Evans v Vale & Anor [2013] QCAT 602

CITATION: Evans v Vale & Anor [2013] QCAT 602 PARTIES: Raymond Morgan Evans (Applicant) v Nikolas Vale and Nadine Kathryn Vale (Respondent) APPLICATION NUMBER: MCDO593/13 MATTER TYPE: Other Minor Civil Dispute Matters HEARING DATE: 30 August 2013 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 6 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Application is dismissed. CATCHWORDS: Minor Civil Dispute – Whether monies due and owing APPEARANCES and REPRESENTATION (if any): APPLICANT: Brian Fitzgibbon by leave for the applicant RESPONDENT: Nikolas Vale and Nadine Kathryn Vale REASONS FOR DECISION [1] Raymond Evans applies to the Tribunal for orders that Nikolas and Nadine Vale pay him $7,153. That amount is broken down as $4,105 as money owing, $98 as filing fee and interest of $2,905 calculated at 10% over a six year period. [2] Details of what is sought are set out in the application form as: “Option fee owing to Mr Evans on land at Lot 12 Bradley Close Laidley – $2000 Your website design paid by Mr Evans on your behalf – $1250 Rent owing by you on Mr Evans premises at 14 Mallaluca Drive Laidley and occupied by your workers as agreed six weeks at $400 – $2,400 -- 1 of 9 -- 2 Fee as agreed for Mr Evans to act as BSA nominated supervisor for building under construction at Lot 12 Bradley Close Laidley - $4,500 Total - $10 150 Less paid by you $8 000 Less dishonoured cheque 25 January 2007 $2,000 Total owing $4,050.” [3] The respondents entered into a contract on or about 7 November 2005 with Primeland Real Estate for the purchase of land at Lot 14, Bradley Close, Laidley Heights, Edinburgh Park Estate. [4] Prior to the purchase of the land, the parties had discussed the applicant becoming a nominee for the respondents so that the respondent could build a house under the applicant’s building licence. The respondent contends that the applicant did not say anything about a specific payment for being the nominee and simply wanted the respondent to cover his travel costs for attending the site to supervise and to supply materials to another building site of his. This agreement was never put in writing. The applicant was a Volunteer Supervisor as he was on a pension. [5] The respondent commenced building under his company, Mobile Building Services. [6] When the respondent was due to commence laying the slab for the house on 16 November 2006, he found a note from the applicant which said, “Nick, I formerly give you notice that I have withdrawn my builders licence from this site at 4am Thursday 16/11/06.” The respondent went to the applicant’s home, where he was told by the applicant that he wanted two cheques for $3000 or he would revoke the applicant’s BSA licence. [7] The respondent wrote two cheques for $3000 to the applicant. The cheques were undated because sufficient funds had not yet been cleared. In January 2007, when there were insufficient funds to finish the house, the BSA advised the respondent that if less than $7000 was needed to finish the house then the respondent could transfer his licence to become an owner builder. The BSA also said that the applicant could not profit from his licence by demanding the $6000 payment. Consequently, the respondent cancelled one of the cheques for $3000 (Exhibit 3). The other had already been presented. [8] The respondent alleges that the applicant threatened the respondent and his heavily pregnant wife on or about 29 March 2006 (Exhibit 11). The applicant allegedly told the respondent to sign documents declaring the applicant was one of the directors of the respondent’s company, Mobile Building Services. The applicant also allegedly demanded that the documents be backdated to when before building commenced. -- 2 of 9 -- 3 [9] “Because of the stress”, the respondent gave the applicant $3000 in cash (Exhibit 11). [10] The applicant continues to invoice the respondent for $4800 for land and other supplies (Exhibit 2). [11] The applicant submits that an option fee is owed to him for Lot 12, Bradley Close. [12] The respondents asks the Tribunal to dismiss the application based on the following: “(a) The respondents own Lot 14 Bradley Close, not Lot 12; (b) The applicant has given no dates in respect of his application; (c) The option fee is sought in respect of land that the applicant, as a person who is not a real estate agent, is not permitted to be paid; (d) The applicant withdrew his builder’s licence from the site on 16 November 2006 and the BSA has since investigated the applicant for the use of his licence.” [13] The applicant wants an option fee and outstanding invoice paid to him. The respondent wants the matter dismissed. [14] I was told at the beginning of the hearing that Mr Evans suffers from some disabilities which he suffered before 2006. [15] The applicant on 26 August 2013 sought to amend his application by altering the original figure of the claim from $4150 to $7150. The reason for that, he said, was that where he showed he had been paid $8000 by the respondent he now realises that he was only paid $5000. He says that the reason he needs to make the change is that he suffered a number of strokes and his memory is not what it used to be. [16] Mr