appellant in the Second Proceedings

  1. [20]
    The Appellant sought the following relief in the Second Proceedings:
    1. that the Respondent move House 10 to the Appellant’s land as soon as possible and in any event, by 27 February 2015;
    2. that the Respondent pay the Appellant damages in the sum of $13,440.00 being the rent the Appellant has been denied by the Respondent’s breach of contract on 20 June 2014 with rent payable from 20 July 2014 to 27 March [2015];
    3. that the Respondent pay the Appellant $420.00 for each week after 27 February [2015] during which House 10 is not located to the Appellant’s land.[3]
  2. [21]
    The Appellant’s claim for damages was calculated on the following basis:
    1. the Appellant intended to reside at 2 Sussex Street until House 10 was moved by the Respondent to 120 Bosley Street Toowong;
    2. upon location of House 10 at 2 Sussex Street, the Appellant would occupy 120 Bosley Street and rent the house at 2 Sussex Street Toowong;
    3. one month after relocation of House 10 to 120 Bosley Street, the house at 2 Sussex Street would be suitable for rental;
    4. had the Respondent not breached the contract, the house at 2 Sussex Street would have been habitable for rental by 20 July 2014;
    5. the rental cost for houses of similar condition in Toowong is $420 to $450 per week;
    6. as a consequence of the Respondent’s breach in failing to deliver House 10 on 20 June 2014, the Appellant has incurred loss and damage being the loss of rental since 20 July 2014.

The Respondent’s Response in the Second Proceeding

  1. [22]
    The Respondent denied the claims made by the Appellants as set out above and sought the following relief:
    1. payment of the sum of $2,100.00 outstanding pursuant to the order of the Tribunal dated 10 September 2014;
    2. rent from 10 September 2014 to 8 July 2015 in the sum of $15,050.00 based on $350 per week as provided under the contract on the basis that the Appellant has failed to pay the sum of $2,100.00 referred to herein in (a);
    3. the Appellant employ another removalist to complete the works.

The Contract

  1. [23]
    In order to understand the Tribunal Member’s reasons for the decision, it is necessary to set out the relevant terms of the contract between the parties.
  2. [24]
    The contract was in a form used by Mackay & Sons House Removals as a QBSA registered builder. It provided relevantly:

Deposit Monies

Owner will be given a maximum of TWENTY TWO weeks from the date of signing of contract to remove house from holding yard, after which time the Owner will be required to pay $350.00 per week for rental whilst house is in storage. Owner should make themselves aware of Contractors lead time with regard to possible removal dates. Rental charges are to cease 10 working days after receipt of the final building approval by this office. All charges to be paid prior to house relocation.

Should the Owner not complete the contract in full, the free storage period will not apply and the Owner will be required to pay $350 per week from the time of signing the contract.

TOTAL PRICE INCLUDING GST: FIFTY FIVE THOUSAND NINE HUNDRED AND FIVE DOLLARS ($55,905.00)

TERMS:

Deposit: TEN THOUSAND DOLLARS ($10,000.00) to be paid as a deposit; Deposit monies are non refundable unless council refuses to allow the house to be moved to, and located on the Owners  property………..

Prior to removal: SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500) to be paid when Amenities and Aesthetics/Concurrency agency approval, Preliminary approval or building approval has been issued for delivery address whichever comes first, along with extra costs associated with house being held in storage longer than TWENTY TWO weeks (charged at $350.00/week). This payment to be received in clear funds upon receipt of relevant approval and at least 24 hours prior to the house being transported from the storage yard.

Arrival:EIGHTEEN THOUSAND FOUR HUNDRED AND FIVE DOLLARS ($18,405) to be paid when house arrives at Owner’s property……………

Balance: TEN THOUSAND DOLLARS ($10,000.00) to be paid when house is lowered onto new foundations, provided by Contractor, along with any extra costs associated with foundation work………

OWNER ACKNOWLEDGES RESPONSIBILITY FOR THE FOLLOWING

  • It is the Owner’s responsibility to engage a surveyor to mark out exact required location of the house with four pegs indicating the four corners of the house and height. It is the Owners responsibility to supply completed form 16 certified by a surveyor  - for building approval.
  • Any asbestos to be removed. A clearance certificate will have to be completed by an appropriately qualified person prior to commencement of removal.
  • Full Building Approval allowing house to be re-locate to desired site.
  • Creating satisfactory access for contractor at new site, for example the removal of trees, fences etc. Please refer to site inspection letter.
  • Temporary fencing.

