Cascol Constructions Pty Ltd v Blanchard & Anor [2013] QCAT 270

CITATION: Cascol Constructions Pty Ltd v Blanchard & Anor [2013] QCAT 270 PARTIES: Cascol Constructions Pty Ltd (Applicant) v Keith Blanchard Katherine Blanchard (Respondents) APPLICATION NUMBER: BDL196-11 MATTER TYPE: Building matters HEARING DATE: 17 December 2012 and 19 February 2013 HEARD AT: Brisbane DECISION OF: Michael Howe, Member DELIVERED ON: 6 June 2013 DELIVERED AT: Brisbane ORDERS MADE: The Applicant Cascol Constructions Pty Ltd pay to the Respondents Keith Blanchard and Katherine Blanchard the sum of $112,318.53 plus interest of $10,401 by 4:00pm on 7 June 2013. CATCHWORDS: UNREGISTERED BUILDER – corporate builder – hycorporate ―person‖ under s 42 QBSA Act – a corporation’s labour – registration as a builder during construction - reasonable remuneration – in pari delicto. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100 Queensland Building Services Authority Act 1991 (Qld), s 42 Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly Stork Food Systems Australia Pty Ltd) [2009] QCA 75 Nortask Pty Ltd & Speziali v Rodriguez (2008) QCCTB 250 Smith Development Pty Ltd v Moreton Island Development Group [2013] QCAT 10 -- 1 of 13 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: The applicant was represented by Mr Bowley. RESPONDENT: The respondents were represented by Ms Fitzgerald of counsel instructed by Thompson, Lawyers. REASONS FOR DECISION The Claim [1] Mr and Mrs Blanchard own a home at Shailer Park. In mid-2009 they decided to do extensive renovations and additions. The applicant company, Cascol Constructions Pty Ltd, did the work from end 2009 through 2010. Then the parties fell out over money. [2] The Blanchard's had paid $745,000 or more to Cascol by November 2010 but Cascol claimed an additional $105,120.86 remained owing. [3] Cascol commenced proceedings in the Tribunal claiming that sum. The Blanchards' counterclaimed $188,175.66 as overcharges. They also raised the issue that neither Cascol nor its director, Mr Bowley, was registered as required by the provisions of the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act). [4] Cascol withdrew its claim but the Blanchard's continued with their counter- application. At compulsory conference the issues for determination were agreed as being first, who was the builder, Mr Bowley or Cascol, and second, was either or both of those parties liable to refund money to the Blanchards’ pursuant to s 42 of the QBSA Act. Background [5] Mr Bowley is a carpenter and the director of Cascol Constructions Pty Ltd. He was introduced to the Blanchards’ by a mutual acquaintance. Mr Bowley, together with a colleague of his, Mr Cooney, had a number of meetings with the Blanchards’ over June to August 2009 to discuss the project. Mr and Mrs Blanchard say Bowley and Cooney represented themselves as being registered builders at the initial meeting in June. Both builders deny that. [6] Mr and Mrs Blanchard also say that at a meeting in August 2009 they were told by the builders a written contract was not necessary, and that is not contested. [7] In August 2009 Mr Cooney prepared an estimate of the cost of the job and gave it to the Blanchards’. Mr and Mrs Blanchard say that that was a quote and they accepted it and it formed the basis of the contract between Bowley, Cooney and them. Mr Bowley says it wasn’t his document. Mr Cooney accepts it was his but that it was simply an estimate, not a quote. [8] A draftsman was engaged to prepare plans. Mr Cooney started working at the Shailer Park home in late September 2009. Mr Bowley was away -- 2 of 13 -- 3 overseas at the time. When he returned in October he started work on the project too. Very early on the Blanchards’ had a problem with some of Mr Cooney's time charges. They dismissed Mr Cooney from the project at the beginning of November 2009. From that point on Mr Bowley took over the project, acting, he says, at all material times for Cascol. [9] The Blanchards’ maintain the cost of the works was initially agreed at $400,000 as quoted, revised to $400,446.93 in late October 2009. According to both Mr Bowley and Mr Cooney there was never any such agreement and the job was to be at cost plus 10 percent. [10] Mr and Mrs Blanchard say they agreed with Mr Bowley that additional work be done for an increased contract price of $570,000. Mr Bowley agrees extra work was agreed upon but on the same cost plus 10 percent basis. [11] Over the period November 2009 to November 2010 the