Debono v Kellahan & Anor [2022] QCAT 317

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Debono v Kellahan & Anor [2022] QCAT 317 PARTIES: MICHAEL DAVID DEBONO (Applicant) v DREW KELLAHAN (First Respondent) and MASPID PTY LTD ATF THE MASPID FAMILY TRUST (Second Respondent) APPLICATION NO/S: BDL087-20 MATTER TYPE: Building matters DELIVERED ON: 31 August 2022 HEARING DATE: 16 March 2022 HEARD AT: Cairns DECISION OF: Member Taylor ORDERS: The Respondents’ ‘Application to extend or shorten a time limit or for waiver of compliance with procedural requirement’ dated 20 June 2022, made in this proceeding after the hearing and whilst the decision was reserved, is dismissed. The Applicant’s claim against the First Respondent is dismissed. The Applicant’s claim for interest is dismissed. The Applicant’s claim for costs is dismissed. The Second Respondent is to pay to the Applicant $8,637.70 as monies due and owing under a contract. The Respondents’ counterclaim against the Applicant is dismissed. CATCHWORDS: CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACT AND IMPLIED CONDITIONS – DISCHARGE OF CONTRACT ON DEFAULT AND LIKE GROUNDS – where the contract document contained an ambiguity as to the identification of the contracting party – where the contractor suspended the works under the contract for -- 1 of 31 -- 2 default in payment – where each party purported to terminate the contract CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – Where the contract provided for staged payments – where certain stages completed prior to termination but not paid for in their entirety – Where contractor claimed payment upon termination of the contract. Civil Proceedings Act 2011 (Qld), s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3), s 28(4), s 95 Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 McDonald & Anor v Dennys Lascelles Limited (1933) 48 CLR 457 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Sullivan v Department of Transport (1978) 20 ALR 323 WWM & S Pty Ltd t/as Vine 21 v Fenwicks Suppliers Pty Ltd [2016] QCATA 63 APPEARANCES & REPRESENTATION: Applicant: Self-represented First Respondent: Self-represented Second Respondent: Mr Drew Kellahan - Director REASONS FOR DECISION The Contest between the parties [1] Mr Debono presses a claim for payment of an amount said to be owing under contract, alternatively an award for damages, and interest thereon. In commencing this proceeding that claim was $8,637.70 owing under the contract, $3,000 for loss of profits, interest on the aggregate of those two figures at 4.75% per annum pursuant to s58 of the Civil Proceedings Act 2011 (Qld) but unquantified. He also sought an order for costs, also unquantified. The quantum of the claim changed as the proceeding unfolded. -- 2 of 31 -- 3 [2] Mr Kellahan defended the claim initially by saying he was not the proper respondent arguing that the contracting party is Maspid Pty Ltd. It was later joined as second respondent and then Mr Kellahan and his company Maspid Pty Ltd defended the claim in its entirety denying liability. A counterclaim was also raised seeking payment from Mr Debono of $2,878.71 for the additional costs said to have been incurred in completing the pool construction, and an order for rectification of the depth of the pool alternatively an assessment of damages for loss of amenity in the use of the pool, interest, and any other order deemed fit. It also changed as the proceeding unfolded with further relief sought by the respondents seeking to have this Tribunal give orders that an engineer be appointed to inspect the pool construction due to delamination of the pebbling and cracking developing in the pool. [3] This contest gave rise to a number of issues to be decided by me in reaching a final conclusion in the proceeding. Each of these are discussed in these reasons under separate headings. Background [4] Mr Debono is a pool builder. Mr Kellahan is a director of Maspid Pty Ltd (hereinafter referred to simply as Maspid). [5] On or about 11 November 2019 Mr Debono, as contractor, entered into a contract to build an in-ground concrete swimming pool on a property said to be owned by Maspid.1 [6] The copy of the document said to evidence that contract shows the owner’s name as ‘Drew Kellahan’, it being typed therein. But, there is also a handwritten notation beside whereby the name ‘Maspid P/L atf The Maspid Trust’ is inserted.2 An issue in this proceeding is the identity of the contracting party and in turn the proper respondent. [7] The contract price was $38,058 including GST. It was expressed in the contract document that such was to be paid by way of a series of progress payments against specified stages of work, namely: (a) Deposit $1,902.90 (b) Installation of concrete shell $19,029.00 (c) Render top and waterline tiles $3,805.80 (d) Lay coping toles and waterline tiles $3,805.80 (e) Pebble finish and acid wash $5,708.70 (f) Filtration and handover $3,805.70 1 The name of the owner of the property was raised during the hearing. Mr Debono does not take issue with the asserted ownership. Whilst it arises in terms of the issue as to the identity of the contracting party and thus the proper respondent, in my opinion I need not make any definitive finding on it as nothing turns on the issue and I proceeding on the basis that the owner of the property is Maspid Pty Ltd. 2 Ex 1 – MDD-1. -- 3 of 31 -- 4 [8] Shortly after the contract document was signed, Mr Debono commenced work on the construction of the pool. He made three claims for payment totalling $24,737.80, namely:3 (a) 18 November 2019 - Deposit $1,902.90 (b) 18 November 2019 - Installation of concrete shell $19,029.00 (c) 10 December 2019 - Render top and waterline tiles $3,805.80 [9] Mr Debono asserts that he received a series of payments against the claims totalling only $16,000, the last of which was received on 7 December 2019. He also asserts that on or about 22 December 2019 he sent an e-mail to Mr Kellahan informing him that payment totalling $8,737.70 was by then overdue, with a subsequent follow up e- mail to Mr Kellahan on or about 31 December 2019 noting there had been no response to the earlier e-mail and that “further action would need to be taken.”4 [10] On 7 January 2020, Mr Debono instructed his solicitor to pursue Mr Kellahan for recovery of that $8,737.70. On that day his solicitor attempted to call Mr Kellahan without success so sent him an e-mail asking him to call back.5 [11] On 8 January 2020, Mr Kellahan sent an e-mail to Mr Debono’s solicitor in which he stated Mr Debono had been paid a total of $21,100 against the claims made, and attaching what was described therein as being a ‘Breach Notice pursuant to clause 26’.6 Therein Mr Kellahan also asserted that Mr Debono had not attended site since the render was laid on 3 December 2019. The purported ‘Breach Notice’ attached thereto is a letter, shown thereon as being sent on behalf of Maspid signed by Mr Kellahan as sole director of that company. The substance of that notice was to assert that Mr Debono had failed to reasonably perform the work diligently, had delayed works, and had failed to maintain progress to achieve the agreed completion date of 3 January 2020. It concluded by stating that if the works were not completed within the next 10 business days “we will terminate the Contract without further notice to you.” [12] On 13 January 2020 Mr Debono’s solicitor sent an e-mail to Mr Kellahan in which inter-alia Mr Debono purportedly gave ‘Notice under clause 26 of the contract’ that he considered Mr Kellahan to be in substantial breach of the contract by failing to pay the progress claims 1 to 3 in full, that the amount due and owing was $8,637.70, and stating that Mr Debono intended to terminate the contract if the breach was not remedied within 10 business days. The solicitor also formally gave notice that Mr Debono had ‘suspended works’ due to Mr Kellahan’s failure to pay the progress claims.7 [13] On 15 January 2020, Mr Debono’s solicitor sent another e-mail to Mr Kellahan requesting payment of the amount owing before Mr Debono would return to work.8 3 Ex 1 – MDD-5. 4 This is as pleaded by the applicant at paragraphs 8 and 9 of his Annexure A to his Application for Domestic Building Dispute. Copies of these e-mails were not put into evidence. Nor does Mr Debono make any reference to these communications in the narrative of his written statement which is Ex 1. 5 Ex 1 – paragraphs 14 and 15, MDD 6. 6 Ex 1 – MDD 7. 7 Ex 1 – MDD 10. 8 Ex 1 – MDD 11. -- 4 of 31 -- 5 [14] There is then a gap in the evidence before me as to what transpired with the next steps showing as occurring on 31 January 2020 when Mr Kellahan sent an e-mail to Mr Debono’s solicitor, the entire content of which is as follows:9 Further to your message, the Contract was terminated on 23rd due to your client not returning to site within the 10 business days. [15] Later that same morning, Mr Debono’s solicitor sent an e-mail to Mr Kellahan in which the following was stated:10 … your purported termination of the contract is invalid and wrongful. [16] It is apparent that during February 2020 discussions between Mr Kellahan and Mr Debono’s solicitor ensued in an effort to get Mr Debono paid and the work restarted.11 Those efforts were, given the events that followed, clearly unsuccessful. [17] On 9 March 2020 Mr Debono’s solicitor sent another e-mail to Mr Kellahan in which the following statements appear:12 On 8 January 2020 you issued a breach notice and purported to terminate the contract but at that time my client had suspended works due to you being in substantial breach of your payment obligations and your purported termination of the contract therefore amounted to a wrongful repudiation of the contract. On 13 January 2020 I sent you an e-mail advising you that you are in substantial breach of the contract by failing to pay he progress claims 1, 2 and 3 amounting to $8,637.70 and giving notice of my client’s intention to terminate the contract if your substantial breach of the contract [was] (sic) not remedied within 10 business days. … Our client accepts your repudiation of the contract and elects to terminate the building contract. Further or in the alternative, my client hereby terminates the contract on grounds that you have failed to remedy your substantial breach of the contract by paying my client’s progress claim 1, 2 and 3 totalling $8,637.70. My client has instructed me to commence legal proceedings against you seeking damages for breach of contract and wrongful repudiation of the building contract. [18] The next step taken by the Mr Debono was to file his Application for Domestic Building Dispute in this Tribunal on 24 April 2020 seeking the relief which I noted at the start of these reasons. [19] Mr Kellahan initially defended the claim on a narrow basis. By way of his Response and/or Counterapplication filed 25 May 2020 he asserted he was not the proper respondent on the basis that he did not enter into the contract with Mr Debono, but 9 Ex 1 – MDD 12. The subject line of that e-mail, and the attachments shown thereon as having been included with the e-mail, are the same as the subject line of Mr Kellahan’s e-mail of 8 January 2020 other than in the latter the words “and Termination Notice” were added, but there was no additional attachment added. There is not a ‘Termination Notice’ which is shown to have been issued by either of the respondents in evidence. 10 Ex 1 – MDD 13. 11 See Ex 1 – MDD 14 and 15. 