Arcidiacono v Caltabiano [2015] QCAT 24

CITATION: Arcidiacono v Caltabiano [2015] QCAT 24 PARTIES: Alfio Angelo Arcidiacono (Applicant) v Salvatore Caltabiano (Respondent) APPLICATION NUMBER: BDL074-14 MATTER TYPE: Building Matters HEARING DATE: 27 January 2015 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 28 January 2015 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: BUILDING DISPUTE – BURDEN OF PROOF – EVIDENCE - where previous Tribunal determination on quantum meruit basis - whether sufficient evidence of negligence and damage Domestic Building Contracts Act 2000 (Qld) s 8 Queensland Building and Construction Commission Act 1991 (Qld) s 77, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rr 48, 49 Briginshaw v. Briginshaw (1938) 60 CLR 336 Clarke v. Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 North v. Paul Bongioletti Homes Pty Ltd and Pershouse [2011] QCAT 134 Olindaridge Pty Ltd v. Tracey & Anor [2014] QCATA 207 Robinson v. Harman [1848] EngR 135 Woolcock Street Investments Pty Ltd v. CDG Pty Ltd (1984) 216 CLR 515 -- 1 of 7 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Alfio Arcidiacono appeared in person. RESPONDENT: Mr Salvatore Caltabiano appeared in person. REASONS FOR DECISION What is this Application about? [1] Verbal arrangements are fraught with risk. Proving the terms of the arrangement and any loss is problematic. This case is no exception. [2] The circumstances of this dispute are not unknown to the Tribunal. Two learned Justices of the Peace sitting in the minor civil disputes jurisdiction ordered the Applicant’s father, Mr Rosario Arcidiacono to pay the Respondent, Mr Salvatore Caltabiano $991.40 for plastering work on Mr Alfio Arcidiacono’s home.1 Mr Caltabiano is yet to be paid. [3] Mr Alfio Arcidiacono now wants Mr Caltabiano to compensate him for not doing the work properly. Mr Arcidiacono claims $2,663.79 from Mr Caltabiano comprised of: - $80.94 for extra unnecessary plaster for the job; - $1,250.00 for another tradesman to fix the work; - $515.85 to repaint the interior after being fixed; - $532.00 for two days wages to repaint the interior; and - $285.00 for filing fee of the application. What is the Tribunal’s jurisdiction? [4] The Tribunal has jurisdiction to determine a building dispute.2 This includes a domestic building dispute.3 A domestic building dispute relevantly includes a claim or dispute for the performance of reviewable domestic work or in negligence for reviewable domestic work.4 [5] ‘Reviewable domestic work’ means domestic building work under the Domestic Building Contracts Act 2000 (Qld).5 ‘Domestic building work’ 1 Decision 135/14 dated 24 March 2014. 2 Queensland Building and Construction Commission Act 1991 (Qld) s 77. 3 Ibid, Schedule 2 definition of ‘building dispute’. 4 Ibid, Schedule 2 definition of ‘domestic building dispute’. 5 Ibid, Schedule 2 definition of ‘reviewable domestic work’. -- 2 of 7 -- 3 includes the renovation, alteration, extension, improvement or repair of a home and associated work.6 [6] Mr Caltabiano agreed to plaster the lounge room, laundry, three bedrooms and a hallway of Mr Alfio Arcidiacono’s property. This improves or at least alters the property and is therefore ‘reviewable domestic work’. [7] The Tribunal therefore has jurisdiction and may award damages, interest thereon, restitution and costs.7 What is the basis upon which damages can be awarded? [8] Differing accounts were given on the work Mr Caltabiano was to do, the timeframe for him to do it, the amount he was to be paid and who would pay him. Unsurprisingly, the learned Justices of the Peace at the initial hearing were unable to determine the terms of the arrangement because of this dichotomy and uncertainty of terms. Instead, the learned Justices of the Peace found no contract but awarded payment to the builder, Mr Caltabiano on a quantum meruit basis. [9] I am not required to determine a contractual basis for liability in a claim for defective work by a homeowner. It is sufficient for Mr Alfio Arcidiacono as home owner to prove Mr Caltabiano was negligent. The purpose of damages is to restore Mr Alfio Arcidiacono to the position he would have been in had the alleged wrongful act not occurred.8 [10] Two of Mr Arcidiacono’s claims of damage can be dismissed immediately. [11] The amount of $80.94 for extra plaster purchased while Mr Caltabiano did the work is relevant only to calculating the amount to which he is entitled for doing the work. The learned Justices of the Peace have already determined the completeness of the job in determining its value on a quantum meruit basis – they reduced Mr Caltabiano’s claim of $300 per day to $250 per day. Extra materials incurred is therefore not recoverable as part of this application for defective work. [12] The amount of $532.00 for alleged loss of wages was not substantiated. Mr Arcidiacono claimed this for two days off work as a retail manager to help fix the job. He did not produce any pay slips to prove this loss. The Tribunal cannot award an amount claimed without proof of the amount and how it has been calculated: In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the 6 Domestic Building Contracts Act 2000 (Qld), section 8(1) and (3). 