The Tribunal’s Decision

  1. [25]
    In the reasons for the decision, the Tribunal Member concentrated on the terms of the contract which the Respondent alleged the Appellant did not fulfil.
  2. [26]
    In this exercise, the Tribunal Member considered 4 alleged breaches of terms of the contract by the Appellant, as follows:
    1. failure to pay rental of $2,100.00 as ordered by the Tribunal;
    2. failure to provide a Surveyor’s Form 16 to the Respondent;
    3. failure to remove asbestos from House 10;
    4. failure to provide temporary fencing.
  3. [27]
    The Tribunal Member determined that each of these obligations under  the contract were pre-conditions to the Respondent’s obligation to deliver the house.
  4. [28]
    On this basis, the Tribunal Member determined that the Appellant’s failure to satisfy the alleged “pre-conditions” for delivery has been the reason for the house not being delivered to date.
  5. [29]
    The Tribunal Member then turned her mind to the Respondent’s claim for storage costs and appropriate orders for delivery of the house and the payment of rental, from the Appellant to the Respondent.
  6. [30]
    In determining any rental owed by the Appellant the Tribunal Member based her reasoning as follows:

The two dates that have been set for the delivery of the house as stated by the parties in the hearing were 20 June 2014 and then 2 June 2015. The first date was cancelled because of issues which were canvassed in the hearing before Adjudicator Gordon on 10 September 2014. After that hearing, Mr Pye was advised by Mackays that the earliest that they could deliver the house was early in the following year, being 2015. It was ultimately booked for 2 June 2015.

I am satisfied that Mackay’s was not entitled to rent for the period 20 June 2014 up to 2 June 2015, inclusive, however when the removal schedule for 2 June was cancelled because Mr Pye – on my findings – had not satisfied preconditions for the delivery, then I am satisfied that Mackay’s was entitled to rent from that time onwards.

The Appellant’s Arguments

  1. [31]
    The Appellant contends that the learned Member erred in:
    1. ordering that the Appellant pay rental charges after 20 June 2014 where there is no obligation to pay rental charges 14 days after the delivery of the building approval to the Respondent;
    2. finding that it was a pre-condition for delivery of House 10 that the Appellant was to provide a Surveyor’s Form 16 certificate to the Respondent;
    3. finding that it was a pre-condition for the delivery of House 10 that the Appellant was to erect temporary fencing before the house could be removed from the Respondent’s yard;
    4. finding that it was a pre-condition that the Appellant remove asbestos from the house as the Respondent is estopped from relying upon that condition;
    5. unfairly relying on evidence given orally by the Respondent for the first time at the hearing in preference to sworn written evidence given by the Appellant;
    6. failing to take into account the conduct of the Respondent in the proceeding, including the Respondent’s failure to attend a compulsory conference.

Discussion regarding Determination of Breach of Contract

  1. [32]
    The approach taken by the learned Tribunal Member was to assess first the breaches alleged by the Respondent to have been caused by the Appellant.[4] We shall return to those matters below.
  2. [33]
    In doing so, the Tribunal Member concluded:

On the basis of my findings, I am therefore satisfied that Mr Pye’s failure to satisfy the preconditions for delivery has been the reason for the house not being delivered to date. It is now necessary for me to determine the claim by Mr Mackay’s in respect of storage costs, as well as to make appropriate orders for the payment of moneys owed to Mr Pye and for the delivery of the house.

  1. [34]
    The Appellant’s claim that the Respondent was responsible for the non-delivery of House 10 initially on 20 June 2014 was not addressed by the Tribunal Member. The only reference to the reasons for non-delivery are referred to by the Tribunal Member in the following passage of the reasons for the decision:

The two dates that have been set for the delivery of the house as stated by the parties in this hearing were 20 June 2014 and then 2 June 2015. The first date was cancelled because of issues which were canvassed in the hearing before Adjudicator Gordon on 10 September 2014. After hat hearing, Mr Pye was advised by Mackay’s that the earliest they could deliver the house was early in the following year, being 2015. It was ultimately booked in for 2 June 2015.[5]