12 Ex 1 – MDD 15. -- 5 of 31 -- 6 rather it was Maspid that was the home owner. He sought an order that the application be dismissed. [20] On 20 July 2020 Mr Kellahan then filed a formal application for dismissal of the proceeding. By Directions given 12 August 2020 such was refused and simultaneously Maspid was joined as second respondent to the original domestic building dispute application by Mr Debono. [21] The proceeding then continued, albeit in a somewhat floundering manner, with a large number of procedural directions being issued. Many of these were necessary as a direct result of Mr Kellahan and Maspid failing to comply with the timeline set for the filing and service of requisite material. This continued up to and even beyond the date of the hearing. [22] By a document dated 8 September 2021, Mr Kellahan and Maspid filed what was said to be a response “in addition to the Respondent’s Response dated 19 May 2020.”13 It was expressed in the plural as being the respondents’ response, on this occasion directly addressing the paragraphs of Mr Debono’s Annexure A to his originating application. It once again defended the claim in its entirety and, as noted earlier in these reasons, also raised a counterclaim. [23] At the hearing on 16 March 2022 an issue arose as to whether this document was actually filed. It did not appear in the Tribunal’s file for this proceeding at the time, nor could it otherwise be located at the time during a short adjournment during the morning of the hearing. Mr Kellahan ultimately provided a copy via e-mail to my Hearing Support Officer at 10:37 am on 16 March 2020, and a copy of it was in turn provided to Mr Debono. That copy was marked ‘A’ for identification. It was the subject of further communications by Mr Kellahan with the Tribunal registry which I discuss under the next heading. [24] By the time of the hearing, the parties positions had changed. [25] Mr Debono expressed his claim as being one for $18,689.06 being the total of $8,637.70 as monies due and owing, but no longer being expressed as one in damages, $3,000 for loss of profits, and $6,390.89 for costs.14 However, the claim for ‘costs’ was not costs of the proceeding, being the nature of the first expression of costs in the originating application, but rather it was expressed in the following manner: …the Applicant has incurred significant legal costs in pursuing the Respondent for monies due and owing. The Applicant is seeking costs in the amount of $6,390.89 for costs that the Applicant would not have incurred but for the Respondents ( sic) repudiation of the contract and refusal to pay.15 [26] By a further amended counterclaim provided to this Tribunal on 15 March 2022, Mr Kellahan and Maspid extended the counterclaim to include an order be made by this 13 This is as extracted from the document, which given it is expressed in the singular possessive I read it to be a reference to Mr Kellahan’s initial Response filed 25 May 2020 when he was the sole named respondent. 14 Applicant’s ‘Written Schedule” filed 8 March 2021, such being in satisfaction of Direction 3 of the Tribunal’s Directions given 4 February 2021. It may be observed here that a similar Direction was given to the Respondents but not complied with. 15 Ibid – para 13(d) -- 6 of 31 -- 7 Tribunal that “an engineer be appointed to assess and determine the delamination [of] (sic) the pebble, the increasing cracks in the Pool, the calcium build up on the pebble and the loss of water … and if it is found to be the responsibility of the Applicant, an Order that the Applicant rectify the issues”.16 [27] After the close of evidence in the hearing, due to the lateness of the day and the inability to conclude the hearing that day with oral closing submissions I gave directions for the filing of written closing submissions. Written submissions were received, namely: (a) Mr Debono’s closing submission filed 4 April 2022; (b) Mr Kellahan’s and Maspid’s closing submissions filed 25 May 2022; and (c) Mr Debono’s reply submissions filed 6 June 2022. [28] In presenting those closing submissions, the parties’ respective positions once again changed. [29] Mr Debono’s claim for ‘costs’ increased to a fixed amount of $9,746.88. He also quantified his claim for interest at $1,597.18 plus that accruing at $4.37 per day, on this occasion said to be calculated at 6.10% per annum albeit still under s58 of the Civil Proceedings Act 2011 (Qld). [30] Mr Kellahan and Maspid did not raise further the extension to the counterclaim in terms of the alleged delamination of the pebbling and/or cracks in the pool. It was simply not addressed in their closing submissions. [31] There are a number of issues arising from this contest. I discuss them under their relevant headings in the paragraphs that follow here. But before doing so there is a threshold issue that I should address as my decision on it dictated the extent to which I had regard to the respondents’ material. The Respondents’ late material and Mr Kellahan’s statement. [32] At the hearing Mr Kellahan sought to tender a document dated 8 September 2021 containing the respondents’ response and counterclaim, and a statement given by him. This is the document I referred to in paragraphs [22] and [23] herein. As I observed therein no such document was on the Tribunal file that was before me. Nor on enquiry of the Registry by my Hearing Support Officer during a short adjournment of the hearing that morning could any such document be found. [33] Notwithstanding its absence, Mr Kellahan informed me that he had mailed it to the Registry in Brisbane on or shortly after that date. To enable the hearing to continue, Mr Kellahan e-mailed a copy of the document to my HSO at 10:37 am on the morning of the hearing. [34] As I also noted it in paragraph [26] herein, on the afternoon prior to the hearing Mr Kellahan had also sent an e-mail to my HSO seeking to file a further ‘Amended Response, Counterclaim and Statement’. This is expressed in an identical format to 16 Attachment to Mr Kellahan’s e-mail to my HSO dated 15 March 2022 at 12:46pm. This document was referenced as Ex’s 3, 4 and 5 in the hearing. The amended response was marked Ex 3. The amended counterclaim was marked as Ex 4. The statement of Mr Kellahan contained therein was marked Ex 5. -- 7 of 31 -- 8 the document dated 8 September 2021, the relative components therein being expressed as being “in addition to” the content of the 8 September 2021 document. [35] On returning to the hearing after that short adjournment I discussed these documents with Mr Debono and Mr Kellahan. I noted they each contained three parts. [36] The first was entitled ‘Response’. Mr Debono did not raise any objection to this part of the document being considered by me. Accordingly I allowed the tender of it to that extent, receiving the 15 March 2022 document under the heading ‘Response’ and marking it as Exhibit 3. Save only for the reference in paragraph 1 therein as to it being in addition to the 8 September 2021 response, it is identical to the content of that earlier response. Accordingly the content of the 8 September 2021 document to that extent formed part of that Exhibit. [37] The second was entitled ‘Counterclaim’. Once again it was expressed as being in addition to the 8 September 2021 document, and was identical to the content of the earlier document save only for the addition of the relief sought which I noted in paragraph [26] herein. Again Mr Debono did not raise any objection to this part of the document being considered by me. Accordingly I allowed the tender of it to that extent, receiving the 15 March 2022 document under the heading ‘Counterclaim’ and marking it as Exhibit 4. [38] The third was entitled ‘Drew Kellahan Statement’. Unlike the other two sections, in the 15 March 2022 document the content of the 8 September 2022 was not repeated and merely added to with a few additional points underlined to clearly identify the differences, but rather it was expressed in the latter document as being “in addition to my Statement of 8 September 2021”. That additional content raised issues of an alleged ‘landslide – unstable land’, and the ‘pebble delamination’ issue that appeared to be the subject of the amended Counterclaim. [39] Mr Debono did not object to the content of Mr Kellahan’s statement in the 15 March 2022 document to the extent it provided that ‘additional’ information. Accordingly, to that extent I allowed the tender of it and received the 15 March 2022 document under the heading ‘Drew Kellahan Statement’ marking it as Exhibit 5. [40] However, Mr Debono did object to the tender of Mr Kellahan’s statement as it was contained in the 8 September 2021 document, as I have noted its content not being repeated in the 15 March 2022 document. The earlier document also as annexed to it eleven ‘Exhibits’ marked DK 1 to DK 11, such which did not appear as part of the 15 March 2022 document, that latter document containing its own exhibits DK 1 to DK 4. Mr Debono did so on the basis that he had never been served with this document nor had otherwise seen it or known of its content until he was provided with a copy of it in the hearing that morning. He stated that, if I was of the view that I should allow its tender, he would require the hearing to be adjourned to a future date to enable him time to consider its content before being able to continue with the hearing. [41] After some further discussion with Mr Debono and Mr Kellahan I upheld the objection and disallowed the tender of this part of the 8 September 2021 document, namely Mr Kellahan’s statement of that date. Accordingly that part of the document remained being marked for identification ‘A’ within the record of the hearing. [42] Notwithstanding that decision, the Respondents continued to press the point in their written closing submissions submitting that Mr Kellahan’s statement “ought to -- 8 of 31 -- 9 properly be considered by the Tribunal”.17 In doing so, they also made submissions reliant on, and in reference to, various parts of that statement of the exhibits thereto. I thus deal with the issue further in terms of the objection by Mr Debono notwithstanding that I had already determined it in the hearing. The Respondents’ Submissions [43] The respondents submit that: (a) under s28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) this Tribunal may inform itself in any way it considers appropriate, and further it is bound to act with as little formality and technicality as permitted and must ensure that all relevant material is disclosed to the Tribunal to allow it to decide the proceeding with all relevant facts; (b) under s28(4) of the QCAT Act this Tribunal may admit into evidence the contents of any document despite non-compliance with any time limit or other requirements; and (c) without Mr Kellahan’s statement, I would be unable to decide the proceeding with all relevant facts and therefore on a just and fair basis. [44] They say they “concede”, because of the non-recording of the 8 September 2021 document in the Tribunal file, they were “non-compliant with time limits of the Tribunal’s previous directions”, but their submission is that the wide powers provided for under s28(4) means that the Tribunal was still able to accept the document into evidence. [45] The respondents also submit that pursuant to s95 of the QCAT Act, the Tribunal is to allow a party reasonable opportunity to call or give evidence in a hearing, and that I ought to have ensured they were able to give evidence during the hearing including to allow Mr Kellahan to “read from the Statement where such statement was ostensibly excluded from the hearing” arguing that despite s95, they were “denied the opportunity to rely on their written statement.” [46] They continued referring me to the decision of