Blanchards’ say their financial records show they paid Cascol $745,0001 though on a perusal of Cascol's bank records,2 it appears they paid more, and different figures have been suggested. My calculation of the amounts so paid from an examination of Cascol’s bank records commencing 29 October 2009 and concluding 18 November 2010 is they paid $754,274.50. [12] No development approval for the work was obtained. On 30 August 2010 Council officers attended the Shailer Park property and issued a stop work order. Mr and Mrs Blanchard maintain that was the first time they became aware there were no approvals and that neither Mr Bowley nor Cascol was a registered builder. [13] Mr Bowley applied for builder registration and on 15 September 2010 both he and Cascol became licensed builders "Carpentry". On 16 November 2010 licensed builders "Builder – Low Rise". [14] The parties fell out over the final work and monies necessary to finish the project in December 2010. Section 42 Queensland Building Services Authority Act 1991 (Qld) [15] Section 42 provides as follows: (1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act. (3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so. (4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed— (a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and (b) does not include allowance for any of the following— (i) the supply of the person’s own labour; 1 Exhibit 4 Affidavit of Keith Blanchard at 32. 2 Exhibit 18 reference ―cc32‖. -- 3 of 13 -- 4 (ii) the making of a profit by the person for carrying out the building work; (iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and (c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and (d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit. [16] It is clear that the work done at the Shailer Park property was building work as defined by the QBSA Act. It is also clear that neither Cascol nor Mr Bowley were licensed as required by that Act for most of the period when that work was done. [17] Subject to s 42(4) of the QBSA Act, the person who carried on building work at Shailer Park whilst unlicensed is not entitled to any consideration for that work. The Builder [18] Whilst the question whether the builder was Mr Bowley or his company Cascol was a live issue in the early stages of this application, by the time of hearing there was no serious issue taken about Cascol being the builder. [19] An application was made in May 2012 to join Mr Bowley as second respondent, but that application failed. Other than an early payment to Mr Cooney when he was involved in the project, the Blanchards’ paid all monies to the account of Cascol. Cascol features as contractor throughout the paperwork associated with subcontractors and suppliers. Mr Bowley maintains Cascol was the contractor. [20] In so far as it is necessary I conclude that at all material times the builder performing work at the Shailer Park property after Mr Cooney left the site was Cascol, not Mr Bowley. Evidence of Reasonable Remuneration [21] The live issue during hearing was whether Cascol was entitled to retain reasonable remuneration for any of its work. Counsel for the Blanchards’ submitted the evidence tendered by Cascol in support of its claim was not appropriately tendered by way of affidavit and should not be considered in assessing reasonable remuneration.3 [22] Two large volumes of copy invoices, receipts, bank records and other documents including indexes with reconciliations of payments made to Cascol’s bank records were filed prior to the hearing by Cascol.4 The documents had been called for by Mr and Mrs Blanchard for some time before that. Mr Bowley was cross-examined in detail on many of the documents and their contents. Detailed submissions were made by the solicitors for the Blanchards’ based on those documents prior to hearing. 3 Transcript at p 22. 