7 Queensland Building and Construction Commission Act 1991 (Qld) s 77. 8 Robinson v. Harman [1848] EngR 135. -- 3 of 7 -- 4 quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.9 Is there sufficient evidence of defective work or negligence by Mr Caltabiano? [13] The overriding difficulty for Mr Arcidiacono is that he has failed to adduce compelling and credible evidence to corroborate his claim that Mr Caltabiano’s work was defective or caused damage to his property. [14] Mr Arcidiacono must establish his case against Mr Caltabiano. He must prove his claim to the reasonable satisfaction of the Tribunal: … “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.10 [15] Assuming that Mr Alfio Arcidiacono was sufficiently vulnerable as a matter of law to establish that Mr Caltabiano owed him a duty of care,11 Mr Arcidiacono must then prove that Mr Caltabiano breached that duty by failing to take reasonable care, the breach resulted in damage to Mr Arcidiacono’s property and the damage was not too remote.12 [16] Mr Arcidiacono claimed three specific concerns: the plastering was too wide and too high; the external joints were not straight; and the job was not left clean. Plastering too wide and too high [17] Mr Arcidiacono claimed the plastering was “too wide and too high”. Mr Caltabiano responded that his thickness allowed “smoothing up” the job. [18] The difficulty for Mr Arcidiacono is the lack of evidence of appropriate thickness. No evidence was adduced of an agreed thickness. No evidence was adduced of the thickness damaging the property. Mr Caltabiano is a licensed builder and has performed plastering and bricklaying work for some 55 years. [19] In the absence of agreement of thickness, evidence of damage or evidence to refute Mr Caltabiano’s evidence of the appropriate thickness, it is a matter of his professional judgement of the appropriate thickness. 9 Clarke v. Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 at [3]. 10 Briginshaw v. Briginshaw (1938) 60 CLR 336, per Dixon J (as His Honour then was) at 346. 11 In Woolcock Street Investments Pty Ltd v. CDG Pty Ltd (1984) 216 CLR 515, the majority of the High Court held that “vulnerability” does not mean only that the applicant was likely to suffer damage if reasonable care was not taken. Rather, the applicant also need to prove an inability to protect himself from the consequences of the respondent’s lack of reasonable care. 12 In the builder context, see for example North v. Paul Bongioletti Homes Pty Ltd and Pershouse [2011] QCAT 134. -- 4 of 7 -- 5 External joints not straight [20] Mr Arcidiacono testified that the external joints were not straight or smooth. Mr Caltabiano refuted this and claimed that Mr Arcidiacono and his father agreed to do the sanding. [21] Mr Arcidiacono sought to rely upon five photographs of the ceiling. These photographs appear to show a line on the hallway ceiling, a faint marking on a bedroom ceiling and a ripple on a bedroom wall. The photographs are not dated and were not provided at the initial minor civil dispute hearing. Despite this, Mr Arcidiacono claims that he took the photographs several days after Mr Caltabiano left the site, although he was uncertain of the precise date. Mr Arcidiacono also explained that they were not provided at the earlier hearing because his father could not counter- claim.13 [22] The photographs appear to have been taken at close range and the size and extent of the markings are unclear. Both Mr Arcidiacono and his father worked on the site. They claimed to have engaged another tradesman to work on the site shortly after Mr Caltabiano.14 In the absence of evidence of the date when the photographs were taken, I am not satisfied that they prove that the markings are attributable to Mr Caltabiano. [23] Mr Arcidiacono also sought to rely upon a letter to him purporting to be from a Mr Greg Rafter of GG & MT Rafter P/L,15 