the High Court in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30] arguing that unless there is a clear contrary legislative intention, a decision-maker must accord procedural fairness to those affected by the decision. They then conclude with this submission: In the circumstances where the Respondents provided limited oral evidence, it is submitted that the statement of the First Respondent ought properly to be admitted into evidence to address the factual basis upon which the Respondents resist the claim of the Applicant, without which the Respondent’s (sic) case is unable to be construed with any clarity on the basis of oral evidence provided during the hearing. Applicant’s Reply Submissions [47] As provided for by my Directions given for the filing of written closing submissions, Mr Debono took up the opportunity to reply to the respondents’ written closing 17 The respondents’ closing submissions para’s 5 to 18. -- 9 of 31 -- 10 submissions, but limiting it only to a response to paragraphs 5 to 18 therein, being that to which I have just referred.18 [48] Those submissions were short and concise. He opened noting the respondents’ failure to have complied with Directions of this Tribunal on numerous occasions, and that they had been afforded ample opportunity to provide evidence and documents. He then made a few key submissions which in my opinion are suitably extracted here rather than merely paraphrased or summarised. They are as follows: The Rules of practice and procedure are made for the efficient and effective functioning and management of the business of the Tribunal and are expected to be obeyed to avoid chaos. Reasonable time limits are fixed to assist the Tribunal in administering justice and meeting the stated objects of the QCAT Act. Allowing the late filing of material is an indulgence for deserving cases – not a right for the tardy. Overlooking the Respondents’ multiple non-compliance encourages the Respondent (sic) to ignore Directions and aggrieves the Applicant who has at all times respected and faithfully adhered to the Tribunal’s practices and procedures. [49] Mr Debono then concluded his reply submissions by referring me to the decision in WWM & S Pty Ltd t/as Vine 21 v Fenwicks Suppliers Pty Ltd [2016] QCATA 63, [4] submitting such provides judicial support to his submissions. A Related Issue – Mr Kellahan’s application of 20 June 2022 to extend time [50] Before I discuss these competing submissions, there is a related issue that for completeness I should raise and address. [51] The timeline given in my Directions for the provision of written closing submissions required Mr Debono to provide his by 6 April 2022, Mr Kellahan and Maspid to provide theirs by 27 April 2022, and then Mr Debono being afforded a right of reply to be given by 11 May 2022 if required. [52] Mr Debono complied with the first date. However, the respondents did not comply with the second date. Rather, on the day their submissions were due they applied for an extension of time of additional two weeks. Then on 12 May 2022 they revised that application and sought an extension of three weeks. [53] On 17 May 2022 I have gave directions extending the time for the respondents to provide their written submissions until 4:00 pm 25 May 2022, with a corresponding extension being given to Mr Debono for him to file any reply submissions. I also gave a direction that the respondents will not be permitted any further extensions, and should the respondents fail to comply with this extended timeline the matter would proceed to be determined on the material that was then before the Tribunal. [54] As I have noted above, the respondents filed their written submissions on 25 May 2022. However, on or about 23 May 2022 Mr Kellahan formally made a complaint to the Tribunal expressing his concern about the 8 September 2021 material being missing from the Tribunal’s file at the time of the hearing. In a letter dated 14 June 18 Applicant’s reply submissions filed 6 June 2022. -- 10 of 31 -- 11 2022 from the Registrar of this Tribunal in response to Mr Kellahan, the Registrar stated that having reviewed the file he was then able to confirm that the said document was in fact received but was not corrected logged on the Tribunal’s document system and thus not placed on the physical file in time for the hearing on 16 March 2022. [55] What then appears to have followed is yet another application being made to the Tribunal by Mr Kellahan, dated by him as 20 June 2022 at 11:49 am.19 It was an ‘Application to extend or shorten a time limit …”. The premise given therein for it was expressed as follows: During the hearing, the Respondents were unable to refer to or read their Response, Counterclaim and Statement filed on 8 September. [56] On that premise, Mr Kellahan expressed the order of this Tribunal sought therein in the following manner: Based on QCAT Letter dated 14 June 22, extend the time limit of the Direction dated 16 May 2022 for a further 2 weeks to allow the Respondents to draft further submissions about the matter including potentially seeking a re-hearing of the matter.20 [57] Surprisingly, curiously, and without any apparent logical reasoning, Mr Kellahan sought an extension of time for the respondents to comply with a direction that they had already complied with. On at least one reading of Mr Kellahan’s latest interlocutory application he possibly could have had in mind that he was wanting to reopen his case to lead further evidence or make further submissions, but this was not his application at that time and no such application has since been made. [58] By the time of my considering the issues in this proceeding for the purposes of making my decision on the contest between the parties, and in turn drafting these reasons, Mr Kellahan’s application had not been formally dealt with and accordingly I dealt with it herein. Discussion on the competing submissions and the latest interlocutory application [59] As I noted it earlier in these reasons, there was a large number of procedural directions issued in this proceeding before the matter ultimately came to the substantive hearing. It is convenient to note here those that are relevant to this issue. [60] On 12 August 2020, the respondents were directed to file and serve their statements of evidence by 23 October 2020. They did not do so. [61] On 4 February 2021, the respondents were directed to file and serve their statements of evidence by 22 February 2021, and to file and served a written schedule of final orders being sought by them and the reasons why, both by 15 March 2021. Again the respondents did not comply with the direction. 19 The application document was confused and confusing. It was presented as being an application by Mr Debono naming Mr Kellahan as the respondent to it, and Maspid as an additional respondent. However it was clearly an application being made by Mr Kellahan and Maspid, Mr Kellahan seemingly confusing the identification of the applicant and respondents in the substantive proceeding with the identification of the applicants and respondent to his application to extend time.as expressed as being in Mr Kellahan’s name only, not also in the name of Maspid. 20 It will be observed that the reference herein is to Directions said to have been given 16 May 2022. There are no such directions and I infer the reference was intended to be to the 17 May 2022 directions. -- 11 of 31 -- 12 [62] On 21 April 2021, the respondents were directed to comply with the directions given to them on 4 February 2021, being given until 12 May 2021 to do so. Again the respondents did not comply. [63] On 9 June 2021 the time for the respondents to comply with the direction of 21 April 2021 (effectively being the direction of 4 February 2021) was extended until 30 June 2021. Once again the respondents did not comply. [64] On 21 July 2021 the time for the respondents to comply with the direction given on 9 June 2021 (once again effectively being the direction of 4 February 2021) was yet again extended, on this occasion until 12 August 2021. Again the respondents did not comply. [65] On 26 August 2021 the time for the respondents to comply with the direction given on 4 February 2021 (such having previously been extended on 21 April, 9 June, and 21 July 2021) was further extended to 27 August 2021. Simultaneously a direction was made that if the respondents did not comply with that further extended time, they would not be permitted to file any further evidence unless this Tribunal gives permission for them to do so. Once again the respondents failed to comply with this further extended time. [66] As I have noted earlier herein, it was not until it filed its material on or about 8 September 2021 did it purport to comply with the directions for provision of its material to this Tribunal. But, as Mr Debono stated during the hearing when the 8 September 2021 document was provided to him therein, he had not previously seen it. Accordingly it was apparent then he had never been served with the document. [67] I raised this with Mr Kellahan at that time. As I understood that which he was saying to me, he did not at any time serve this document on Mr Debono because he was waiting for a sealed copy back from the Tribunal Registry to serve. [68] On my review of the material contained in the file before me from the Registry, I see there are three e-mailed communications between Mr Kellahan and the Registry staff in that regard. The first is an email from Mr Kellahan dated 20 September 2021 at 9:59 am wherein he asked the question “ … when will I receive my sealed Response back so I can serve on the Applicant?” The second is a follow up e-mail on 22 September 2021 at 12:24 pm shown to be sent as a forward of the earlier e-mail, asking this question “Can you let me know about the below ie, Sealed Response.” The third is a response from the Registry Case Manager in which the following relevant statements appear: Thank you for your e-mail and our apologies for late reply. Can you please further explain Sealed Response. … Each party is responsible for serving their own material on each other party named in the proceeding. Service of any material must be effected as soon as practicable after filing. [69] Despite the request made of Mr Kellahan to explain his reference to a ‘sealed response’, and being informed as to the requirement for service to be effected as soon as practicable after filing, there is nothing further communicated that can be found within the Tribunal file. Nor did Mr Kellahan assert that there was anything else. [70] Notwithstanding that his query as to the provision of a sealed copy of the response did not appear to have been answered, it is apparent that Mr Kellahan did not otherwise -- 12 of 31 -- 13 serve on Mr Debono the 8 September 2021 document, or separately just his statement of evidence. Nor did he do so even after being informed by way of directions issued 18 January 2022 listing this matter for hearing on 16 March 2022. It seems to me that having received those directions he could have readily informed the Tribunal and/or Mr Debono that his statement of evidence, amended response, and amended counterclaim, all which were contained in the 8 September 2021 document had not been served. This would then have alerted the Tribunal, and possibly Mr Debono, that there could be a reason why the hearing might not be able to readily proceed on 16 March 2022. [71] Given that which the respondents have stated in their written closing submission as I have noted it in paragraph [44] herein, and that which Mr Kellahan expressed in his latest application to extend time as I