Contrast Constructions Pty Ltd v Bartlett [2013] QCAT 399

CITATION: Contrast Constructions Pty Ltd v Bartlett [2013] QCAT 399 PARTIES: Contrast Constructions Pty Ltd (Applicant) v Mr Brett Andrew Bartlett (Respondent) APPLICATION NUMBER: BD469-08 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Joanne Browne, Member DELIVERED ON: 5 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The order made by the Tribunal on 5 July 2013 is amended and the applicant, Contrast Constructions Pty Ltd is to pay the respondent, Mr Brett Bartlett the amount of $218,940.17 plus $130,363.36 in interest by 4:00pm on 5 September 2013. CATCHWORDS: BUILDING DISPUTE - Application for correction – where accidental slip or omission Queensland Civil and Administrative Tribunal Act 2009, s 135 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 5 July 2013 I ordered that the applicant, Contrast Constructions Pty Ltd pay the respondent, Mr Brett Bartlett the amount of $219,162.84 plus $130,547.35 in interest. -- 1 of 5 -- 2 [2] The amount of $219,162.84 awarded to the respondent included an amount assessed by the Tribunal for alleged incomplete and defective works that was off-set against money payable to the applicant (by the respondent) including the balance contract sum and adjustment of time costs claims also assessed by the Tribunal. [3] On 15 July 2013 the applicant filed an application seeking an order pursuant to s 135 of the QCAT Act to correct the amount awarded to the respondent on 5 July 2013 in relation to the assessed amount for incomplete and defective works, the amount of $415,429.78;1 and the amount awarded for interest, the amount of $130,547.35.2 [4] The Tribunal made directions on 16 July 2013 in relation to the filing and exchange of written submissions in response to the applicant’s application for correction. [5] The applicant contends that the Tribunal has ordered an amount in relation to the alleged value of incomplete and defective works that is in excess of an amount stated to be the respondent’s position in the agreed issues for determination handed up at the hearing on 8 February 2013. [6] The applicant further contends that the Tribunal has calculated interest payable by the applicant on the total amount assessed for incomplete and defective work and the respondent should only be entitled to interest on the net amount. [7] In relation to the first issue raised by the applicant, the applicant and respondent agreed on a list of issues to be determined by the Tribunal during the 5 day hearing. The agreed list of issues included figures representing “[a] formula after determining the disputed amount” from which the Tribunal is to determine the “amount due”. [8] The figures listed on the agreed list of issues document included amounts being “the value of defective & incomplete work” reflecting each of the parties’ position in relation to the amounts assessed, by their respective expert witnesses, for the alleged incomplete and defective works. [9] The respondent included a figure of $387,357.30 as the value of the alleged incomplete and defective works. The respondent did not specify, in the agreed list of issues document, whether the figure of $387,357.30 was inclusive of preliminaries (12%), the builder’s margin (10%) and GST (10%). [10] Each party was given an opportunity to file written submissions following directions made by the Tribunal on 8 February 2013, in relation to the agreed list of issues to be determined and the evidence before the Tribunal including issues relevant to determining the value of any incomplete and defective works; and interest payable. 1 Contrast Constructions Pty Ltd v Bartlett [2013] QCAT 322 at [97]. 2 Ibid, at [98]. -- 2 of 5 -- 3 [11] The respondent provided “final calculations” in its written submissions filed on 4 March 2013 and amended written submissions filed on 13 March 2013. The amount of the alleged incomplete and defective works included in the respondent’s amended written submission filed on 13 March 2013 is $421,643.37 – this includes an amount for preliminaries (12%), builder’s margin (10%) and GST (10%). [12] The applicant also filed written submissions on 6 March 2013 in relation to the agreed list of issues to be determined and the evidence adduced at the hearing relating to the assessed amounts for the alleged incomplete and defective works; and interest payable. The applicant also filed submissions in reply to the respondent’s amended written submissions filed on 18 March 2013. [13] I am not satisfied that the applicant has established any grounds, in its application and written submissions in support to enliven the Tribunal’s power under s 135 of the QCAT Act to amend its order made on 5 July 2013, by way of a correction. [14] The applicant has had an opportunity, in filing its written submissions including submissions in reply, to put before the Tribunal any submissions in relation to the agreed