  1. [35]
    The Tribunal Member acknowledges that the only orders made by the Adjudicator on 10 September 2014 related to the reduction of the contract price and the Appellant’s liability to pay rental to the Respondent.[6] No orders were made regarding any breach of contract by either party. Whilst the Adjudicator formed a view regarding the performance of the parties’ obligations (expressed in the Adjudicator’s reasons) this view did not form the basis of any orders made by the Adjudicator.
  2. [36]
    In any event, it was incumbent on the Tribunal Member in the Second Proceedings to address the breaches alleged by the Appellant claiming that the Respondent was responsible for the non-delivery of House 10 on 20 June 2014.
  3. [37]
    We are of the view that the Tribunal Member erred in not applying her mind to the task of assessing the Appellant’s complete claim, as she was required to do. In so doing, the Tribunal Member erred in not addressing the breach alleged by the Appellant that it was the Respondent who was responsible for the non-delivery of House 10 on 20 June 2014. There was no consideration of all the elements of the Appellant’s claim and in particular an assessment of whether the Respondent’s conduct amounted to a breach of its obligations under the terms of the contract.
  4. [38]
    Evidence regarding the removal of trees[7] and other possible causes for the non-completion of the contract by 20 June 2014 were ignored by the Tribunal Member or simply not considered in her reasons for the decision. This evidence was critical to the Appellant’s claim and did not appear to be canvassed by the Member.
  5. [39]
    Further, in concentrating on the alleged breaches of the contract by the Appellant, the Tribunal Member labelled the owner’s obligations set out in the contract as “preconditions” under the contract.
  6. [40]
    It seems clear that the Tribunal Member is not referring to the conditions as preconditions or conditions precedent to the formation of a binding contract but rather as preconditions or conditions precedent to the performance of obligations (that is, conditions subsequent or performance conditions precedent).
  7. [41]
    The performance obligations relied upon by the Respondent are set out in the terms of the contract under the heading “Owner Acknowledges Responsibility for the Following”.
  8. [42]
    Given our view that the Tribunal Member has erred in her approach to properly considering the Appellant’s application, it is not necessary for us to address whether the Tribunal Member erred in determining that the obligations of the Appellant under the contract were “preconditions”. Suffice to say that the proper approach for the Tribunal Member would have been to address whether the alleged failure of the Appellant to meet its obligations under the contract was the cause of the non-delivery of House 10 on 20 June 2014 or whether it was a breach by the Respondent which was the real cause of the non-delivery of the house. The performance of both parties needs to be explored.
  9. [43]
    The Tribunal Member has not assessed the claims made by the Appellant and has fallen into possible error in her construction of the terms of the contract.
  10. [44]
    For this reason, we have formed the view that the appeal should be allowed and the matter remitted to the Tribunal for further consideration of the Appellant’s claim.

Conduct of the Proceedings

  1. [45]
    The Appellant submits that the Tribunal Member erred in reaching her conclusions because:
    1. reliance was placed on evidence given orally in preference to evidence contained in written statements; and
    2. evidence provided in writing by the Appellant was ignored or excluded;
    3. the conduct of the Respondent, namely its failure to attend a compulsory conference, was not taken into account.

Reliance on Evidence not Submitted in Writing

  1. [46]
    The Appellant submits that the Tribunal Member erred in allowing oral evidence during the hearing contrary to the direction of the Tribunal dated 11 November 2015.
  2. [47]
    Direction 3 provided that no party would be allowed to present any evidence at the hearing that is not contained in the statement without justifying the need for such additional evidence.
  3. [48]
    The Appellant contends that the Tribunal Member allowed the Respondent to introduce oral evidence in relation to the removal of asbestos, the provision of a surveyors Form 16 certificate and the provision of temporary fencing which was evidence beyond that in any written statement. Further to this, it is contended that the Tribunal Member relied heavily on this evidence in her determination.
  4. [49]
    Section 28 of the QCAT Act provides that the procedure for a proceeding  is at the discretion of the Tribunal and relevantly provides:

28 Conducting proceedings generally 

  1. (1)
    The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
  2. (2)
    In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
  3. (3)
    In conducting a proceeding, the tribunal –
    1. must observe the rules of natural justice; and
    2. is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
    3. may inform itself in any way it considers appropriate; and
    4. must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
    5. must ensure, so far as practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
  1. [50]
    Despite the directions regarding the procedure to be adopted at the hearing, it was open to the Tribunal Member to allow a party to introduce oral evidence either as an explanation of a matter raised in the written statements or in the exercise of a discretion whether new material would be introduced. At all times the Tribunal Member was required to act fairly and in accordance with the rules of natural justice.
  2. [51]
    The issues raised by the Appellant which were the subject of oral evidence during cross-examination were issues already raised in the affidavit material tendered on behalf of the Appellant. The affidavit sworn by the Appellant on 17 December 2015[8] specifically refers to the matters raised in the Appellant’s ground of appeal.
  3. [52]
    The Tribunal Member afforded both parties the opportunity to provide evidence in relation to the matters of complaint and no prejudice was suffered by the Appellant.
  4. [53]
    This ground of appeal is dismissed.

