Blackwell & Anor v Vanguard Blinds Construction Pty Ltd [2023] QCAT 328

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Blackwell & Anor v Vanguard Blinds Construction Pty Ltd [2023] QCAT 328 PARTIES: MICHAEL BLACKWELL (first applicant) DENISE BLACKWELL (second applicant) v VANGUARD BLINDS CONSTRUCTION PTY LTD (respondent) APPLICATION NO/S: BDL062-21 MATTER TYPE: Building matters DELIVERED ON: 25 August 2023 HEARING DATE: 11 August 2023 HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: Vanguard Blinds Construction Pty Ltd must collect the electric awning from Michael Blackwell and Denise Blackwell within 14 days of the date of this decision. If Vanguard Blinds Construction Pty Ltd complies with Order 1, Vanguard Blinds Construction Pty Ltd must pay to Michael Blackwell and Denise Blackwell $11,418.00 within 28 days of the date of this decision. If Vanguard Blinds Construction Pty Ltd does not comply with Order 1: (a) Michael Blackwell and Denise Blackwell are at liberty to dispose of the electric awning; and (b) Vanguard Blinds Construction Pty Ltd must pay to Michael Blackwell and Denise Blackwell $11,918.00 within 28 days of the date of this decision. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions on costs within 28 days of the date of this decision. Costs will be determined on the papers after 28 days from the date of this decision. -- 1 of 6 -- 2 CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where the applicants purchased an electric awning from the respondent – where the respondent advised the applicants that the proposed awning could be attached to the applicants’ dwelling without issue – where the respondent's agents notified the applicants that the awning could not be installed as designed as the structure to which the awning was to be affixed was not structurally capable of supporting the awning – whether the contract is an entire contract – whether the applicants are entitled to a full refund of money paid Queensland Building and Construction Commission Act 1991 (Qld), schedule 1B Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 92, s 93(3) Baltic Shipping Co v Dillon (1993) 176 CLR 344 APPEARANCES & REPRESENTATION: Applicant: Mr M Mapp, solicitor, McCarthy Durie Lawyers Respondent: No appearance REASONS FOR DECISION [1] This matter was listed for hearing in the Tribunal on 11 August 2023. Michael Blackwell and Denise Blackwell (‘the applicants’) appeared, represented by a solicitor. Vanguard Blinds Construction Pty Ltd (‘the respondent’) failed to appear. Being satisfied that the respondent had been provided with notice of the hearing under s 92 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the hearing proceeded in the absence of the respondent pursuant to s 93(3) of the QCAT Act. [2] Despite the failure by the respondent to appear at the hearing I have nevertheless considered the evidence filedby the respondent despite the respondent’s statement of evidence being neither signed nor dated. In the course of these reasons I will address the weight I have given to that evidence. [3] The dispute between the parties relates to the supply and installation of an electric awning at the applicants’ domestic premises. The electric awning was to be affixed to the structure of the dwelling at the premises. [4] I make the following preliminary findings: (a) The applicants are building owners;1 1 Queensland Building and Construction Commission Act 1991 (Qld), schedule 2. -- 2 of 6 -- 3 (b) The respondent is a building contractor;2 (c) The supply and installation of the electric awning was domestic building work;3 (d) The dispute between the parties is a domestic building dispute;4 (e) Before commencing the proceeding the applicants complied with the requirements of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’); and (f) The Tribunal has jurisdiction to decide the dispute.5 [5] Statements by each of the applicants were in evidence. Each of the applicants verified the contents of a document titled ‘Annexure A - Schedule of Facts’ (‘the schedule’). Attached to the schedule, which was also in evidence, were a number of documents relied upon by the applicants. Each of the applicants also gave evidence. I found that in giving evidence, the applicants did their best to accurately recollect the relevant events. I found the applicants to be careful and truthful witnesses. The respondent failed to appear at the hearing and the Tribunal had no opportunity therefore to assess the demeanour of its witnesses. Nor did the applicants have the opportunity to test the respondent’s evidence. I therefore attribute greater weight to the evidence of the applicants than I do to the evidence of the respondent. Accordingly, where the evidence of the applicants conflicts with the evidence of the respondent, I prefer the evidence of the applicants. [6] I make the following findings of fact: (a) on 26 August 2019 the respondent provided to the applicants a quotation for the supply and installation of an open louvre roof; (b) on 16 September 2019 the applicants paid to the respondent a deposit of $6,600.00; (c) on 19 November 2019 the applicants became aware that the installation of the open louvre roof was not feasible as a result of drainage issues on the applicants’ property; (d) on 19 November 2019 the applicants advised the respondent that they were unable to proceed with the installation of the open louvre roof and requested a refund of the deposit paid by them after deduction by the respondent of costs incurred in supplying drawings; (e) on 23 November 2019 the applicants attended at the respondent’s showroom and discussed the possibility of an alternative structure to be supplied and installed by the respondent. It was at this meeting that the supply and installation of an electric powered awning was discussed; (f) on 28 November 2019 an employee of the respondent, Matthew Vincent, attended at the applicants’ property in order to quote for the supply and installation of the electric powered awning. Mr Vincent undertook what could 2 Ibid. 3 Ibid, schedule 1B, s 4(1)(b): being ‘the renovation, alteration, extension, improvement or repair of a home’. The awning was clearly an ‘improvement’. 4 Ibid, schedule 2: definition of ‘domestic building dispute’ paragraph (a). 