list of issues to be determined and the final calculation of figures such as the value of any assessed alleged incomplete and defective works based on the evidence adduced at the hearing; and interest payable. [15] The Tribunal has, in paragraphs [83] to [97] of its decision, clearly set out the relevant evidence before it and the evidence that it accepted or rejected in assessing the amount to be awarded for the alleged incomplete and defective items. [16] In relation to the amount of interest payable to the respondent, the Tribunal has set out in paragraphs [79] to [82] of its decision relevant findings and has ordered in paragraph [98] the amount to be allowed in relation to interest payable by the applicant. [17] The Tribunal is not satisfied that there has been “a clerical mistake; an error arising from an accidental slip or omission; or a material miscalculation of figures”, as required under s 135 of the QCAT Act. The applicant’s contentions in support of the application for correction otherwise raises issues which require reconsideration of the evidence adduced at the hearing and the findings made by the Tribunal. The Tribunal does not have the power under s 135 of the QCAT Act to reconsider the evidence having delivered its decision on 5 July 2013. [18] In considering the application for correction filed by the applicant, the Tribunal has revisited the calculation of its figures in particular the assessed amounts for the alleged incomplete and defective works. [19] The amounts claimed by the applicant and respondent in relation to the value of the alleged incomplete and defective works were based on -- 3 of 5 -- 4 assessments made by the parties’ expert witnesses. The expert witnesses’ assessments were set out in the joint experts report and following amendments made to those assessments, final figures were set out in the amended schedule of incomplete works.3 [20] The Tribunal made findings in paragraph [96] of its decision made on 5 July 2013 as to the assessed amounts allowed for the incomplete and defective items in dispute. In relation to item 182, sealer to sandstone, the Tribunal accepted the evidence of the respondent’s expert witness and allowed the “assessed amount of $7,425”. [21] The amount of $7,425 was the amount assessed by the respondent’s expert witness in the joint expert report which was later amended to be the amount of $7,260 as it appears in the amended schedule of incomplete works. The assessed amount for item 182 of $7,260 is also reflected in the respondent’s amended written submissions filed on 13 March 2013 as the amount claimed (for item 182). [22] The Tribunal has the power under s 135 of the QCAT Act to correct a decision made by it in a proceedings if the decision contains “an error arising from an accidental slip or omission”. The Tribunal has the power to act under s 135 of the QCAT Act on the application of a party to the proceeding or on its own initiative. [23] The amount of $7,425 awarded by the Tribunal in relation to item 182 in paragraph [96] of its decision is clearly an error arising from an accidental slip or omission. The Tribunal has allowed the assessed amount by the respondent’s expert witness and that amount as it appears in the amended schedule of incomplete works is $7,260 (not the amount of $7,425). [24] The Tribunal will therefore allow the application for correction to amend the amount previously awarded to the respondent, Mr Bartlett for incomplete and defective items, by deducting the amount of $165 (the difference in the assessed amount for item 182) from the total value for incomplete and defective items. The amount payable by the applicant for interest will also be corrected. [25] The amended total cost of the defective and incomplete items plus interest is: Agreed items $ 184,750.00 Plus items 85 and 430 $ 15,000.00 Plus assessed items $ 106,630.00 Subtotal $ 306,380.00 Plus preliminaries at a rate of 12% ($36,765.60) $ 343,145.60 Plus builder’s margin at 10% ($34,314.56) $ 377,460.16 3 Ibid, at [84]. -- 4 of 5 -- 5 Plus GST ($37,746.02) $ 415,206.17 Total value for incomplete and defective items $ 415,206.17 Plus interest at 10% from 15.12.09 to 04.02.13 $ 130,363.36 Final calculations [26] The Tribunal has assessed the amounts payable under the contract as follows: Adjusted contract sum $ 2,520,097.96 Less amounts paid $ 2,382,974.02 Balance contract sum $ 137,123.94 Plus ATC 18.01.07-16.07.07 $ 30,175.00 Plus ATC 14.03.08-15.08.08 $ 9,052.50 Plus ATC 15.08.08-26.09.08 $ 12,070.00 Plus ATC 02.10.08-20.12.08 $ 7,845.50 $ 59,143.00 Less defective & incomplete items $ 415,206.17 Less liquidated damages $ Nil Total $ 218,940.17 [27] The Tribunal orders that the amount awarded to the respondent by order made on 5 July 2013 be amended and that the applicant pay the respondent the amount of $218,940.17 plus interest in the amount of $130,363.36 by 4.00pm on 5 September 2013. -- 5 of 5 --