4 Exhibit 18. -- 4 of 13 -- 5 [23] In conducting a proceeding the Tribunal is not bound by the rules of evidence and may inform itself in a proceeding in any way it considers appropriate.5 Not once during hearing was complaint raised about workmanship. It is obvious a great deal of work was done for Mr and Mrs Blanchard at their property. [24] Cascol did not call a quantity surveyor to give evidence as to the value of the work done, either as to labour or materials, however Mr Bowley is a builder and he gave evidence that he endeavoured to obtain the cheapest prices possible during the project. [25] Mr Blanchard gave evidence that he and his wife were conscious of the price of the work in order to keep their costs reasonable. He gave evidence that Mr Bowley was advised to do the best he could to make sure they weren't overcharged for work by contractors or suppliers.6 [26] Mr Blanchard also admitted that he met daily with Mr Bowley or almost daily.7 [27] There was also evidence that Mr and Mrs Blanchard had a clerk enter financial information concerning the project into a spreadsheet.8 [28] Much was made by Mr Bowley of Mr and Mrs Blanchard's ownership of a RAMS Home Loan business. Mr Bowley endeavoured to show the Blanchards’ knew there should have been a written contract and also perhaps that they knew Cascol was not registered or they should have enquired as to whether or not Cascol was registered. I conclude the circumstances of this matter fall far short of the possibility suggested by His Honour Justice Keane in Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly Stork Food Systems Australia Pty Ltd)9 that a person who knowingly engages an unlicensed builder to carry out building work in contravention of s 42 may be held to be in pari delicto (in equal offence) with the builder so as to be outside the class of people for whose benefit a right of recovery is made available in consequence of the operation of s 42(3). [29] Mr Blanchard gave evidence that he did not know that the builders were unlicensed and I accept that and that Mrs Blanchard was in similar ignorance. That disposes of the issue of in pari delicto. However I also conclude that Mr and Mrs Blanchard are seasoned business people and that they kept careful look out in respect of the expenditure associated with their home extensions. They terminated the services of Mr Cooney on a suspicion over his time charges without apparent hesitation very early during the construction. [30] I do not accept Mr Blanchard's evidence that he did not sight or had no access to any of the invoices tendered by Mr Bowley on behalf of Cascol as evidence of the expenditure incurred on the job prior to this application being brought. I find that entirely unbelievable. On this point I prefer the evidence of Mr Bowley that all invoices and other documents associated with the job 5 s28 QCAT Act. 6 Transcript at p 87. 7 Transcript at p 93. 8 Affidavit of Bayleigh Vedelago Exhibit 16. 9 [2009] QCA 75 at [58 – 59]. -- 5 of 13 -- 6 were provided or made available for Mr and Mrs Blanchard’s inspection during construction. [31] I therefore accept in all the circumstances the copy invoices and other documents filed by Cascol comprising Exhibit 18 is appropriate material to be considered to determine what reasonable remuneration may be claimed by Cascol for the work done. There is one rider to that, and that is the documents must speak for themselves save such as for example generic cash dockets attributable to, say, hardware purchases. Estimate or Contract Amount [32] Mr and Mrs Blanchard maintain there was an agreed price for the work which was $570,000 including variations. Accordingly they say pursuant to s 42(4)(c) they are entitled to a refund being the difference between the agreed price of $570,000 and the amount they paid which I have found to be $754,274.50. [33] Mr Cooney gave evidence that he prepared an estimate of $400,000 for the job in late August 2009. He did not consider it to be a quote or price for the job but simply an estimate of what it would cost. Mr and Mrs Blanchard maintain it was a quote and became the agreed cost of the job. [34] I accept the evidence of Mr Cooney in this regard. The original estimate document for $400,000 was not part of the evidence provided to the Tribunal, but rather reliance was placed on an amended version which bore a date 18 October 2009 exhibited to an affidavit of Mr Blanchard. That document dated 18 October 2009 is entitled "K and K Blanchard Cost Estimations". I also note it is divided into columns and one such has a heading "10%". [35] Mr Cooney's evidence was that the project was to be cost plus 10% on all labour and materials. Mr Cooney admitted under oath that all parties including Mr and Mrs Blanchard discussed the requirement to obtain building approval and agreed to ignore it. According to Mr Cooney there were cost savings available to the owner in forgoing such but additionally an unregistered builder could not obtain building approval and neither he, Mr Bowley nor Cascol were registered. Mr Cooney's evidence was that he believed Mr and Mrs Blanchard knew they were not licensed but he was unable to point