Bellamy t/as Bellamy Plumbing Pty Ltd v Burbage [2013] QCAT 649

CITATION: Bellamy t/as Bellamy Plumbing Pty Ltd v Burbage [2013] QCAT 649 PARTIES: Derek Bellamy t/as Bellamy Plumbing Pty Ltd (Applicant) v Catherine Burbage (Respondent) APPLICATION NUMBER: MCDO139/13 MATTER TYPE: Other civil dispute matters HEARING DATE: 11 November 2013 HEARD AT: Holland Park DECISION OF: Member Favell DELIVERED ON: 20 November 2013 DELIVERED AT: Brisbane ORDERS MADE: Application is dismissed. CATCHWORDS: Minor Civil Dispute – whether debt – whether agreement for additional work APPEARANCES and REPRESENTATION (if any): APPLICANT: Dereck Bellamy (Director of Bellamy Plumbing Pty Ltd) RESPONDENT: Catherine Burbage REASONS FOR DECISION [1] The applicant seeks an order that there be payment by the respondent of $1,605 in respect claimed of extra plumbing works and electrical works carried out at 9 Littles Road, Glasshouse Mountains, for the installation of a sceptic and holding tank. [2] It also seeks a filing fee of $101.40 and a service fee of $100. It also seeks interest of 10% for 735 days. [3] The respondent opposed the application on the basis that she had a quote to have the work carried out and was never approached about any extra -- 1 of 5 -- 2 work or extra charges. She says that there is no agreement for any variation. [4] The Tribunal has been supplied with quote 974 dated 2 May 2011 which was signed and accepted by the respondent. [5] The quote was for $10,515.50 being for work described as follows: Wastewater systems QLD will supply and install to Catherine Burbage at 9 Littles Pl, Glasshouse Mountains, 3000L concrete sceptic tank and 7200L holding tank 80mm PBC outlet pipe to road with ball valve. Price includes: Full installation and labour, pump out and decommissioning of sceptic tank, bedding material, excavation x 10 hours plus BSA home insurance. Price does not include removal and spreading of soil, council application fees. [6] The wording of the agreement included the following: (1) I wish to purchase the items and services described above. I note that we do not have title to the system tanks or pumps until I have fully paid the full price and system tank, pumps or irrigation pipe work may be reclaimed at any time at our costs, for our failure to pay any balance owing. (2) If, for any reason the tank cannot be craned into the hole by the sewerage system delivery truck, I agree to meet the costs in full for the hire of a mobile crane, organised by the installer. (3) The owner is responsible for the location and marking of underground surfaces. Price variation may apply for costs associated with excavation of rock, underground water or changes to irrigation design. (4) This quote excludes electrical supply in connection to the system, plumbing from house into the system, removal or spreading of excess soil, soil supplied or council application fees. (5) Responsibility for loss or damage passes to the client immediately after installation/delivery. (6) Deposit paid on acceptance is refundable minus any and all incurred costs. Full payment will be made on or before the day of delivery. [7] In the application the applicant says Derek Belamy from Bellamy Plumping Pty Ltd is seeking payment for extra plumbing and electrical works carried out at 9 Littles Roads, Glasshouse Mountains, for installation of sceptic and holding tank. Our quote did not allow for electrical works, excavation of rocks, alarm and repair of plumbing under the house, and it clearly states that. When council requested this to be done I immediately phoned Catherine requesting approval to do this and it was approved over the phone. [8] The respondent says that she was not contacted by Mr Bellamy about extra charges. She says that a global testing report and Caloundra Council plan was forwarded to assist Mr Bellamy prior to commencing work so that he could cost out and provide a quote which met with the Caloundra City Council regulations and was within her budget. She told Mr Bellamy that she would be taking out a loan for the work and that at all times he needed to be upfront and forthcoming with costs. -- 2 of 5 -- 3 [9] She says that Bellamy Plumbing was given all plans by the Council inspector prior to commencing work. She says that the plans clearly explain and state what requirements needed to be met for the installation. She says that the plans which are provided by the Council and are now exhibit one, show a typical holding and tank pump out installation. That plan includes the words: All holding tanks are to be fitted with an audio and visual alarm system. All holding tank installations must be provided with an 80mm DIA pressure pump line extended to the property boundary. If point of discharge is lower than the holding tank, a gate valve must be installed. The maximum length of pipe should not exceed 30m. The maximum vertical height allowable from the bottom of the holding tank to the pump out point or road shall not exceed 5m. If these requirements cannot be met a 3900L all-purpose sceptic tank and 450L pump well may be installed to pump uphill to the holding tank. The base of the holding tank shall be anchored with concrete to prevent lifting. [10] The global test locality plan is exhibit two. It shows the location of the two tanks and an 80mm suction line to be installed. It also includes the words „existing residents (disconnect existing sceptic system and reroute to now recommend system)‟. [11] The applicant has not provided any receipts to support the extra claim. I was told at the hearing that alarm posts as required along with a light and float cost $385, electrical work for 30 metres cost $770, extra excavation costs $300 and plumbing under the house cost $150. [12] Mr Bellamy said that he contacted Ms Burbage about the extra work after he says the council inspector required the work to be done and asked Ms Burbage whether she wanted the work done then. He said that she told him she did. [13] Ms Burbage says she was not contacted by