The Tribunal Member ignored or excluded Evidence

  1. [54]
    The Appellant contends that the learned Member erred in that she wrongly ignored a document exhibited to the Appellant’s affidavit dated 13 August 2015.[9]
  2. [55]
    The exhibit alleged to have been ignored was the transcript of proceedings 001362/14 held before the Adjudicator on 10 September 2014.
  3. [56]
    The Tribunal Member did not exclude the tender of the transcript as evidence in the hearing and specifically referred to the fact that she would be taking into account all written material provided by the parties.[10]
  4. [57]
    The weight placed on the material in the transcript from the First Proceedings is within the discretion of the Member. It is obvious from the Member’s reasons for the decision that she took into account the orders and declarations made in the First Proceedings and took into account the issues which were in dispute at the time of the First Proceeding.
  5. [58]
    The First Proceeding related to two issues in dispute between the parties:
    1. the subject of the variation to the contract price as a result of the deletion of works;
    2. the liability of the Appellant for the storage costs of House 10 after the contractual 22 week rental period.
  6. [59]
    Those 2 issues obviously involved the Adjudicator reaching conclusions on the evidence before him in order to resolve those 2 matters in dispute.
  7. [60]
    It was open to the Tribunal Member in determining the further matters in dispute to determine the extent to which the evidence in the First Proceedings was relevant.  It was also open to the Tribunal Member to form a contrary view to that formed by the Adjudicator based on all the evidence before her. The Tribunal Member determined that she was not constrained by the declarations made in the First Proceeding by the Adjudicator as the issues raised in the Second Proceedings had not been raised in the First Proceedings.[11]
  8. [61]
    Subject to our initial view regarding the approach taken by the learned Tribunal Member, it is accepted that the Tribunal Member did not err in her reception of the evidence in relation to the First Proceedings nor did she ignore or exclude such evidence.
  9. [62]
    This ground of appeal is dismissed.

Respondent’s Failure to Attend Compulsory Conference

  1. [63]
    The Appellant contends that the learned Tribunal Member took no account of the Respondent’s conduct in the proceedings and in particular its failure to attend the compulsory conference held on 6 August 2015.
  2. [64]
    There is no evidence in the reasons for the decision that the conduct of the Respondent in the proceedings was discounted. The Respondent provided an explanation, namely a scheduling over-sight, for its non-attendance at the compulsory conference. It was open to the Tribunal Member to accept this evidence.
  3. [65]
    In any event, there is no evidence that the Respondent’s non-attendance at the compulsory conference was a relevant factor which the Tribunal Member should have taken into account and which would have affected the outcome of the proceedings.
  4. [66]
    This ground of appeal is dismissed.
  5. [67]
    The appeal on an error of law is allowed. The matter should be remitted for reconsideration by the Tribunal below, with particular consideration of the Applicant’s claim as stated in BDL013-15.
  6. [68]
    The matter has a lengthy history before the Tribunal. We consider the matter can be reconsidered on the basis of the transcript of evidence and material before the Tribunal at first instance.

Footnotes

[1]  The adjusted contract price was confirmed in proceedings MCD1362/14 on 10 September 2014.

[2]  The Respondent intended to vacate the property at 2 Sussex Street once House 10 was located at Bosley Street Toowong and rent out the property at 2 Sussex Street.

[3]  The original dates in the Appellant’s application are recorded as 27 March 2014 and 27 February 2014. Having regard to the whole of the material filed, it is clear that these ought to be 2015.

[4]  The 4 breaches were (i) failure to pay rent; (ii) failure to provide Form 16; (iii) failure to remove asbestos; (iv) failure to provide temporary fencing.

[5]  Transcript of 18 March 2016; T1-6; L31-36.

[6]  T1-2; L28-35.

[7]  Transcript of 10 March 2016; T1-48, L30 to T1-54, L16.

[8]  Exhibit 4 to the affidavit of Mark Ian Pye dated 17 December 2015.

[9]  Document 5 attached to the affidavit of Mark Ian Pye dated 13 August 2015.

[10]  Transcript of 10 March 2016; T1-91, L32-36.

[11]  Transcript of 18 March 2016, T1-6, L26-29.

Close

Editorial Notes

  • Published Case Name:

    Mark Ian Pye v MacKay & Sons (Qld) Pty Ltd

  • Shortened Case Name:

    Pye v MacKay & Sons (Qld) Pty Ltd

  • MNC:

    [2017] QCATA 34

  • Court:

    QCATA

  • Judge(s):

    Senior Member O'Callaghan, Member Burke

  • Date:

    14 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Leach v Island Curtains `N Verticals Pty Ltd [2022] QCATA 91 citation
1

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