to any specific discussion in support of that belief. [36] Though Mr Cooney admitted he was knowingly in breach of the requirements of the QBSA Act in performing building work though not registered, he impressed me generally as still an honest witness though suffering some degree of embarrassment with his evidence. I accept Mr Cooney’s evidence in preference to that of Mr and Mrs Blanchard where it conflicts. [37] Accordingly I accept there was no initial price for the job of $400,000. I accept Mr Cooney agreed to perform building work on a cost plus 10% basis. I also accept Mr Bowley's evidence up to a point that he took over the project from Mr Cooney on a similar basis. I do not conclude however that he was told by the Blanchards’ it was cost plus 10% for Cascol. He was told by Mr Cooney when Mr Cooney left the job that that was the arrangement with -- 6 of 13 -- 7 Mr Cooney.10 I conclude the matter of a 10% management fee was never actually discussed between Mr Bowley and the Blanchards’.11 [38] Had Mr Bowley agreed to take a 10% project management fee, it is only logical he would have billed that charge throughout the long period of the project, and he did not. Mr Bowley accepted as much in his evidence when he agreed there was no agreement with the Blanchards’ to charge ―administration fees‖12. [39] I also note, because it will become relevant, that Mr Cooney gave evidence that he was paid money by Mr and Mrs Blanchard in advance of expenditure and I conclude that was also the same arrangement with Cascol. Given my finding that Cascol was not to receive a 10% project management fee, the remuneration to Cascol was limited to charging out Mr Bowley’s time as a carpenter on the job. It is not believable to therefore suggest, as have the Blanchards’, that Cascol was to spend its money in advance on the job, at times up to $50,000, and then recover its expenses from the Blanchards’ when Cascol was simply being paid a carpenter's wage. [40] Given my conclusions above I do not find that pursuant to s 42(4)(c) Mr and Mrs Blanchard are entitled to a refund of the difference between an agreed price of $570,000 and the amount they paid of $754,274.50. Payments Post Registration [41] After the Council stop work order of 30 August 2010, Mr Bowley and Cascol applied to the QBSA and became licensed builders "Carpentry" on 15 September 2010 and licensed builders "Builder – Low Rise" on 16 November,2010. [42] Mr and Mrs Blanchard made three payments to Cascol after Cascol became a licensed and registered builder "Carpentry", $50,000 on 23 September 2010, $50,000 on 21 October 2010 and $25,000 on 18 November 2010. [43] Mr Bowley gave evidence that registration as a builder "carpentry" was the only necessary registration for the work performed at Shailer Park. That wasn't challenged. Accordingly I find that after registration as a builder "carpentry" on 15 September 2010, Cascol was not working in breach of s 42 of the QBSA Act and those sums paid after 15 September 2010 totalling $125,000 are not moneys recoverable by Mr and Mrs Blanchard pursuant to s 42(3). The greatest amount Mr and Mrs Blanchard may therefore recover is the moneys they paid prior to 15 September 2010, that is $629,274.50. [44] Mr and Mrs Blanchard claim Cascol did not complete the last of the work they paid it to do.13 They say they had to pay someone else an additional $16,000 to have that finished. No evidence was tendered by the Blanchards’ about this and given my conclusion that Cascol was a registered builder for the last part of the work, and there was no fixed price for the work, it becomes 10 Transcript at p 18. 11 Transcript at p 44. 12 Transcript at p 45. 13 Exhibit 4 Affidavit of Keith Blanchard at 47. -- 7 of 13 -- 8 irrelevant to the s 42 issue which was the issue in dispute at the time of hearing. [45] Whilst the date of registration as a builder is a relevant date, I recognize some payments made by Cascol after 15 September 2010 should also be taken into account in determining reasonable remuneration. I have concluded Cascol was paid in advance. Up to the time of the fresh advance of $50,000 on 23 September 2010, Cascol was paying for the job from moneys advanced by the Blanchards’ prior to registration ($50,000 was paid on 27 August 2010) and the Blanchards’ claim all those earlier payments back. It is only appropriate to allow outlays incurred by Cascol using those advances as reasonable remuneration where that would be the case had Cascol never obtained registration. [46] The