Exit Distraction Free Reading Mode
- Unreported Judgment
Von Fahland v Virk QCATA 178
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Von Fahland v Virk  QCATA 178
kay von fahland
jogesh inder singh virk
ORIGINATING APPLICATION NO/S:
14 November 2019
7 November 2019
Application for leave to appeal refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where application for leave to appeal – where sole ground of appeal was the failure to consider and determine a significant part of the appellants claim – where the transcript of evidence of the proceeding below clearly showed the part of the claim was considered and rejected on grounds of lack of credibility
Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)
Pickering v McArthur  QCA 294
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
- Mr Von Fahland was engaged by Mr Virk to perform excavation work at a house site. It involved demolition of an existing house and removal of vegetation on site and levelling of the ground. There was other work to be done such as removal of a swimming pool and filling the hole left, telephone disconnection and asbestos removal too.
- Mr Von Fahland quoted $21,880 for the work in writing, which quote was accepted.
- During the course of that work being performed significant additional work was identified as necessary by Mr Von Fahland. He maintained he agreed with Mr Virk to do the additional work. No price was set for it but he maintained Mr Virk promised to ‘look after’ him.
- Mr Von Fahland did not give a quote for the cost of the extra work and nothing was set down in writing about it.
- Mr Von Fahland said he had the extra work performed by subcontractors and he was charged by them for that. In turn he claimed $24,077.90 for the extra work from Mr Virk.
- Mr Von Fahland did not complete the original work quoted for in writing. He performed some of it only. Mr Virk refused to pay for some of the original work and refused to pay for the extra work.
- Mr Von Fahland filed an application in the tribunal to recover the cost of the extras of $24,077.90.
- The matter suffered delay through a member constituted to hear the application falling seriously ill for some significant period of time. The tribunal was subsequently reconstituted and the matter was heard afresh before an Adjudicator on 6 November 2018.
- The learned Adjudicator ordered Mr Virk to pay Mr Von Fahland an amount of $5,929 attributable to that part of the originally quoted work performed by Mr Von Fahland. There was no amount allowed for his claim for extras.
- Mr Von Fahland wants to appeal that decision. Given this is an appeal from a decision made in the tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.
- Mr Von Fahland confirmed at the hearing of the application for leave to appeal that there was only one ground of appeal, namely, that the learned Adjudicator failed to determine his claim for the cost of additional work performed by subcontractors.
- Mr Von Fahland accepts his claim his claim for work performed in accordance with the written quotation was dealt with and resulted in him being awarded $5,929. He says Mr Virk has paid him for that. He says the Adjudicator failed to deal with his claim for the extras.
- A perusal of the transcript of the proceedings before the learned Adjudicator shows quite clearly that the Adjudicator did consider but dismissed Mr Von Fahland’s claim for additional recompense for the additional work performed outside the scope of the written quotation. The learned Adjudicator gave oral reasons for his decision at the conclusion of the hearing and said this about the claim for extras:
- Adjudicator Le Mass:
… This is a domestic building contract. Fahland is in the nature of a builder. He is the professional in the transaction, and he has struck – I have found, as a matter of fact, he has struck a variation mid-contract. The obligations upon Fahland upon that moment under the Domestic Building Contracts Act is that he must take the hard steps of standing toe to toe with his client in the backyard, delivering a written variation certificate, put it in front of the customer, and having them sign to agree to it.
… I find that the obligation to do that and obtain that written variation fell with Fahland, the professional, and not Virk, the consumer, as a result of which the failure of Fahland to do that means that today he is robbed of any opportunity to obtain any extra payment from Virk because he failed to get a written variation approved by the client in accordance with the Domestic Building Contracts Act, and he should know that. No one incurs $20,000 in costs upon the basis that someone says –
I will look after you.
It is in the realms of fantasy. I don’t accept it. That’s the end of that matter. I am now going to return to the quote.
- The transcript reveals quite clearly that Mr Von Fahland’s claim for the extra work was considered but dismissed. The learned Adjudicator did not believe Mr Von Fahland that an agreement had been struck orally on site as claimed.
- Mr Von Fahland has no prospects of success on this, his only ground of appeal.
- It should be commented that the Domestic Building Contracts Act referred to by the learned Adjudicator was in fact repealed as at date of hearing and the substantive contents of that legislation now appears as schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
- Further, given the matter was clearly identified as a building dispute, there was a requirement prior to institution of proceedings that the parties attempt conciliation through a process for that with the Queensland Building and Construction Commission. Evidence of that prerequisite conciliation having been attempted is missing from the material filed by Mr Von Fahland and accordingly his application to the tribunal from outset was flawed and should have been dismissed on that basis.
- Leaving aside the missing conciliation certificate, the matter involved a claim for domestic building work, specifically site work, and was indeed clearly a building dispute. Building disputes must be brought as building disputes in the tribunal, not as minor civil disputes where the claim is for a liquidated demand of money. That it was brought as a minor civil dispute – commercial dispute does not detract from it being a claim to recover a debt or liquidated demand. Building disputes cannot be heard as minor civil dispute – minor debt claims (whether as minor debt applications or consumer disputes) in circumstances where they are claims to recover a debt or liquidated demand because the QBCC Act makes no specific provision allowing that to be done, which is a requirement of the QCAT Act.
- Leave to appeal is refused.
- Published Case Name:
Kay Von Fahland v Jogesh Inder Singh Virk
- Shortened Case Name:
Von Fahland v Virk
 QCATA 178
14 Nov 2019