Evans told me that he had some arrangement in respect of five blocks of land at Laidley in respect of which he would in effect get a $2000 commission. He complains that Mr and Mrs Vale approached the developer and bought the land without any involvement by him for $2000 less. He seemed to contend that the $2000 discount was because he was not to be paid his commission. [17] As part of the claim there seems to be a claim for payment to set up a website homebuild.com.au. The respondents say that a person by the name of Ann Schafer from Rams was engaged by Mobile Building System International Pty Ltd to design and host homebuild.com.au. They say they did not ask or have any knowledge of Mr Evans paying for the website design. -- 3 of 9 -- 4 [18] The respondents say that in respect of Mr Evans claim he makes a reference to Lot 12 Bradley Close Laidley when in fact their lot is Lot 14. They deny that there is any commission owing. [19] The respondents say that in respect of the claim there are no dates or particulars given. They say that insofar as Mr Evans seeks an option fee in respect of the lad he is not a real estate agent and he is not permitted to make such a claim. [20] Insofar as there is a claim for the use of Mr Evans’ builder’s licence. They say that he withdrew his licence from the site on 16 November 2006. [21] With respect to the claim for money owing for rent. The respondents say that there was no written agreement in relation to workers staying at Mr Evans’ house. They say that when Mr Evans gave notice on 16 November 2006 that he was withdrawing his building licence from the site, the workers left his house. [22] The respondents say that there was no written agreement between Mr Evans and Mr and Mrs Vale or anyone else with respect to payment for site supervision. They say that he did request that his travel costs be paid when supervising the site and asked Mr Vale to supply materials to another site in return for his services. [23] In the response to the claim, the respondents say “16 November 2006 was the day the slab was to be poured at the site. Mr Evans put a note on the site saying “I formally give you notice I have withdrawn my builder’s licence from this site at 4am 16/11/06”. The note was signed by R.M. Evans and witnessed by S. Hapurona. Mr Vale went straight to Mr Evans’ house to discuss the matter. Mr Evans would not open the front door but from the window demanded Mr Vale to write two cheques immediately, both for $3000; otherwise he would pull the pin on the job. When Mr Vale told Mr Evans he did not have sufficient cleared funds in the bank, Mr Evans then wanted one cheque to be post-dated and the other with not date. Mr Vale wrote two cheques for $3000 as Mr Evans requested. The first cheque was presented by Mr Evans and cleared. The second cheque was cancelled by Mr Vale on advice from BSA investigating Officer Greg Hunt and the builder certifier Bill Leigh. BSA conducted an investigation into Mr Evans and the way he was using his building licence is for profit. BSA investigator Greg Hunt questioned Mr Vale in relation to Mr Evans’ use of his licence and told him that Mr Evans had seven other people under his licence. Greg Hunt also said there are other reports regarding Mr Evans’ use of his licence and his conduct. It was at this point that Greg Hunt took a statement from me. Mr Evans was not performing his supervisory duties regularly and on a few occasions entered the site smelling of alcohol. 30 March 2007 Mr Evans came to Mr Vale’s house smelling of alcohol and demanding he sign some documents stating that Mr Evans is one of the directors of Mr vale’s company he also demanded that the document be back-dated to before the commencement of building at Lot 14 Bradley -- 4 of 9 -- 5 Close, Laidley heights. Mr Evans said there would be consequences if Mr Vale did not sign the documents. Mr Evans told MR vale to contact his accountant Mr Ryan Fitzgibbon and his business partner Rosco Riding. Mr Evans left but continued to call and make threats in regards to a bikie gang dealing with Mr Vale if he did not pay more money and sign the above mentioned documents. Because of the stress this caused my pregnant wife, I went to MR Evans unit and gave him $3000 cash. I thought if I paid Mr Evans we would never see him again as I had already changed my builder’s nominee and had given Mr Evans 14 days’ notice of termination. After giving Mr Evans $3000 cash eh continued calling Mr Vale after hours in an intoxicated state making threats. Mr Vale reported Mr Evans to the CIB at Dutton Park Police Station. The CIB investigator told Mr Vale that he would call Mr Evans into the station and request that he stops calling and making threats. Mr Vale did not receive any further calls from Mr Evans after this.” [24] Exhibit 1 is an invoice on the letterhead of Ray Evans. It reflects the initial claim. I note that exhibit 1, the invoice, is directed to Mobile Building System International Pty Ltd and marked to the attention of Nikolas Vale. Exhibit 2 is a letter from small business management services signed by Brian Fitzgibbon who appeared with leave on behalf of the applicant. It is dated 22 October 2012. It says: “This is to