Burnett & Heath v Fergbilt Pty Ltd (No.3) [2015] QCATA 152

CITATION: Burnett & Heath v Fergbilt Pty Ltd (No.3) [2015] QCATA 152 PARTIES: Greg Burnett and Jacqueline Heath (Appellants) v Fergbilt Pty Ltd (Respondent) APPLICATION NUMBER: APL480-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM, Presiding Member Browne DELIVERED ON: 25 September 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The order made by the Appeal Tribunal on 15 July 2015 is amended and Greg Burnett and Jacqueline Heath must pay to Fergbilt Pty Ltd the sum of $5,492.00 by 4:00pm on 29 July 2015. CATCHWORDS: CORRECTION – where decision of the appeal tribunal – where application for correction – whether accidental slip or omission Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 135 Burnett & Heath v Fergbilt Pty Ltd [2015] QCATA 104 REPRESENTATIVES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] On 21 April 2015, the Appeal Tribunal granted leave to appeal to Greg Burnett and Jacqueline Heath (the homeowners). The decision of the Tribunal made on 21 October 2012 was set aside and the appeal listed for further oral hearing.1 [2] On 15 July 2015, the Appeal Tribunal ordered the homeowners to pay Fergbilt Pty Ltd the sum of $7,766 calculated as follows: The final amount owing to Fergbilt is $7,766.00 calculated as follows: Amount owing to Fergbilt (decision made on 23 June 2014) $11,319.00 LESS variation No. 3 at $4,088.00 PLUS extra concrete at $535.00 Balance owing $7,766.002 [3] The homeowners filed an application to amend the order made on 15 July 2015.3 They say the calculation is incorrect because it did not include the amount of $2,595 for variation 7. [4] Fergbilt says that there has been no mistake in the calculations and there is no power under s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) for the Appeal Tribunal to correct the order.4 [5] In this case there has been ‘a clerical mistake; an error arising from an accidental slip or omission; or a miscalculation of figures’ as required under s 135 of the QCAT Act. This is because the Appeal Tribunal’s calculation did not include the amount of $2,274 for variation 7. [6] The Appeal Tribunal found that Fergbilt should not be entitled to claim for the concreting work in variation 7 which formed part of the contract. The relevant findings are contained in the Appeal Tribunal’s reasons made on 21 April 2015: The Appeal Tribunal has found that there was no legal basis for Fergbilt to claim the written variation 3 under the contract because the work formed part of the BA plans (in the contract). Fergbilt should not be entitled to also claim for the concreting work in variation 7 which formed part of the contract. It would not be fair to the homeowners for the purposes of s 84 of the DBC Act to allow Fergbilt to claim for variation 7 because the work formed part of the contract.5 1 Reasons for decision made on 21 April 2015. 2 Reasons for decision made on 15 July 2015, [15]. 3 Application for reopening, correction, renewal or amendment filed on 21 July 2015 and application for interim order filed on 28 July 2015. 4 Response to the application for correction or amendment filed by Fergbilt on 14 August 2015 in accordance with Directions made on 23 July 2015. 5 Reasons for decision made on 21 April 2015, [24]. -- 2 of 3 -- 3 [7] The amount of $2,274 for variation 7 should be deducted from the calculation (of $7,766) not the amount of $2,595 as contended by the homeowners. This is because the Appeal Tribunal found the learned Member (at first instance) did not allow the amount of $321 that was included in variation 7 so the final amount allowed for variation 7 is $2,274. The relevant findings are contained in the Appeal Tribunal’s reasons made on 21 April 2015: … In relation to additional concreting claimed in variation 7 the learned Member preferred the evidence of Haemish Ferguson and found that Mr Burnett had given instructions for the additional concreting in the front yard… She found that the work had been done. She was satisfied that Fergbilt would suffer unreasonable hardship and that it would not be unfair to the homeowners as the building owner for the Fergbilt to recover the amount of $2,274 for variation 7. The Tribunal’s reasons show that Mr Ferguson gave evidence that variation 7 included the increase in concrete costs between the preliminary plans and the BA plans and additional concrete instructed by the homeowners the day before the concrete works were performed…There was also an additional cost of $321.00 for concreting from variation 3 that was included in variation 7. The learned Member did not allow this amount ($321.00) because she said the cost could have been ‘reasonably foreseen by the builder’ at the time of signing the contract had Mr Ferguson ‘looked more closely at the BA plans’.6 [8] The Appeal Tribunal has the power under s 135 of the QCAT Act to correct the decision made on 15 July 2015 because it contains an error arising from an accidental slip or omission. The application for correction to amend the amount previously awarded to Fergbilt is allowed. The amended calculation is: The final amount owing to Fergbilt is $5,492.00 calculated as follows: Amount owing to Fergbilt (decision made on 23 June 2014) $11,319.00 LESS variation No. 3 at $4,088.00 LESS variation No. 7 at $2,274 PLUS extra concrete at $535.00 Balance owing $5,492.00 [9] The Appeal Tribunal orders that the amount payable to Fergbilt by order made on 15 July 2015 is amended and that the homeowners pay to Fergbilt Pty Ltd the sum of $5,492.00 by 4:00pm on 29 July 2015. 6 Ibid, [22]-[23]. -- 3 of 3 --