Mr Bellamy about extra charges and she could not understand why there would be an extra charge because a conduit which apparently was part of the electrical work had already been laid. [14] In a statement that she tended which was a letter addressed to Mr Bellamy she said : in a telephone conversation we had on 30 July, Friday, where you informed me that at the final inspection the council inspector had demanded that the system was fitted with audio and visual alarm I was distressed about this and rang to speak to a council inspector to clarify the situation on the same day we had spoken, and spoke to Peter Rimes with the Caloundra Council. Peter assured me of two things, one, that he was surprised that you had informed that you had just been told that this safety device was to be installed as there had been a council inspector there the day before and he had noted that the conduit was being laid for this and that the requirement of alarm system was clearly stated in the original plans sent to you by council. [15] In my view, the quote which was given and accepted did not include the cost of electrical supply in connection with the system. I accept what Ms Burbage says about her telephone conversation with Mr Bellamy on 30 July. That seems to accept that indeed there was a telephone -- 3 of 5 -- 4 conversation as asserted by Mr Bellamy about the extra work. Ms Burbage‟s concern was that a conduit had already been laid and the requirement for alarm system had already been identified. [16] I accept that there was a telephone conversation with Mr Bellamy and Ms Burbage about the extra work. I find that it is likely that Mr Bellamy did contact Ms Burbage about the claimed extra charges. I do not however accept that all of the work described by Mr Bellamy was extra work under the accepted quote. In my view it is likely that Mr Bellamy did have the council documentation and knowledge of the council requirements. In any event as a licenced plumber operating within the council plumbing requirements, he should have had that knowledge. [17] In my view the quote properly construed was for the full installation and supply of the 3000L concrete sceptic tank and 7200L holding tank. That included, in my view, all of the plumbing requirements for the installation. In my view, the use of the term “full installation” makes that clear. [18] The accepted quote however makes it clear that electrical supply in connection with the system, plumbing from the house into the system and removal or spreading of excess soil and council application fees was excluded. [19] Mr Bellamy has not in my view proved that there was any extra excavation required outside of that excavation which was included in the price. [20] In my view the costs of the alarm posts as required along with a light and float were included in the “full installation”. [21] The electrical work was specifically excluded as was plumbing from the house into the system. In my view the latter included plumbing under the house. [22] The claim made by the applicant is a claim made as a minor civil dispute claim and in particular a minor debt claim in the minor civil dispute jurisdiction of QCAT. [23] The Tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), applied to the Tribunal to deal with the dispute.1 [24] A relevant person relevantly includes – (a) For a claim to recover a debt or liquidate demanded money – a person to whom the debt is owed or money is payable; (b) Subject to paragraph c to j, for a claim arising out of contract between a consumer and a trader, - the consumer. 1 QCAT Act s 12. -- 4 of 5 -- 5 [25] Despite what I have said above about the electrical work being excluded from the accepted quote and the plumbing work under the house also being excluded, I am not satisfied that Ms Burbage understood that she was being asked to agree to further charges or did agree to further charges in the telephone conversation of 30 July. In fact, on hearing Ms Burbage, I came to the view that there was a certain amount of confusion. [26] I was not told of any prices being mentioned to Ms Burbage nor of any extent of extra work which was required. I find that there was no agreement between Ms Burbage and the applicant that Ms Burbage would pay any liquidated amount or otherwise for the work claimed. [27] In my view, the applicant has not established that there is a debt owed or money payable. [28] Further, in my view, this work was regulated under the Domestic Building Contracts Act 2000. Domestic building work includes the renovation, alteration, extension, improvement of repair of a home.2 It also includes work associated with the renovation, alteration, extension, improvement of repair of a home and includes the provision of services or facilities to the home or the property on which the home is situated. [29] In my view the work which was undertaken here is covered by the Domestic Building Contracts Act. [30] Section 26 of the Domestic Building Contracts Act requires a regulated contract to be put into a written form. Section 27 provides for the general contents of contracts. The contract here was, it being for work greater than the regulated amount, a regulated contract. [31] Any variations to contracts are required to be in writing.3 That has not occurred here. Section 84 of that Act provides for the right of a building contractor to recover an amount for a variation. The applicant has not complied with the requirements of the Domestic Building Contracts Act with respect to variations and in such a case the building contractor may only recover an amount for the variation with the Tribunal‟s approval given on an application made as provided under the QCAT Act to the Tribunal by the building contractor. That has not occurred here. [32] I am not satisfied that there is a debt owed for the reasons that I have given above or that the money is payable. The application is dismissed. 2 Domestic Building Contracts Act 2000 s 8. 3 Domestic Building Contracts Act 2000 s 79. -- 5 of 5 --