advise you that I have been appointed by Mr Ray Evans in the matter of a 2007 debt owing by you to Mr Evans and partly, but not completely, paid. Details of the debt are as follows: Option fee owing to Mr Evans on land at Lot 12, Bradley Close Laidley $2000 Your website design paid by Mr Evans on your behalf $1250 Rent owing by you on Mr Evans on Mr Evans’ premise at 14 Mallaluca Drive Laidley and occupied by your workers as agreed 6 weeks at $400 $2400 Fee as agreed with Mr Evans to act as BSA nominated supervisor for building under construction at Lot 12, Bradley Close Laidley $4500 $10150 Less paid by you $8000 Less dishonoured cheque 25/01/2007 $2000, $6000 Total owing: $4150 Plus simple interest at 7% for six years $1743 Final total owing $5893” -- 5 of 9 -- 6 [25] Exhibit 3 is a printout of a statement form an ultimate account which shows a deposit from 25 November 2006 of $3000. The account is held by the applicant. [26] Exhibit 4 is a statement on Mr Evans’ account dated 30 January 2007 which shows a returned cheque of $2000. The cheque mentioned in exhibit 4 which was returned is the cheque which appears in exhibit 5 on the account of Mobile Building System International Pty Ltd. [27] Exhibit 6 is a statement of Gregory hunt, a compliance field officer at the Queensland Building Services Authority. In part it deals with Mr Evans advertising his builder’s open licence available to acquire another licence. In the statement it is said “Vale explained during the meeting on 30 March 2007 that Evans had told him about some cheap land at Laidley and that Evans offered to sell him land at Laidley. Vale said that Evans continually rang him over a period of several weeks offering to be the nominee of the company started by Vale. Vale said during the meeting on 30 March 2007 that he purchased land at Laidley and commenced to build a residence. Vale said that Evans was continually demanding money as his commission and to act as supervisor. Vale said that just prior to pouring the slab, Vale located a note that had been left at the property (which Vale told me was 9 Bradley Close, Laidley Heights) stating that Evans was withdrawing his licence as at 4pm 16 November 2006. Vale said that Evans had not undertaken any supervision of the works or any other work s n the property at the time this note was left on the site.” It appears from the statement that Mr Evans was being investigated for his use of his licence and offering it for use by others. It also appears that he made an application in the Commercial and Consumer Tribunal application QR111-07. [28] The question of the legality of Mr Evans offering his licence for hire arose in the Queensland Commercial and Consumer Tribunal. On 6 July 2007 the Queensland Building Services Authority wrote to Mr Evans giving notice that it had cancelled his licence. The Authority alleged that Mr Evans effectively offered his licence for hire. It relied on an advertisement which appears cited in the statement which became exhibit 6 in this proceeding placed by the applicant which read: “Builder’s open licence available for Co’s to acquire own BSA licence 0417 720 295” It was alleged that Mr Evans acted as nominee for ten companies when he was not, as was required under the legislation, an officer or employee of the companies. The number of companies and the value of those companies’ turnover suggested it was said that the applicant could not have adequately supervised so much work. The Authority outlined details of alleged conversations and actions of the applicant said to demonstrate that he agreed to act as nominee for companies while knowing full well -- 6 of 9 -- 7 that he was not entitled to do so. For those and other reasons the Authority concluded that the applicant was not a fit and proper person to hold a licence. [29] On 30 August 2007 the Tribunal ordered that the operation of the decision of the Queensland Building Services Authority taken on 6 July 2007 cancelling the applicant’s licence be stayed pending finalisation of the review proceedings relating to the decision under review or until further order of the Tribunal. The order was conditional upon Mr Evans undertaking that he would not, without further order of the Tribunal, engage in any work as a licenced building supervisor other than for a number of companies, none of which is the respondent here. On 24 December 2008 the Tribunal dismissed the applicant’s application. The effect was that the Authority’s original decision that the applicant’s licence should be cancelled because the applicant was not considered a fit and proper person to hold a licence was confirmed. [30] Exhibit 7 is a copy of the contract with Wellcamp Properties Pty Ltd and Mr and Mrs Vale. It was in respect of Lot 14 on SP167433. The agent was Primeland Real Estate. The purchase price was $76000. There is no mention in that contract of any entitlement of the applicant. [31] Exhibit 8 is a copy of an invoice dated 12 September 2007 which was addressed to BSCBA and Homebuild for the website in the sum of $474. I was told that that was paid by the respondent. [32] Exhibit 9 is a print out from the QBSA site dealing with the question of “what is a nominee supervisor.” Highlighted