Burnett & Heath v Fergbilt Pty Ltd [2015] QCATA 104

CITATION: Burnett & Heath v Fergbilt Pty Ltd [2015] QCATA 104 PARTIES: Greg Burnett and Jacqueline Heath (Appellants) v Fergbilt Pty Ltd (Respondent) APPLICATION NUMBER: APL480-14 MATTER TYPE: Appeals HEARING DATE: 14 July 2015 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM (Presiding) Member Browne DELIVERED ON: 15 July 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Greg Burnett and Jackie Heath must pay to Fergbilt Pty Ltd the sum of $7,766.00 by 4:00pm on 29 July 2015. CATCHWORDS: APPEAL – LEAVE TO APPEAL - BUILDING DISPUTE – where appeal on fact and law - where leave to appeal granted and appeal allowed – where decision of the Tribunal set aside – where hearing of further evidence on calculations Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147 REPRESENTATIVES: APPLICANT: Greg Burnett and Jacqueline Heath represented in person By Mr Burnett RESPONDENT: No appearance -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 21 April 2015, the Appeal Tribunal made orders about an application for leave to appeal or appeal filed by Greg Burnett and Jacqueline Heath (the homeowners). Leave to appeal was granted and the appeal was allowed. [2] The Appeal Tribunal determined that the amount of $4,088 paid by the homeowners for variation 3 should be offset from the other variations that are not disputed by them.1 [3] The Appeal Tribunal also found that there was some additional concreting the homeowners should pay for because it was not shown in the BA plans annexed to the contract and they requested that extra work.2 The additional concreting relates to the area for the ‘bins’ and the front yard of the homeowners’ property.3 The Appeal Tribunal found that Fergbilt is entitled to be paid for the additional concreting for the bins and the front yard.4 [4] The decision of the Tribunal of 21 October 2014 was set aside and the Appeal Tribunal listed the matter for a further oral hearing to receive evidence from the parties on the following issues: a) Calculations of extra concrete that did not form part of the contract; b) The rate per square metre to be applied to the extra concrete [5] There was no appearance by Fergbilt Pty Ltd at the further oral hearing. Fergbilt did, however, file further written submissions including a ‘site plan’ that shows shaded areas for the extra concreting claimed by Fergbilt.5 [6] Mr Burnett appearing on behalf of the homeowners relied on photographs that he said shows the concreting (as viewed) from the front and sides of the homeowners’ property.6 [7] The Appeal Tribunal allowed Mr Burnett’s photographs into evidence. However, the Appeal Tribunal considered only paragraphs 1 to 4 (inclusive) of Fergbilt’s further written submissions. The balance of the written submissions was Fergbilt’s attempts to raise new issues about the application for leave to appeal or appeal. As we have said, the further oral hearing was to receive further evidence from the parties about the calculations of concrete and the rate per square metre to be applied to the extra concrete. The decision of the Appeal Tribunal on 21 April 2015 is otherwise final. 1 Reasons for decision, [14] and [24]. 2 Ibid, [25]. 3 Ibid, [26] and [27]. 4 Ibid, [29]. 5 Respondent’s further submissions filed on 7 July 2015. 6 Exhibits 1 to 6. -- 2 of 4 -- 3 What is the final calculation of extra concreting and the rate per square metre to be applied? [8] Fergbilt says the additional area of concrete was 15.04 m2 and the appropriate rate is $53.50 per square metre. Fergbilt, in the written submissions, says that the ‘relevant area’ of concrete is shown in ‘Exhibit 1’ (the attached plan) and refers to the ‘handwritten shaded areas’ with handwritten measurements. Fergbilt says that only the amount of $3,538 should be deducted in relation to variation 3 and not the amount of $4,088. [9] Mr Burnett says that he measured the area of additional concrete for the bins at 2.5 m2 and the area in the front yard at 6.6 m2. Mr Burnett says he is prepared to accept a total amount of 10 m2 for the extra concreting and the rate of $53.50 per square metre as claimed by Fergbilt. [10] We prefer the evidence of Mr Burnett about the calculations of the extra concrete for the bins and the front yard. Mr Burnett explained that the shaded areas depicted on the ‘plan’ (referred to as exhibit 1) attached to Fergbilt’s written submissions is not a true reflection of the concrete that can be viewed in the photographs tendered by him. The photographs tendered by Mr Burnett clearly show the concrete along the side of the homeowners’ property being the area of extra concrete for the bins as less than that depicted by Fergbilt (in Exhibit 1). The pictures also show the extra concrete to the front of the property to be different from that depicted in Fergbilt’s Exhibit 1. [11] We accept the evidence of Mr Burnett that the area of extra concrete for the bins is 2.5 m2 and the area for the extra concrete for the front yard is 6 m2. Mr Burnett concedes there may be some inaccuracy in his calculation, and he was prepared to accept 10 m2, so we will allow 10 m2 for the concreting. [12] The final amount for the concreting is $535.00 based on 10 m2 of concrete at the rate of $53.50 per square metre. Conclusion [13] The Appeal Tribunal has allowed the homeowners’ appeal in relation to variation 3 and the amount of $4,088 that was paid by the homeowners. Because the homeowners were not successful on the other grounds of appeal, the findings of the Tribunal at first instance have effectively been preserved save for the Appeal Tribunal’s findings in relation to variation 3 and the extra concreting. [14] The Appeal Tribunal can substitute its own decision in relation to the final amount of variations to be paid by the homeowners to Fergbilt because this is an appeal on fact and law.7 In substituting its own decision, the Appeal Tribunal adopts the findings made by the learned Member in 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147. -- 3 of 4 -- 4 relation to the amount payable to Fergbilt save for the amount of $4,088 in relation to variation 3 and the amount calculated for concreting that is also payable to Fergbilt. [15] 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 $7,766.00 [16] The order will be that Greg Burnett and Jacqueline Heath pay Fergbilt Pty Ltd the amount of $7,766 by 4:00pm on 29 July 2015. -- 4 of 4 --