have noted it in paragraphs [55] and [56] herein, it appears to me that the respondents have failed to properly understand the issue. [72] Firstly, there was no prohibition on the respondents being able to rely on their further amended response and counterclaim. Whilst the document of 8 September 2021 was not formally received as an Exhibit, to the extent it contained the respondents’ amended response and their counterclaim, the content thereof was repeated verbatim in the respondents’ 15 March 2022 document which was tendered by Mr Kellahan and entered into the record as Exhibits 3, 4 and 5. [73] Secondly, the issue that arose in the hearing was not that the 8 September 2022 document could not be located in the Tribunal file, nor was it the absence of the respondent’s compliance with the Tribunal’s directions for filing of material within the time limits set. As I have just noted it, there was no prohibition on the respondents proceeding with their case in the hearing reliant on and referring to the content of the amended response or the counterclaim as they were contained in the 8 September 2021 document. Given the extent to which they were repeated in the 15 March 2022 document they became part of Exhibits 3 and 4. Such is consistent with the respondents submissions before me reliant on s28(4) of the QCAT Act. [74] The issue was with the absence of the service of Mr Kellahan’s statement of 8 September 2021 on Mr Debono sufficiently in advance of the hearing to enable him to have considered it and be prepared to deal with it in the hearing. Whilst Mr Debono did not take objection to the late provision of Mr Kellahan’s second statement of 15 March 2022, as I have noted it such going solely to the issues in the amended counterclaim, he was readily entitled to object to the tendering of the earlier statement in the absence of having never been served with it whilst also electing not to have the proceeding adjourned to allow him time to consider it. It seems to me that the respondents have simply failed to overlook this very fact in their written closing submissions, as has Mr Kellahan in his complaint to the Registry and also his latest application to extend time. [75] As I understand the respondents’ submissions they argue that by denying them the opportunity to tender Mr Kellahan’s statement of 8 September at the hearing in the absence of service of same on Mr Debono they are being denied procedural fairness. Whilst I agree that they are entitled to procedural fairness, and I also agree with their submissions as to the wide power afforded the Tribunal to accept documents into evidence as well as their submissions regarding the operation of s95 of the QCAT Act, respectfully I do not accept them as being a basis upon which I should have allowed Mr Kellahan’s statement of 8 September 2021 to be tendered as evidence. It is not an issue of them being denied procedural fairness. -- 13 of 31 -- 14 [76] In my opinion their reliance on the reasoning of the High Court in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 to which they refer me does not assist them. In that matter the Court was concerned with the question of procedural fairness in the making of a decision of an administrative character. The present matter concerns what is in effect a decision of a judicial nature made denying the respondents the opportunity to tender the written statement of Mr Kellahan in the absence of it having been served on the opposing party. But this did not deny them procedural fairness. [77] The requirement to provide a party with procedural fairness has been described as requiring that the party be granted an adequate opportunity to prepare and present its case.21 The respondents had been afforded that adequate opportunity in terms of their entitlement to prepare and provide their statements of evidence. This was achieved in the several extensions of time given to the respondents to comply with the Directions of this Tribunal to precisely do that, such including service of Mr Kellahan’s statement on Mr Debono. If this had been done, even in the circumstance that for whatever reason the 8 September 2021 document did not find its way into the Tribunal file, there would not have been any prohibition on the respondents being able to tender Mr Kellahan’s statement of that date. [78] The respondents present their arguments seemingly ignorant of their several failures to have served the statement on Mr Debono in accordance with the timelines directed and extended on several occasions up to a total of 10 months, and the knowledge that they must have been seized of as to the upcoming hearing that should have necessitated them acting quickly to inform the Tribunal and Mr Debono that the statement was in existence but not served. [79] In my opinion it was entirely appropriate for Mr Debono to object to Mr Kellahan’s statement of 8 September 2021 being tendered. It is also my opinion that whilst it was open to him to request an adjournment it was also entirely appropriate for him not to have done so. He was entitled to require the proceeding to continue and his claim heard without an extension of the substantial and significant delay already caused by the respondents’ failure to have complied with the Tribunal’s several directions for the service of the material. [80] Mr Debono’s reply submissions which I have noted in paragraph [48] herein are, in my opinion, entirely apposite to the present circumstances notwithstanding that they arise out of the consideration by the Appeal Tribunal of a question concerning the extension of time for lodging an appeal. [81] The issue is not, as Mr Kellahan is seemingly seeking to make it, about an error that has apparently occurred within the Tribunal Registry as to the receipt of his 8 September 2021 document and it not appearing within the file before me at the time of the hearing. This issue is the respondents’ continued failure to have complied with the directions to serve Mr Kellahan’s statement of that date on Mr Debono and its attempt to tender that unserved statement at the hearing such which would have necessitated an adjournment to provide Mr Debono with procedural fairness. [82] Any adjournment would not only have prejudiced Mr Debono, but would have impacted on the efficient and effective use of this Tribunal’s resources such which 21 See Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J, cited with approval by the High Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. -- 14 of 31 -- 15 should not readily be allowed to occur as a result of a party’s failure, in the present circumstances being a substantial and serious failure, to have adhered to directions and the timeline of the proceeding. [83] I was afforded a discretion to allow Mr Kellahan’s statement into evidence, but in exercising that discretion it was necessary to recognise the need for natural justice to be afforded Mr Debono thus requiring an adjournment to enable him the time to understand the case against him as it was being dealt with in that statement, or to deny the respondents the tender of that statement and allow for the continuation of the hearing that day. As was observed by French CJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, albeit in the circumstances of an application for a late amendment of pleadings but one which if allowed would have necessitated an adjournment of a trial then underway:22 … The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials … because of non-compliance with court timetables …. … In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice”, that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. Sali v SPC Ltd was concerned with a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”. Brennan, Deane and McHugh JJ went on to say: “What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.” Toohey and Gaudron JJ dissented in the result but acknowledged, by reference to GSA Industries, that: “The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants 22 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175,189. Footnotes omitted. -- 15 of 31 -- 16 waiting to be heard are pressing concerns to which a court may have regard.” [84] Those observations must not be overlooked. They apply equally to the circumstances being discussed here, and in my opinion are applicable and support the decision I made on what was effectively an application for leave by Mr Kellahan to lead evidence by way of a written statement by him that had not previously been disclosed to Mr Debono. [85] Finally, before concluding the discussion on this issue, it is necessary to note two particular aspects of the facts related to the respondents’ argument before me that they have entirely failed to make any reference to. [86] After upholding Mr Debono’s objection and directing that the hearing would continue, in addressing Mr Kellahan’s continuing complaint at the time as to his inability to properly proceed that day, I explained to him that in conducting the hearing for himself and for Maspid he remained entitled to refer to the content of his statement of 8 September 2021 and put aspects of it to Mr Debono under cross-examination. He did so, and ultimately of the eleven (11) exhibits attached to Mr Kellahan’s statement, two were tendered by him during that cross-examination and accepted into evidence.23 [87] Also, it must not be overlooked that in the respondent’s amended response of 15 March 2021, being Exhibit 3, which was not objected to by Mr Debono, there is one reference therein which refers to and incorporates “comments below in Drew Kellahan’s Statement under the heading Contract.”24 That is a reference to paragraphs 5 to 13 of Mr Kellahan’s earlier statement. Such words also appeared in the 8 September 2021 version of that response. Accordingly that part of Mr Kellahan’s of 8 September 2021 is, in my opinion, properly forming part of the further amended response and thus something I may properly consider as part of the material that is before me. [88] It is these issues that I had considered in the exercise of my discretion to deal with the very late attempts by the respondents to tender Mr Kellahan’s statement of 8 September 2021, and the basis upon which I upheld Mr Debono’s objection to that tender and his expressed desire to not adjourn the hearing but rather proceed with it that day. [89] For all of these reasons, save only for those parts of Mr Kellahan’s statement of 8 September 2021 to which I have referred in paragraphs [86] and [87] herein, and one other aspect to which I will deals with later in these reasons discussing the termination of the contract by Maspid, the content of that statement has not been considered by me in reaching the decisions I have in this proceeding. To the extent the respondents’ make any submissions in their closing reliant upon the content of that statement, whilst the submission has been read and considered it has been done so without reference to the statement other than to the extent of those parts which I have just referred to. 23 His DK-2 became Exhibit 2; DK-10 became Exhibit 6; DK-11 because Exhibit 7. It is also relevant to note that DK-3 therein is the same as Ex MDD-1 to Mr Debono’s statement which is Exhibit 1 in this proceeding. 