is the statement “the nominee supervisor must be an employee, secretary or director of the company.” [33] Exhibit 10 is a copy of a search of the licensee and in particular the licence number 911 for Raymond Morgan Evans. It shows a number of entities which had Mr Evans as a nominee. One of the entities was Mobile Building system International Pty Ltd with a start date of 8 May 2006 and end date of 15 March 2007. [34] Exhibit 11 is a statement of Mr Vale given to the police on 30 April 2007. [35] In it Mr Vale said: “Around three years ago in 2004 I saw an advertisement in the Courier Mail newspaper in the business section, it related to a joint venture for building. There was a phone number to call and I called. I spoke to Ray on the telephone and we had a meeting organised at my place. He stated he was a retired builder and owned land in the Lockyer Valley area. He said if I wanted to be an investor by building houses on his property as a display home. I asked about the building licence because I have no licence; he told me that he would become a nominee. I told him I had to make some enquiries before I spoke to him again... Ray would call me every month and ask me what I am up to and if I am still interested in the joint venture. I told him I was working for other building -- 7 of 9 -- 8 companies and was not interested and did not want to take the risk. At the end of 2005 Ray had told me about the Lockyer Valley land property for sale particularly in the Gatton and Laidley areas. I came out to the area and met with Ray and looked at some land properties… Ray had told me that he would be a silent partner if I purchased land. He would allow me to work under his building licence. He said he would then share profits from the houses. I was willing to agree to this if Ray got off the pension and became a registered company. We would then split the profits 50-50 between his company and my company. Ray said to me he is not willing to take the risk because he was relying on the pension. So I decided to buy a block of land with my wife in Bradley Close, Laidley Heights. I purchased the land through Prime Real Estate…” [36] Mr Vale said in his statement: “I was supposed to commence laying the slab for the hose at 6am on 16 November 2006. I arrived at the site and saw pinned to on the sign at the site a note. The note said “Nik, I formally give you notice that I have withdrawn my builder’s licence from this site at 4am Thursday 16/11/06.” The note was signed by Ray and a witness S. Hapurona. … I took the note and went around to Ray’s house at 1 Mallaluca Drive Laidley. Ray would not open the door. He opened a window from his front bedroom and spoke to me through the window. Ray said he wanted two cheques for $3000 or he was going to pull the pin on my BSA licence. Ray knew this would mean I would go broke. … I wrote two cheques for $3000 each, I did not write a date on either cheque, simply because I had not enough cleared funds in the bank. … In January 2007 the house was nearly at lock-up stage and I did not have enough funds to finish the hose. It telephoned the BSA to ask them advice on how to resolve the problem. I told them anonymously the whole story. The BSA told me that if there was less than $7000 needed to finish the house I could transfer my licence to become an owner builder. The BSA also told me that Ray was not allowed to profit from his licence by asking me to pay the $6000. I then cancelled one of the cheques for $3000. The cheque number is 00036 from St George Bank. The other cheque had already been presented cheque number 00035.” [37] Mr Vale then goes on to talk about threats made by Mr Evans and says that “after stress on his wife and because of the threats he went to Ray’s place and gave him $3000 cash.” [38] Exhibit 12 is a statutory declaration dated 27 June 2007 in the name of Nikolas Vale. It sets out the same things which are contained in the statement to the police exhibit 11. [39] I was told that at no stage did Mr Evans become a director of Mobile Building Systems. I was also told that there was nothing in writing about any agreement for payments to be made. In all of the circumstances I am not satisfied that the claim made by Mr Evans can be made out. -- 8 of 9 -- 9 [40] There is nothing to suggest that he would be entitled to any commission or payment because of the purchase of the land. There is no receipt respondent for the payment of a website for the respondent. [41] There is nothing to suggest that Mr Evans would be entitled to any payment for use of his licence and in fact it seems likely that he was engaged in activities in that regard which were against the provisions of the requirements of his licence. [42] There is nothing to suggest that there was an agreement for the payment of rent in respect of housing accommodation. [43] In my view this is a claim which is outside six years allowed under Limitation of Actions Act for the action to be bought. In my view this is not a matter where section 29(1) applies. In other words, I am not satisfied that any disability which the applicant may have prevented the action being commenced. [44] In all of the circumstances, the application is dismissed. -- 9 of 9 --