calculation of those overlapping payments I propose to deal with at conclusion, to avoid confusion. Reasonable Remuneration [47] Accordingly I turn to a consideration of what reasonable remuneration Cascol may keep from the claim by the Blanchards’. [48] As stated the solicitors for Mr and Mrs Blanchard filed detailed submissions about the voluminous material filed by Cascol. Those solicitors have in most cases provided totals calculations in respect of the various heads of claim, and I adopt those totals as true amounts given similar calculation was not done by Cascol. Air-Conditioning [49] The claim here is for $6,292.14 Cascol produced a copy of an invoice and statement from Ryan Collison Air Conditioning. The invoice is dated 17 June 2010 and refers to work at the Shailer Park property. I accept that work was done, the invoice raised has been paid by Cascol and the claim is reasonable remuneration Cascol is entitled to retain. There is no suggestion the claim is inflated or not at arm’s length. Brickwork and Concrete [50] This claim totals at $57,603.72.15 I am satisfied there are appropriate supporting documents to evidence the work and payments made, save items 14 and 15 are double entries. Accordingly one of those amounts of $1,215.50 must be disallowed. [51] However a number of the payments making up the claim are payments made by Cascol after Cascol became registered as a builder. Therefore they should not be taken into consideration when determining reasonable remuneration. Items 2 through 13 postdate the registration. They total $8,482.41. Under this head of claim items 14 through 61 are appropriately allowable as reasonable remuneration and this head of claim is appropriately allowed at $47,905.81. 14 Exhibit 18 reference ―cc11‖. 15 Exhibit 18reference ―cc12‖. -- 8 of 13 -- 9 Hardware Store Purchases [52] The claims here amount to $21,808.65.16 The expenditure is generally identifiable in Cascol’s bank statements. Mr Bowley relies on them as expenditure for the Shailer Park job and I accept they were such. I accept cash or card payments like these are made by tradesmen in the usual course of building work. [53] Some of the items postdate Cascol’s registration and should not be included in any calculation of reasonable remuneration referable to the period prior to registration. Excluding such leaves a possible amount available of $20,840.88. [54] The Blanchards’ also dispute some items on the basis they are for purchase of tools, not consumables used in the job. That is true for most of the items complained about but not all. I agree that such payments should not be charged to the job. I consider an amount of $1,200 should be subtracted from the claim on that basis. That leaves $19,640.88 claimable. [55] Mr and Mrs Blanchard further complain that numerous items have illegible supporting receipts. One is unable to link the amounts claimed by Cascol to any products used at Shailer Park. I agree. I do not allow them. However I consider those receipts complained about in cc13 numbered 175, 234, 241, 259, 270, and 406 are sufficiently legible, as too is part of receipt 282. In end result illegible receipts amount to $11,321.25. Accordingly Cascol is entitled to finally retain under this head of claim $8,319.63. Carpentry and Labour [56] Throughout the project Cascol invoiced Mr and Mrs Blanchard for the labour of Mr Bowley. Those invoices are contained in Exhibit 18 reference cc16. At the conclusion of the project Mr Bowley invoiced Cascol for his labour throughout the project.17 [57] Exhibit 18 reference cc14 includes invoices from independent contractors Eastco, Scott Jackson, Luke Wolfe and Jackson Parker. Cascol’s bank statements show it paid those independent contractors the monies claimed in their invoices. Those payments should be allowed Cascol as reasonable remuneration. They total $33,953.55. [58] Mr Bowley’s invoices to Cascol are not similarly recorded as paid. [59] In Cook’s Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QSC 179 at first instance, one of the parties raised with his Honour Justice Martin the question how "supply of the person’s labour" referred to in s 42(4)(b)(i) applies where the builder is a corporation. The comments made by his Honour that follow are obiter. His Honour said, whilst s 32D of the Acts Interpretation Act 1954 (Qld) provides that a reference to a person generally includes a reference to a corporation, the reference to "person" in s 42(4)(b)(i) should be read as a reference to an individual.18 To read 16 Exhibit 18 reference ―cc13‖ and reference ―cc20‖. 