who he claims performed plaster work on the property after Mr Caltabiano. It notes that the plasterboard “has joints, external angles, internal angles not set, sanded or finished”,16 and cornice “not finished off, internal and external corners, joints not even or level”.17 [24] I do not accept this letter as evidence to support the claim. The ostensible author of the letter, Mr Greg Rafter did not attend the hearing to give evidence. Mr Rafter did not provide a sworn statement nor was he made available for cross-examination. The letter is not signed, let alone attached to a sworn statement of evidence. [25] Although the Tribunal is not bound by the rules of evidence,18 before any weight can be attached to the letter, Mr Caltabiano is entitled to procedural fairness.19 This means Mr Arcidiacono must put Mr Caltabiano on notice of 13 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48(3) prevent a respondent to a minor debt claim from making a counter-application. However, r 49 allows the Tribunal to make orders if aware of a possible counter-claim. 14 Unsigned letter Greg Rafter to Alfio Arcidiacono dated 14 October 2013 and Tax Receipt of GG & MT Rafter P/L dated 16 October 2013. 15 Unsigned letter Greg Rafter to Alfio Arcidiacono dated 14 October 2013. 16 Ibid. 17 Ibid. 18 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(b). 19 Ibid s 28(3)(a) and see Olindaridge Pty Ltd v. Tracey & Anor [2014] QCATA 207 at [40]. -- 5 of 7 -- 6 his intention to rely upon the letter and then make Mr Rafter available for cross-examination by Mr Caltabiano.20 He did not. This has denied Mr Caltabiano the right to cross-examine Mr Rafter on matters of credit. [26] Even if the letter were admitted as evidence, it is dated almost one month after Mr Caltabiano ceased work on 19 September 2013. It does not describe the rooms or areas where the work was performed – it does not identify whether the areas requiring further work encompass the work performed by Mr Caltabiano. Moreover, it does not link the further work to Mr Caltabiano – both Mr Arcidiacono and his father also worked on the job. The letter does not prove causation: that Mr Caltabiano’s work caused the further work. [27] Mr Arcidiacono’s parents, Mr Rosario Arcidiacono and Mrs Grace Arcidiacono did testify. Their testimony mainly comprised sweeping descriptions of Mr Caltabiano’s work as “disgraceful”, “complete mess” and “did nothing right”. None of these descriptions was supported by objective evidence. [28] Mr Rosario Arcidiacono did ultimately attest that the joins were “not smooth”, while Mrs Arcidiacono attested to seeing “bumps and lumps”. However, they also each volunteered separate allegations against Mr Caltabiano unrelated to these proceedings in an apparent attempt to discredit him. This is perhaps understandable within the context of the learned Justices of the Peace decision against Mr Rosario Arcidiacono in the initial minor civil dispute hearing. Nevertheless, it shows an enmity towards Mr Caltabiano that reduces the weight that I can ascribe to their evidence. I do not accept their evidence as sufficient proof of damage. Job not left clean [29] Mr Arcidiacono claimed Mr Caltabiano left plaster on the floor and in a generally unclean state. Mr Caltabiano admitted he did not clean up. However, he claims this was because Mr Arcidiacono’s father told him not to go back as he would finish the job himself. Mr Caltabiano claims that in any event, he only left “some drops of plaster here and there”. [30] Mr Arcidiacono tendered a photograph of the hallway and a photograph of the lounge room. Mr Arcidiacono again claims to have taken the photographs several days after Mr Caltabiano left the site, although he was uncertain of the precise date. [31] While these photographs show some minor to moderate debris, they have been taken within the context of other renovations to Mr Caltabiano’s home. Both Mr Arcidiacono and his father also worked on the job. In the absence of evidence of the date when the photographs were taken, I am not satisfied that any debris in these photographs is attributable to any failure by Mr Caltabiano to clean the site. 20 Olindaridge Pty Ltd v. Tracey & Anor [2014] QCATA 207 at [43]. -- 6 of 7 -- 7 [32] Without supporting evidence, I am not satisfied the claim is proven. What are the appropriate orders? [33] I am not satisfied that Mr Arcidiacono has discharged the burden of proof by proving his claim to the reasonable satisfaction of the Tribunal. [34] The appropriate order is that the application is dismissed. -- 7 of 7 --