5 Ibid, s 77(1). -- 3 of 6 -- 4 only be described as a cursory investigation of the al fresco structure at the rear of the dwelling to which it was proposed the electric awning would be attached. Mr Vincent tapped on the lower part of the pillars of the al fresco structure and advised the applicants that the electric awning could be attached to the structure without issue. Mr Vincent made no mention of the adequacy or otherwise of the al fresco structure to support the electric awning. I pause here to note that in the document filed by the respondent ‘Summary of Evidence between Vanguard Blinds Construction/Mr Mick and Mrs Denise Blackwell’, the respondent makes no attempt to address the matters referred to in the applicants’ evidence regarding the attendance of Mr Vincent at the applicants’ property. In this regard, the applicants’ evidence is unchallenged; (g) on 2 December 2019 the respondent provided to the applicants a quote for the supply and installation of the electric powered awning; (h) on 11 December 2019 the respondent forwarded to the applicants by email a revised quote (‘the revised quote’). The amount of the revised quote was $14,272.50; (i) on 12 December 2019 the male applicant signed the revised quote and returned the signed quote to the respondent by email; (j) by operation of s 14 of the Electronic Transactions (Queensland) Act 2001 (Qld), a signed contract was entered into by the parties complying with the requirements of s 13(2) of schedule 1B of the QBCC Act. The contract was a level 1 regulated contract as defined in s 6 of schedule 1B of the QBCC Act; (k) on 13 January 2020 the applicants paid to the respondent a further amount of $4,281.75 in respect of the contract price. Prior to this date, the applicants had paid to the respondent an amount of $7,136.25 in respect of the contract price. The total amount paid by the applicants to the respondent was $11,418.00; (l) on 30 March 2021 the respondent’s servants or agents attended at the applicants’ property to install the electric awning. The applicants were advised by those persons that the awning could not be installed as designed as the structure to which the awning was to be affixed was not structurally capable of supporting the awning; (m) to date, the awning has not been installed in accordance with the terms of the contract; (n) the applicants have been advised by a builder that the cost of works required to be undertaken to enable the awning to be installed is approximately $20,000.00 to $30,000.00. [7] Having found that the contract between the parties is a level 1 regulated contract, the warranties found in Part 3 of schedule 1B of the QBCC Act are implied. In particular the warranties include that the work be carried out in an appropriate and skilful way and with reasonable care and skill,6 and that all materials supplied for use in the work will be good, and having regard to the relevant criteria, suitable for the purpose for which they are used.7 6 Schedule 1B, s 22. 7 Ibid, s 20(1)(a). -- 4 of 6 -- 5 [8] In breach of these warranties, the respondent supplied an electric awning that could not be installed in accordance with the contract unless substantial structural work to the applicants’ dwelling was undertaken. [9] The contract between the parties was an entire contract. That is to say, the obligation on the part of the applicants to pay the contract price was conditional upon full performance of the contract by the respondent. The promised consideration, being the supply and installation of a working electrical awning, was entire and indivisible. [10] This is not a case in which the applicants seek to recover monies paid to the respondent being monies paid in advance by the applicants in expectation of the entire performance by the respondent of its obligations under the contract and the respondent has rendered an incomplete performance. Rather, the result is that the awning supplied by the respondent cannot be installed in accordance with the terms of the contract and cannot be used by the applicants. There is no suggestion of incomplete performance by the respondent of its contractual obligations. What has been supplied by the respondent does not achieve, in any way, the stipulated contractual outcome. Support for this conclusion can be found in the evidence of the respondent that ‘(t)his particular product is a bespoke product made for (the applicants’) specific design requirements. It cannot be used in any other application.’ It is apparent from the respondent’s evidence that the respondent was quite aware of the very specific design nature of the awning and, further, should have been aware that steps ought to have been taken by it to ensure that the awning could be installed in accordance with the terms of the contract. [11] Nor have the applicants accepted any part of the consideration. They have rejected the awning and seek to recover the amount they paid to the respondent. The supply of the awning which could not be installed in accordance with the terms of the contract was worthless and no consideration at all.8 It follows that the applicants are entitled to recover the amount paid by them to the respondent on the basis that, if the money is not repaid, the respondent will be unjustly enriched. [12] That leaves two issues: firstly, what is to be done about the balance payable under the contract; secondly, what is to be done about the awning which remains at the applicants’ property. [13] Dealing with the first issue, in light of my finding that there has been a total failure of consideration, the respondent is not entitled to any further payment under the contract. I note that there is no counter-application by the respondent claiming the balance of the contract price nor does the respondent seek to set off this amount against any amount to which the applicants may be entitled. No doubt issues relating to estoppel will arise should the respondent seek to commence separate proceedings for the recovery of the balance of the contract price. [14] Dealing with the second issue, the applicants’ evidence, which I accept, is that they will incur an amount of $500.00 to $600.00 to dispose of the awning. The evidence of the applicants’, which I accept, is that the respondent has refused to collect the awning from the applicants’ premises. I will make orders permitting the respondent a short period to arrange to collect of the awning, failing which the applicants’ will be 8 Baltic Shipping Co v Dillon (1993) 176 CLR 344, 377 (Deane and Dawson JJ). -- 5 of 6 -- 6 permitted to recover an amount of $500.00 in respect of the cost of disposing of the awning. [15] The applicants seek their costs of the proceeding. I will make orders for the parties to file and exchange submissions on costs. Conclusion and final orders [16] The applicants are entitled to recover the full amount paid to the respondent for the supply and installation of the awning. The respondent is required to make arrangements to remove the awning from the applicants’ property within 14 days from the date of this decision. In the event the respondent does not do so the applicants are entitled to dispose of the awning and to recover from the respondent the amount of $500.00 in respect of the costs of such disposal. [17] The parties are to file in the Tribunal and exchange submissions on costs within 14 days. Costs will be decided on the papers thereafter. -- 6 of 6 --