17 Exhibit 18 reference ―cc14‖. 18 At [309]. -- 9 of 13 -- 10 "person" as a corporation would be to deny the costs associated with employment of workers. Unreasonable labour costs are dealt with in s 42(4)(b)(iii). [60] His Honour's remarks must be understood in the context of the facts of the matter before him. That matter did not involve a one-man director/worker company. [61] There are a number of decisions where the value of the "labour" undertaken by a "controlling mind and soul director" of a corporate builder has been excluded pursuant to s 42(4)(b)(i),19 however it is not made entirely clear how the conclusion in those matters was reached. [62] I concur with his Honour Justice Martin's comments insofar as they are to be understood to refer to situations where the financial records of the corporate builder show employee payments at arm's-length. Where that is not the case however, and charged costs of labour are not appropriately evidenced and proven, such costs must, by default, in the absence of evidence to the contrary, be deemed either profit to the corporate builder in breach of s 42(4)(b)(ii) or unreasonably claimed labour costs in breach of s 42(4)(iii). To conclude otherwise is to interpret s 42 without regard to the spirit and intention of the provision. [63] Here there is no sufficient financial evidence indicating Cascol paid Mr Bowley his labour costs pursuant to Mr Bowley’s invoicing, or that it has ever paid him or other employees, arm's-length wages or salaries. There is no evidence Cascol was ever put to such costs. The onus to prove that was on Cascol.20 There is one exception and that is an invoice21 from Mr Leon Glover to Cascol dated 2 July 2010 in an amount of $1,000.50. An internet transfer in that amount appears in Cascol’s bank statements on that day. I allow that one employee cost. Accordingly in my opinion the costs invoiced by Cascol to Mr and Mrs Blanchard for labour, other than the costs of sub- contractors as previously mentioned, and the one charge for Mr Glover, are not proven to be items of reasonable remuneration able to be retained by Cascol. Cash Sales [64] Exhibit 18 reference cc15 lists invoices and receipts associated with various cash purchases and payments. They are not evidenced in the bank records given they are cash payments. Mr Bowley gave evidence that he was instructed by Mr Blanchard to pay cash for labour and materials where possible to achieve cheaper rates if possible.22 I accept that was said to him despite Mr Blanchard's denial. [65] I accept those cash sale items listed in cc15 which visibly link to the jobsite at Shailer Park or to Mr or Mrs Blanchard should be allowed as paid for and used at the job by Cascol. They seem reasonable to me. Those that do not 19 Nortask Pty Ltd & Speziali v Rodriguez (2008) QCCTB 250 followed by Smith Development Pty Ltd v Moreton Island Development Group [2013] QCAT 10. 20 Cook’s Construction per Keane JA at [62]. 21 Exhibit 20. 22 Transcript at p 41. -- 10 of 13 -- 11 have any appreciable connection with the Shailer Park job or the owners (for example items 3, 4 and 12) are not allowed. However items 3, 4 and 12 postdate Cascol’s registration anyway and are therefore outside consideration. Those that do fall for consideration total $13,600 and are allowed as reasonable consideration. Acceptable Claims [66] There are other bundles of invoices which I conclude should be allowed. These are contained in Exhibit 18 reference cc17, cc19, cc22, cc26, cc28, cc29, cc30, cc31A, cc31B and cc31C. The claim evidenced in cc31D is entirely post registration and is excluded from consideration. [67] Generally the items aforementioned have supporting documentation and are noted as paid in Cascol's bank statements. The entire amount claimed (excluding cc31D) amounts to $238,884.22. They appear to me to be relevant, reasonable and necessary for the job. No specific issue is taken with them by Mr and Mrs Blanchard other than a cash receipt for $180 in cc31C item 2. This postdates Cascol’s registration and is therefore excluded from calculation anyway together with a number of other entries in the various bundles of documents post 15 September 2010. [68] I calculate the total of the invoices raised prior to 15 September 2010 that should be allowed as reasonable remuneration under this head is $210,599.26. Engineers and Certifiers [69] There are costs claimed for engineers, certifiers and for drafting. A claim for BSA