24 See Ex. 3 para 2. -- 16 of 31 -- 17 [90] In addition, once again for all of these reasons, the latest application by Mr Kellahan for an extension of time has not been allowed, and for the sake of completeness an order to that effect will be made as part of the Decision in this proceeding. Who is the correct Respondent ? [91] In his Application for Domestic Building Dispute, Mr Debono pleaded that he entered into the contract with Mr Kellahan accordingly naming Mr Kellahan as the respondent. In his Response, Mr Kellahan pleaded that it was Maspid who executed the contract with Mr Debono, asserting that he is not the correct respondent. [92] As noted earlier in these reasons, by a Direction of this Tribunal given 12 August 2020 Maspid was joined as second respondent to Mr Debono’s application. I infer this was done given the uncertainty as to who the correct respondent was, it thus becoming an issue for determination in the substantive hearing. The Evidence [93] There is common ground as to the relevant contract document.25 Therein, the ‘Owner’s name’ is written as ‘Drew Kellahan – Maspid P/L atf The Maspid Trust’. Mr Kellahan’s name is typewritten whereas Maspid’s name is handwritten. [94] The creation of this document is as the respondents explain it in the amended response, such being unchallenged by Mr Debono:26 (a) On 11 November 2019 at 1:05 pm, Mr Kellahan emailed to Mr Debono the ‘Schedule’ to the QBCC contract document, signed by him on behalf of Maspid; and (b) On 11 November 2019 at 9:05pm, Mr Debono emailed to Mr Kellahan the fully executed copy of the Schedule. [95] The first of those two documents was shown to Mr Debono under cross examination. He did not dispute it as being correct and Mr Kellahan tendered it as evidence.27 That document shows the handwritten name of Maspid as owner alongside Mr Kellahan’s name. It also shows two signatures thereon for two owners, although the signatures are such that they cannot be read as names. There is no signature for a witness. It is not signed for the contractor. [96] The document tendered also contains the relevant terms and conditions of the QBCC Renovation Contract document, and a copy of the QBCC Consumer Building Guide. The latter is shown as having been signed by Mr Kellahan also on the date. The signature thereon below his name is similar to one of the signatures for the owners in the Schedule document. [97] The second of those two documents is that which I observed in paragraph [86] herein as being one which appeared as an Exhibit to Mr Kellahan’s disallowed statement but also which appeared in Mr Debono’s statement.28 This version of the document shows the same signatures as they appeared in the document sent by Mr Kellahan to Mr Debono to which I have just referred, and also shows a signature which reads as being 25 Ex 1 – MDD 1; Ex 2. 26 Ex 3. This is the adoption of that part of Mr Kellahan’s statement of 8 September 2021 to which I referred earlier. 27 Ex 2. 28 Ex 1 – MDD 1. -- 17 of 31 -- 18 of Mr Debono for the contractor, witnessed by a C.Petts. It also shows the signatures for the owners as being witnessed by an M. Debono. [98] In the standard form Schedule to the QBCC Contract document the following reference appears with an option to tick a box for ‘IS’ or ‘IS NOT’. The Owner IS / IS NOT a Resident Owner. [99] Under that option the following statement appears: An Owner is a Resident Owner if he/she intends to reside in the building where the Works are to be performed on, or within 6 months of, completion of the contract work. [100] In each version the box is ticked ‘IS’ thus declaring that the owner is to be a resident owner. [101] The other relevant documentary evidence is as I noted it in paragraph [8] herein, namely Mr Debono’s three written claims for payment. Copies of each of these appeared together as an exhibit to his statement.29 The first and second of these were addressed solely to Mr Kellahan as the owner. The third was addressed jointly to Mr Kellahan and Maspid as the owner. Applicant’s Submissions [102] In his written closing submissions, Mr Debono: (a) acknowledged that he prepared the contract document naming Mr Kellahan as the owner, and that Mr Kellahan made a handwritten amendment to the document by also including the name Maspid as an owner; (b) notes the Resident Owner box is ticked; (c) asserts that a company or a trust cannot reside in the building where the pool was built; and (d) asserts the contract document was signed by Mr Kellahan without any reference to him signing it in his capacity as Director of Maspid. [103] Mr Debono concludes the submission saying Mr Kellahan is the correct respondent, alternatively it is both Mr Kellahan and Maspid such that they are jointly and severally liable to pay any money found to be owing under the Contract. Respondents’ Submissions [104] The respondents’ submission on this issue are lengthy and can readily be described as reliant on legal argument premised mainly on the documentary evidence to which I have already referred under this heading save only for the progress claim documents. The essence of them can however be expressed is relatively narrow form, namely: (a) The presentation of the contract document initially by Mr Debono was his offer to Mr Kellahan for the performance of the work for Mr Kellahan; (b) That offer was not accepted by Mr Kellahan, but rather a counter-offer was made that the work be performed for Maspid; 29 Ex 1 – MDD 5. -- 18 of 31 -- 19 (c) That counter-offer was accepted by Mr Debono by his execution of the contract document as it was sent to him and him sending it back to Mr Kellahan; (d) The ticking of the Resident Owner box was done in the presentation of the first offer by Mr Debono and not changed in the exchange of the document as part of the counter-offer and acceptance of it, but this is not a relevant consideration; (e) The contract document is to be construed as a whole and not in terms of any of its parts in isolation, and thus the box being ticked in the affirmative as a Resident Owner is not a determining factor but rather merely an ambiguity to be resolved by reference to extrinsic evidence to determine the relevant intention of the parties at the time of entry into the contract; and (f) That relevant extrinsic evidence is the exchange of the draft and then signed versions of the contract Schedule document between Mr Debono and Mr Kellahan. Discussion on competing submissions [105] Whilst it should be accepted as being correct at law that a company cannot ‘reside’ in a home,30 and thus be a ‘resident owner’ for the purposes of a domestic building contract, there is no prohibition on a company being an owner for such purposes. [106] In my opinion the fact of Mr Kellahan’s name remaining in the document alongside Maspid’s name as the ‘owner’ and that ‘Resident Owner’ box remained ticked in the version of the contract document ultimately executed by both parties is not evidence of Mr Kellahan being only the owner, but rather it simply gives rise to an ambiguity in the language of the contract as to the identity of the owner, such not having a plain meaning, to be resolved by reference to extrinsic evidence of surrounding circumstances.31 [107] As the respondents have addressed it, correctly in my opinion, that relevant extrinsic evidence is the exchange of the documents between Mr Debono and Mr Kellahan as an offer and acceptance, with the last of that exchange being the relevant one whereby Mr Debono accepted the offer of Maspid to enter into a contract with it as the owner. [108] The fact that Mr Kellahan’s name, and the ticking of the resident owner box in the affirmative, remained on the document so signed is nothing more than a mistake that is readily corrected by observing the fact of the handwritten words inserted by Mr Kellahan, and the absence of them being struck out by Mr Debono when he signed and returned the document to Mr Kellahan. That is, in my opinion, sufficient to dispose of the issue. [109] As to the fact raised by Mr Kellahan in his original response to the claim that he asserts Maspid was the recipient of the progress claims in its name, the evidence shows this occurred on only the last of the three claims raised. Accordingly it is not a fact which assists in the resolution of this issue. [110] For the reasons I have just given, in my opinion the ‘owner’ for the purposes of the contract is Maspid, and thus the proper respondent in this proceeding is Maspid, not 30 Consider Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337 wherein the issue was considered in terms of the Security of Payment legislation in that State. 31 Consider the ‘true rule’ principle as laid out in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337,352. -- 19 of 31 -- 20 Mr Kellahan. Accordingly there will be an order dismissing the claim against Mr Kellahan. The Termination of the Contract [111] As I understand the evidence and arguments before me, it is common ground that the pool construction work reached the stage of completion of ‘Render top and waterline tiles’, that the relevant progress claims had been made, but they had not been paid in full. [112] Mr Debono asserts that:32 (a) On 8 January 2020 Mr Kellahan issued him with a breach notice and purported to terminate the contract; (b) On 13 January 2020 he issued Mr Kellahan with a notice of intention to terminate the contract, asserting Mr Kellahan was in breach as a result of his failure to pay the remaining $8,737.70 of that claimed, and informing him that he would terminate the contract if such was not remedied within 10 business days; (c) On 9 March 2020 he informed Mr Kellahan that Mr Kellahan’s purported termination of the contract on 8 January 2020 was a wrongful repudiation of the contract, that he accepted it and terminated the contract, further or alternatively that he terminated the contract for Mr Kellahan’s breach by failure to make the requisite payment. [113] Maspid asserts that it was entitled to send its Notice of Default on 7 January 2019 (sic) because Mr Debono was in breach of the contract for having suspended work in the absence of any lawful basis for doing so, and effectively disputes Mr Debono’s assertion of breach and termination.33 The Evidence [114] Under cross-examination, Mr Debono acknowledged that the last day he carried out any work on site was 3 December 2019, although he said that the last day he was on site was on or about 23 December 2019. He also accepted that this was the last day he carried out work because he said he had not been fully paid at that time. [115] In Mr Kellahan’s e-mail to Mr Debono’s solicitor dated 8 January 2020, shown to have been sent at 10:36 am, the following appears:34 Works not being performed diligently – Clause 26 Your client has not attended site since it laid the render on 3 December 2019. Your client has not returned to site since. Waterline tiles were delivered to site on 12 December 2019 … Breach Notice 32 Mr Debono’s statement of claim paragraphs 11 to 13. 33 Ex 3 – para’s 6 to 8. 