home warranty insurance premium was disputed given its late payment in 2011. Given this date of payment it is excluded from consideration, not I might say because it was an inappropriate payment by Cascol as builder, but simply because it does not come within the calculable period. [70] Those payments made prior to 15 September 2010 are sufficiently evidenced and appropriate to be allowed. They total $5,815. Hire Services [71] The claim for hire services23 is documented and supported by Cascol’s bank statements. Those items predating registration come to $11,256.40 and are allowed. Landscaping, Plumbing, Painting, Plaster, Tiles and Timber [72] I conclude the matters of claim encompassed by Exhibit 18 references cc24 cc25, cc27, cc31 and cc31A are appropriately attributable to the work done for the Blanchards’. They have supporting invoices reconciled with the bank records. Claims amounting to $22,005.05 however postdate registration and are not included. 23 Exhibit 18 referent ―cc21‖. -- 11 of 13 -- 12 [73] There are also a number of minor problems with illegible invoices. Such claims are also disallowed. Hence cc24 item 18 for $257.55 is illegible. Cc25 items 5 and 6 are illegible and total $138.49. In cc27 there are 3 illegible dockets, 15, 38 and 42, totalling $1817.25. In respect of cc31, I am unable to locate item 2 of which Mr and Mrs Blanchard complain. [74] Accordingly in respect of allowable items the total allowed as reasonable remuneration is $170,294.94 under these heads of claim. Outstanding Invoices [75] Exhibit 18 cc31E is entitled outstanding invoices, but I am unable to reconcile the amounts claimed there totalling $29,344.16 with any payments made by Cascol and recorded in their bank statements. Nor is there any reference to such payments in Mr Bowley’s personal bank statements. To my mind the money claimed relate to invoices concerning the job which have never been paid by Cascol nor will be paid by Cascol. Accordingly they should not be included in the calculations. Reasonableness [76] Generally I conclude by saying the costs set out above that I have allowed as reasonable remuneration seem reasonable, appropriate and necessary expenditure taking into account the work that was done at the Shailer Park property. [77] Accordingly I summarise the items of reasonable remuneration allowed to Cascol as follows: Air-conditioning $6,292.00 Brickwork in concrete $47,905.81 Carpentry and labour $34,954.05 Hardware stores $8,319.63 Cash sales $13,600.00 Acceptable claims $210,599.26 Engineers and certifiers $5,815.00 Hire services $11,256.40 Landscaping plumbing painting plaster tiles and timber $170,294.94 TOTAL $509,037.09 -- 12 of 13 -- 13 Effective Date [78] As stated previously, appropriate payments made between date of registration, 15 September 2010, and the first advance of monies during registration, 23 September 2010, should also be taken into consideration to determine reasonable remuneration. [79] As such, in respect of hardware sales an additional sum of $16.49 should be added, by way of cash sales $995 and in respect of those items grouped under the heading Acceptable Claims $910,24 $627,25 $4,27026 and $1099.5427. Those amounts total $7,918.88. [80] This brings the total of all items claimable as reasonable remuneration to $516,955.97. Conclusion [81] As stated previously, the total amount paid to Cascol during the period when Cascol was in breach of s 42(1) of the QBSA Act was $629,274.50. Of that amount $516,955.97 represents reasonable remuneration which Cascol is entitled to retain pursuant to s 42(4) of the Act. Cascol must however refund the balance, namely $112,318.53. [82] The Blanchards’ seek interest on any award to them. Interest on awards such as the present matter has been previously granted28 but the matter is discretionary. I allow a commercial rate of 5% on the sum owed from date of filing of the counter-application on 27 July 2011, when a claim pursuant to s 42 was first raised, which I calculate at $10,401. [83] In respect of costs, such are also discretionary based on the interests of justice. I apply the usual presumption and each party should bear their own costs.29 In so far as an adjournment occurred because of a failure by Cascol to abide orders to file documents, an order as to costs has already been made in favour of the respondents. 24 Cc17 25 Cc26 26 Cc29 27 Cc31A 28 See the comments of Keane J in Cook’s Construction Pty Ltd at [83-86]; refer Smith Development Pty Ltd; 29 S100 QCAT Act -- 13 of 13 --