34 Ex 1 – MDD-7. -- 20 of 31 -- 21 Attached is our Breach Notice pursuant to Clause 26. Your client should have returned to site to lay the coping and waterline tiles any time after 13 December (which was prior to the date for payment of Progress Claim 3). [116] Shown as being attached to that e-mail is a letter which is dated 7 January 2019,35 addressed to Mr Debono as being sent from Maspid, signed by Mr Kellahan as Director of Maspid, in which the following appears:36 In accordance with Clause 26 of the Contract dated 11 December ( sic) 2019, you have failed to reasonably perform the work diligently and have delayed works and failed to maintain progress to the extent that the works were not completed by the agreed Completion Date of 3 January 2020. You last attended the site on 3 December 2012. ( sic) If the works are not completed within the next 10 business days and the above breached ( sic) remedied, we will terminate the Contract without further notice to you. [117] In an e-mail sent later that same day, shown to have been sent at 2:27 pm from Mr Debono’s solicitor to Mr Kellahan, a proposal was put forward to Mr Kellahan on behalf of Mr Debono “to secure Mick’s timely return to site to complete the pool” as it is expressed therein. Part of that proposal required Mr Kellahan to pay the asserted outstanding amount, and that the balance of the contract price, for the stages of the work not then done, be paid into Mr Debono’s solicitor’s trust account by 5:00 pm on 9 January 2020. It concludes with these statements:37 If you agree to and abide by these terms, Mick will return to site to complete your pool on Friday 10 January 2020 or Saturday 11 January 2020 depending on his tiler’s availability and complete the works by 22 January 2020. If you do not agree to and abide by these terms, I will issue appropriate notices under the contract to formally suspend works and extend the time for completion of the works. [118] Notwithstanding these two documents being exhibited to Mr Debono’s written statement given in this proceeding, curiously Mr Debono makes this statement therein: The Applicant has no record of having ever received a breach notice from the Respondent and in any event the alleged breach notice would not be valid because works had ceased due to the Respondent’s failure or refusal to pay the Debt. [119] In what then appears to be a follow up e-mail dated 13 January 2020, again from Mr Debono’s solicitor to Mr Kellahan, sent subsequent to some discussions since the 35 The Breach Notice is dated on its face as 7 January 2019 but is readily read as being 7 January 2020 given the contract was not formed until November 2019. 36 There are errors with references to years in this document, but in my opinion such do not derogate from the meaning of the document as it would have been conveyed to Mr Debono. The errors are not such as to leave Mr Debono is some doubt as to what was being stated. He should readily have been able to read the document and understand the references in terms of the correct dates. 37 Ex 1 – MDD-9. -- 21 of 31 -- 22 exchange of e-mails on 8 January 2020, there was an expression of further conditions required to be met by Mr Kellahan for Mr Debono to return to site. Therein the following statements appear:38 Obviously if Mick returns to site and you do not make any payment on time, Mick will suspend work again and issue a notice to remedy breach (and same for the other payments if not paid immediately). … In the meantime I hereby give Notice under clause 26 of the Contract that Mick considers you to be in substantial breach of the contract by failing to pay is progress claims 1 … 2… and 3 … in full. The amount claimed to be due and owing under these progress claims is $8,637.70. Mick intends to terminate the Contract if the breach is not remedied within 10 business days. Further I hereby give Notice that Mick has suspended works due to your failure to pay his progress claims and requests an extension of time for practical completion for a period equal to the period of your default in payment under clause 23 of the Contract. Please provide your response to this request within 10 business days as require by clause 23.4. [120] The next relevant communication in the evidence is another from Mr Debono’s solicitor to Mr Kellahan dated 15 January 2020 in which the following statements appear:39 Nothing has changed since we last spoke. You need to pay Mick $8,637.70 (or alternatively $3,637.70 in the event you can prove that you have already paid the additional $5,000) before he will even consider returning to Site to complete your pool. One ( sic) you pay Mick $8,637.70 (or alternatively $3,637.70), we can discuss the terms on which Mick will return to Site. [121] The documentary evidence then jumps to an e-mail from Mr Kellahan to Mr Debono’s solicitor dated 31 January 2020 at 6:36 am, the content of which is short and I extract here in full:40 Further to your message, the Contract was terminated on 23 rd due to your client not returning to site within the 10 business days. [122] Later that same morning, Mr Debono’s solicitor sent an e-mail to Mr Kellahan in which the following was stated:41 … your purported termination of the contract is invalid and wrongful. 38 Ex 1 – MDD-10. 39 Ex 1 – MDD 11 40 Ex 1 – MDD 12. The subject line of that e-mail, and the attachments shown thereon as having been included with the e-mail, are the same as the subject line of Mr Kellahan’s e-mail of 8 January 2020 other than in the latter the words “and Termination Notice” were added, but there was no additional attachment added. There is not a ‘Termination Notice’ which is shown to have been issued by either of the respondents in evidence, but see the document at DK-5 attached to the document Marked for Identification ‘A’. 41 Ex 1 – MDD 13. -- 22 of 31 -- 23 [123] It is apparent that during February 2020 discussions between Mr Kellahan and Mr Debono’s solicitor ensued in an effort to get Mr Debono paid and the work restarted.42 Those efforts were, given the events that followed, clearly unsuccessful. [124] On 9 March 2020 Mr Debono’s solicitor sent another e-mail to Mr Kellahan in which the following statements appear:43 On 8 January 2020 you issued a breach notice and purported to terminate the contract but at that time my client had suspended works due to you being in substantial breach of your payment obligations and your purported termination of the contract therefore amounted to a wrongful repudiation of the contract. On 13 January 2020 I sent you an e-mail advising you that you are in substantial breach of the contract by failing to pay he progress claims 1, 2 and 3 amounting to $8,637.70 and giving notice of my client’s intention to terminate the contract if your substantial breach of the contract [was] (sic) not remedied within 10 business days. … Our client accepts your repudiation of the contract and elects to terminate the building contract. Further or in the alternative, my client hereby terminates the contract on grounds that you have failed to remedy your substantial breach of the contract by paying my client’s progress claim 1, 2 and 3 totalling $8,637.70. My client has instructed me to commence legal proceedings against you seeking damages for breach of contract and wrongful repudiation of the building contract. [125] There are also two relevant parts of the oral evidence adduced during the hearing that should be noted. [126] As to Mr Debono’s right to suspend work, Mr Debono was asked under cross- examination to identify the relevant contractual provision that entitles him to have done so. He was unable to identify any such provision and answered that question with the following question: Where does it say I cannot do it? [127] When questioned about the final communication of 9 March 2020 under cross- examination, Mr Debono confirmed that his date of termination of the contract was 9 March 2020, and once again in answer to a question as to what provision of the contract entitled him to terminate, Mr Debono answered in a similar manner to his answer regarding suspension with the following statement back to Mr Kellahan: There is no clause that says I cannot. Applicant’s Submissions [128] Mr Debono’s written closing submissions on this issue are extensive, primarily as a result of his listing of the relevant evidence. He makes the submission that the conduct of the respondents was such as to amount to a repudiation by them of the contract. He then refers me to some caselaw on the law of repudiation in support of his arguments. He concludes with these submissions: 42 See Ex 1 – MDD 14 and 15. 43 Ex 1 – MDD 15. -- 23 of 31 -- 24 The conduct of the Respondent’s generally and their e-mail to the Applicant on 31 January evinced their intention to no longer consider themselves bound by the Contract. The Applicant on the other hand plainly demonstrated his objective readiness and willingness to perform his part of the Contract being an essential requirement of a valid termination. Having regard to all of the circumstances, the Tribunal can readily conclude that the Applicant was entitled to, and did, lawfully terminate the Contract on 9 March 2020. Respondents’ Submissions [129] The respondents’ written closing submissions are also relatively extensive. Once again much of it is a reciting of the evidence. However the respondents make two curious and conflicting submissions therein. They submit that, by the email from Mr Kellahan to Mr Debono’s solicitor on 8 January 2020 at 10:36 am, Maspid terminated the contract pursuant to clause 26 of the General Conditions.44 They also say that by letter dated 23 January 2019,45 Maspid issue a termination notice to the Applicant.46 [130] They then conclude with these submissions: The contractual right to terminate will be construed strictly, particularly in cases where there is a time limit which is proposed for exercising the right. … … the Respondents properly terminated the Contract pursuant to its terms, within the appropriate time limits, and in the circumstances where there is no evidence as to any wrongful termination, it is submitted that the Respondents’ termination of the Contract was both lawful and effective. Discussion on the competing submissions [131] As I read the documentary evidence and have heard and comprehended the oral evidence, it is my understanding that: (a) Mr Debono effectively suspended the work under the contract sometime between 3 December and 23 December 2019; (b) On 8 January 2020 Mr Debono was served with a Notice under Clause 26 of the contract terms by Maspid as a result of his failure to have progressed the works since 3 December 2019, requiring him to complete the works within the next 10 business days, and informing him that if that was not achieved Maspid would terminate the contract without further notice to him. (c) In an apparent response to that Notice, Mr Debono offered later that day to return to work on 10 or 11 January 2020 and complete it by 22 January 2020 on acceptance of certain conditions, such including not just payment of the amount said then to be due and owing, but payment of the balance of the contract sum 44 Respondents’ closing submissions para 43. 45 Yet again the respondents seem to have extreme difficulty in correctly referring to the year in the date of a communication. I read this submission as a reference to a document that would have been dated in 2020. 46 Ibid para 52. Therein they refer to a document which is Annexure DK-5 to Mr Kellahan’s disallowed statement of 8 September 2021 being that Marked for Identification ‘A’. -- 24 of 31 -- 25 into his solicitor’s trust account not later than the following business day being 9 January 2020. (d) On the following Monday 13 January 2020, with those conditions seemingly not met and Mr Debono not having returned to work, Mr Debono formally gave notice to Mr Kellahan, thus in turn Maspid, that he had suspended works due to absence of payment to him; and as to the asserted breach by non-payment requiring such to be remedied within 10 business days failing which he intended to terminate the contract. (e) There was then some communications all of which are not in evidence, but which led to Mr Kellahan, and thus Maspid, informing Mr Debono that the contract had been terminated on 23 January 2020 due to the failure of Mr Debono to return to site within the requisite 10 business days. [132] The evidence and submissions are both confused and confusing. The respondents submitted that they, or as I understand the submission Maspid, terminated the contract on 8 January 2020. In the e-mail sent by Mr Debono’s solicitor to Mr Kellahan which I refer to in paragraph [124] herein he makes a similar reference to a purported termination. However, on any reading of the Breach Notice of 8 January 2020, which was signed for Maspid and sent by Mr Kellahan, it is nothing more than a notice of intention to terminate. It of itself did not communicate a fact of termination. [133] The actual performance of termination by Maspid seems to have occurred on 23 January 2020, although as I have noted it there is nothing in evidence to show that actually occurring on that day by a particular means. [134] At its highest, the evidence is that on 8 January 2020 Maspid put Mr Debono on notice of its intention to terminate if the works were not completed by 22 January 2022, failing which it would terminate the contract without further notice. It should immediately be observed that an action of purporting to terminate the contract the very next day on 23 January 2022 would be consistent with that position having been taken. [135] There is also the issue of the purported suspension of the works by Mr Debono. Mr Debono acknowledged that he had not returned to the site to perform works since 3 December 2019, even though he was apparently on site on 23 December 2019, such being as a direct result of him not having been paid. Then, in response to the e-mail from Mr Kellahan and the accompanying Breach Notice sent on 8 January 2020, Mr Debono, via his solicitor, foreshadowed issuing a notice to formally suspend works. He then does precisely that, again via his solicitors, on 13 January 2020 and appeared to, by way of further correspondence two days later, expressed a clear intention to maintain that suspension until such time as he is paid. [136] Given the premise of Mr Debono’s claim in this proceeding is that he was not paid, in my opinion I can draw the inference that he did not return to work and maintained that suspension since 13 January 2020, notwithstanding the Breach Notice received earlier requiring him to complete the works by 22 January 2020. But it also seems to me that he had suspended work prior to 13 January 2020 even in the absence of what his solicitor refers to as a formal notice of suspension. Firstly in oral evidence he confirmed he had not been back to the site since 3 December 2019 to perform any works, and in his solicitor’s e-mail of 8 January 2020 to Mr Kellahan, the language is expressed in terms of Mr Debono’s returning to site to complete the works but only upon acceptance of certain conditions being imposed by Mr Debono. Then, shortly -- 25 of 31 -- 26 thereafter on 13 January 2020 his solicitor once again expresses the requirements for certain conditions being imposed by Mr Debono to return to site, that if not complied with “Mick will suspend work again” (emphasis added) thus indicating that the works had previously been suspended. [137] He then perpetuated that suspension of the work by his solicitor’s e-mail of 15 January 2020 in which was stated that once the asserted outstanding amount is paid there can then be a discussion on the terms under which Mr Debono would return to work. [138] Three things are to be observed about this conduct by Mr Debono. [139] Firstly, Mr Debono’s conduct as evidenced by those communications is entirely inconsistent with his submission which I extracted in paragraph [128] herein that he plainly demonstrated his objective readiness and willingness to perform his part of the Contract. In my opinion his conduct demonstrated that he was not ready and willing to do so without conditions he was imposing on Maspid first being accepted and satisfied. [140] Secondly there is no express right under the terms of the contract to suspend the works. As noted in my summation of the evidence presented to me, when asked to identify a relevant provision permitting him to suspend works, Mr Debono’s response was to ask where the contract says he cannot do it. Given this response to the question, it is evident to me that Mr Debono is not aware of the contract terms under which he was contracted to perform the works for Maspid. Clause 17.3 therein is where the answer to his question is found. It is expressed in this way (emphasis added): The Contractor must diligently carry out the work under this Contract and must not, except as permitted by the Contract, delay, suspend, or fail to maintain reasonable progress in the performance of that work. [141] There is no other provision which expressly permits a suspension in the manner Mr Debono suspended the work. [142] Contrary to that provision, in my opinion based on the evidence that I have identified herein, Mr Debono has both impliedly and expressly suspended works. In doing so he has failed to diligently carry out the work and failed to maintain reasonable progress in the performance of the work. Moreover he has done so consciously on the basis that he had not been paid that which he says he was due and owing. [143] That is precisely the complaint Maspid made and relied on in its Breach Notice served on 8 January 2020, requiring Mr Debono to respond and have the works completed by 22 January 2020. Yet, Mr Debono chose not to respond and comply with the requirements of that notice but rather formalised his suspension of the work contrary to the requirement of the contract and the obligations cast upon him thereunder. [144] Thirdly, the conditions Mr Debono required be met by Mr Kellahan and/or Maspid before he would return to work, such as advance payment of the remainder of the contract sum into his solicitor’s trust account, and the imposition of other unidentified terms, were not something Mr Debono had any right to require. The terms by which the parties were to perform the contract were as dictated by the contract itself. If those terms were not being complied with, the means of resolution were as described in the general conditions. [145] In my opinion, overall this conduct by Mr Debono was sufficient for Maspid to then proceed to terminate the contract on 23 January 2020 as it notified Mr Debono was its -- 26 of 31 -- 27 intention to do should he fail to remedy the breach. The question that then arises is whether Maspid actually did so in a lawful manner. [146] In its Breach Notice it states its intention is to terminate “without further notice to you”. However, the express terms of the termination clause 26 of the general conditions requires a “further written notice given to the party in breach” to effect the termination. As I have noted it earlier in these reasons, there is no such further notice in evidence before me. However, in their written closing submissions the respondents refer to a document which formed part of Mr Kellahan’s statement of 8 September 2021 which I did not allow into evidence, said to be the relevant document. [147] Mr Kellahan did not put that document to Mr Debono during cross-examination and accordingly it was not raised with him. But, what is curious about it, whilst the Breach Notice and other relevant e-mailed communications do appear in Mr Debono’s statement of evidence and his pleaded statement of claim, his material is entirely silent on the existence of this document, save only for one aspect of his evidence and that which is notably absent from his closing reply submissions. [148] That aspect is the exchange of e-mails between Mr Kellahan and Mr Debono’s solicitor on 31 January 2020 to which I refer in paragraphs [121] and [122] herein. There is an express reference by Mr Kellahan to a termination said to have occurred on ‘23rd ’, which I infer to be a reference to 23 January, to which Mr Debono’s solicitor responds merely asserting such purported termination to be invalid and wrongful. Notably, the solicitor does not query the fact of conduct purporting to terminate or its mode of being effected. From this I infer that Mr Debono and/or his solicitor was aware of some conduct by Mr Kellahan and/or Maspid on 23 January 2020 that purported to expressly terminate the contract. [149] That being said, turning then to the respondents’ closing submissions and the express reference therein to the document said to have been sent by Maspid to Mr Debono on 23 January 2020 which is DK-5 in the document, and the absence of any point being taken by Mr Debono about that in his reply submissions, notwithstanding it is not a document formally tendered and accepted into evidence in my opinion it is open for me to find that Maspid did engage in the requisite degree of conduct to issue a second notice to formally terminate the contract on 23 January 2020. [150] In light of Mr Debono having suspended the works without having any contractual right to do so, and then refusing to remedy the breach and return to work but rather express in a formal manner his suspension of work, Maspid acted entirely correct in terminating the contract. I find that it did so on 23 January 2020 and lawfully terminated the contract that day. It thus follows that Mr Debono’s purported termination of the contract subsequent to that date was ineffective given the contract had already been terminated lawfully by Maspid applying the contractual termination mechanism. The Applicant’s entitlement to be paid his contract claim & loss of profit [151] It is trite law that upon termination of a contract it is only accrued rights that are preserved. Rights which had not then accrued cannot be the basis for a claim and the party terminating the contract is left with nothing more than a claim for damages. As Dixon J noted in McDonald & Anor v Dennys Lascelles Limited (1933) 48 CLR 457: When a party to a simple contract, upon a breach by the other party of a condition of the contract, elects to treat the contract as no longer binding upon -- 27 of 31 -- 28 him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. 47 [152] This disposes of Mr Debono’s claim for loss of profit. Put simply, there is no entitlement he has to it given he was the party in breach and it was Maspid that lawfully terminated the contract. [153] However, as I understand the contest between the parties, it is not in dispute that he had completed the stage of the work for which he became entitled to be paid his third progress claim. Consistent with the application of the High Court’s decision in McDonald & Anor v Dennys Lascelles Limited, the High Court has also confirmed in Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 that in respect of a contract containing milestone payments, any stages of a contract that had been completed by the time of termination giving rise to an entitlement to a milestone payment a contractors right to recover was limited to the amount due under the contract on completion of those stages or damages for breach of contract. [154] Whilst Mr Debono expressed his claim in the alternative in damages, he is effectively only seeking the amount he says should have been paid under the contract. As such the issue is the extent to which Maspid had paid Mr Debono against the three claims made. It is common ground that Mr Debono had claimed a total of $24,737.80. Mr Debono asserted he had only been paid $16,000 whereas Mr Kellahan stated that he, via Maspid, had paid $21,100. The difference was identified as being two payments Mr Kellahan says he paid, namely:48 (a) $100 on 12 November 2021; and (b) A second payment of $5,000 on 5 December 2019. [155] The evidence before me on this issue was relatively scarce but in my opinion sufficient to dispose of it with minimal discussion. The documentary evidence from Mr Debono succinctly identifies the payments he has received. Mr Kellahan was not able to put anything of substance to Mr Debono under cross-examination, nor did he present any evidence to me, to show on the balance of probabilities the other payments had been made. Moreover, the respondents are entirely silent on this issue in their written closing submissions. I am therefore left to infer that they abandoned their arguments to the contrary and accept that the asserted payments were not made. [156] For these reasons, in all respects I conclude that Maspid did not make these additional payments and the total right to payment accrued to Mr Debono is the claimed $8,637.70. Accordingly there will be an order requiring payment of same. The Applicant’s claims for interest [157] As noted earlier in these reasons under the heading ‘Background’, whilst seemingly somewhat confused as to the rate to be applied, Mr Debono’s claim for interest is pressed as being one under s58 of the Civil Proceedings Act 2011 (Qld). [158] Ordinarily I would not see any reason not to allow such a claim in the circumstances where an applicant is successful in prosecuting a claim for damages. But as noted the claim here is one pressed under contract for an accrued right remaining on termination 47 McDonald & Anor v Dennys Lascelles Limited (1933) 48 CLR 457 at 476-477. 48 See Ex 1 – MDD 7 to MDD 9. -- 28 of 31 -- 29 of the contract, in the alternative damages but for the same amount and on the same basis. However, given that Mr Debono was the party in breach, and it was Maspid which properly terminated the contract for that breach, Mr Debono’s claim cannot sound in damages. Thus, the circumstances dictate a reference back to the contract terms to determine the extent to which, if any, Mr Debono had an accrued right to payment of interest on the unpaid amount at the time of termination of the contract. [159] The answer to that is that he did not. Clause 20 of the general conditions provides for payment of interest on any overdue amounts at the lesser rate of an amount as set out in Item 11 of the Schedule to the contract document or the amount to be calculated in accordance with the formula as expressed in that Clause. Item 11 of the Schedule to the contract document is filled out stating the amount to be N/A, which I read as being ‘not applicable’.49 [160] On any reading of that Item, it is that the parties agreed that interest on overdue payments is not payable. Accordingly, notwithstanding that Maspid had failed to pay him the balance of the aggregate of his three progress claims, he did not accrue any right to the payment of interest thereon. Whilst not expressed in the same manner, this is the essence of the respondents’ closing written submission on this issue. [161] Accordingly there will be an order dismissing Mr Debono’s claim for payment of interest. The Respondents’ counterclaim [162] In my opinion, the respondents’ counterclaim can be disposed of also with minimal discussion. [163] As I noted in paragraphs [26] and [30] herein, as I understand the respondents’ case as it was ultimately pressed in this proceeding neither Maspid nor Mr Kellahan maintained the counterclaim in terms of the alleged delamination of the pebbling and/or cracks in the pool, the alleged loss of water, and the alleged need for an engineer to be appointed to inspect the pool and if found to be defective to order its rectification. That understanding arises from the facts of my discussion with Mr Kellahan after the close of evidence asking him to address me in his written closing submissions as to this Tribunal’s jurisdiction to appoint an engineer to inspect the pool and ascertain the extent (if any) of defective work, and his response thereto. In the respondents’ written closing submissions, whilst they noted the jurisdictional premise upon which I could order rectification of defective building work, the submissions were entirely silent on the source of the alleged jurisdiction to appoint an engineer to conduct an inspection. Moreover, the submission was directed solely to the pool depth issue.50 Simply, nowhere in the closing submissions was the issue of the alleged delamination, cracking and water loss referred to, or the asserted need for the appointment of an engineer. Accordingly, it seemed to me that the respondents had abandoned that part of their counterclaim and in my opinion I need not consider it further. [164] However if I am wrong about that, I make this brief observation. The arguments raised by Mr Kellahan are, when properly considered, nothing more than present speculation 49 See Ex 2. 50 Respondents’ written closing submissions – para’s 89 to 92. -- 29 of 31 -- 30 of defective work, and the evidence led by Mr Kellahan on this aspect of the counterclaim does not advance it in any way and is of no real value.51 There is simply no proper substantive basis for this aspect of the counterclaim to be considered by this Tribunal and the only result that is open is for it to be dismissed. [165] As to the counterclaim for the extra-over Maspid asserts it has paid to complete the works following the termination of the contract with Mr Debono, such said to be $2,878.71, there is no evidence before the Tribunal upon which this issue can be determined in favour of Maspid. The absence of evidence is in part as a consequence of my decision to not allow Mr Kellahan’s statement of 8 September 2021 wherein he refers to and provides copies of invoices said to have been issued by Kustom Pool Finishing and A1 Pool Supplies to complete the works.52 However, even if that was allowed as evidence in the hearing it would still have been inadequate and insufficient. Mr Kellahan did not attempt to present any evidence from Kustom Pool Finishing or A1 Pool Supplies as to what they did or what they supplied, or to swear to the accuracy and authenticity of those invoices, nor did he in any way cross-examine Mr Debono on that information. Put simply, there was simply nothing upon which any determination could be made in respect of this part of the counterclaim. [166] Finally, as to the issue of the pool depth and that part of the counterclaim whereby Maspid sought an order for rectification of the depth of the pool or alternatively an assessment of damages for loss of amenity in the use of the pool, in my opinion it can also be disposed of with minimal discussion. [167] I gave Mr Kellahan leave to lead evidence on this issue in terms of what he said were the notes he made in meetings with Mr Debono prior to entry into the contract, and he cross-examined Mr Debono on the issue ultimately tendering what he says are copies of those notes.53 During that cross-examination Mr Debono disputed that such discussion took place. In my opinion I need not make any definitive finding as to whether it did or did not because on the information before me I am simply unable to be satisfied that such discussion took place between himself and Mr Debono such that, even if it did occur, it was sufficient to imply a term into the contract that the pool was to be constructed to a particular depth. If the requirement for such was so fundamental and critical to Mr Kellahan, in my opinion such should have been expressed in the contract document, at the very least as part of the ‘Brief Description of the Works’ in Item 3 of the Schedule, or an identification of the requisite depth having been marked on the cross-sectional drawing of the pool in the Rogers Consulting Engineers drawing that was attached to the contract document.54 This could readily have been done by Mr Kellahan at the same time he inserted the handwritten note in the document naming Maspid as the owner. He did not and in my opinion it is not now open for him to assert the requirement after the construction of the pool has been completed. [168] For all of these reasons, the only proper order to be made in this proceeding is one dismissing the counterclaim in its entirety. 51 See Ex 5. 52 See the document Marked for Identification ‘A’ paragraph 69 and the annexure thereto. 53 Ex 6 and Ex 7. 54 See Ex. 2. -- 30 of 31 -- 31 The Applicant’s claims for legal costs [169] Mr Debono’s claim for legal costs is convoluted and confused. Whilst originally expressed solely as a claim for costs, such which I infer was simply a claim for costs of the proceeding, it morphed into a claim for the costs he has incurred in engaging his solicitor in his dealings with Mr Kellahan starting well before these proceedings commenced and continuing during the proceedings. By the time of his written closing submissions it was expressed as a claim fixed at $9,746.88. That is, on the material before me, an amount which appears to be for indemnity costs. [170] Mr Debono has provided extensive argument to me as part of his written closing submissions on this issue. The manner in which they are presented are such as would be expected in addressing the Tribunal as to why a successful party in a proceeding such as this should be awarded its costs of the proceeding. He also seeks to argue that he should be entitled to his costs because the respondents unreasonably refused to accept his offers to return to work. In my opinion, notwithstanding that extensive argument his claim for costs can be disposed of with minimal discussion. [171] Firstly, at no time has Mr Debono been legally represented in the conduct of this proceeding in this Tribunal. Whilst he has quite obviously engaged his solicitors to advise him and also act for him in his communications with Mr Kellahan, he was at all times a self-represented litigant in this Tribunal. On that basis there is no reason to award him costs of the proceeding. [172] Secondly, his claim for costs seemingly being justified by what is said to be an unreasonable rejection by the respondents of his offers to return to work is in my opinion entirely without substance. As I have already discussed, his offers to return to work were to simply do that which he was already contracted to do accompanied with requirements he sought Maspid and/or Mr Kellahan meet which were beyond that which Mr Debono was entitled to under the contract. There was simply no reason why, other than simply commerciality, that Maspid should have acceded to Mr Debono’s demands. In my opinion it was entirely appropriate for the respondents to have not accepted the proposals put forward in the e-mailed communications by Mr Debono’s solicitor. [173] Finally, his claim for costs is not properly a claim for costs but rather is a claim for damages, being that which he says he has incurred as a direct result of Maspid’s conduct. However, as I have discussed earlier in the reasons and reached a conclusion on, other than the fact of Maspid not having made the payment when it was due, it was Mr Debono who conducted himself in a manner inconsistent with, and thus in breach of, his obligations under the contract with Maspid. Much of the costs he says he has incurred arises directly as a result of his erroneous conduct. To the extent he has incurred costs on obtaining legal advice as to the issue of non-payment by Maspid, his rights in that regard were expressly governed by the terms of the contract he entered into. To the extent he sought advice as to the operation of that contract, in my opinion such is a cost to him of being in the business of contracting to build pools. [174] Notwithstanding that Mr Debono has been successful in prosecuting his claim for the amount that he says was payable to him under the contract, he has been entirely unsuccessful in the balance of his claim as a direct result of the finding that he was the one who breached the contract. However, I cannot see any reason why he should be entitled to his costs given he was self-represented in the proceeding. [175] Accordingly an order will be made dismissing Mr Debono’s claim for costs. -- 31 of 31 --