David Wright Properties Pty Ltd v Sanderson & Anor [2011] QDC 70

DISTRICT COURT OF QUEENSLAND CITATION: David Wright Properties Pty Ltd v Sanderson & Anor [2011] QDC 70 PARTIES: DAVID WRIGHT PROPERTIES PROPRIETARY LIMITED (Plaintiff/Applicant) V JOHN CYRIL MICHAEL SANDERSON AND TINA ELIZABETH FULLER (Defendants/Respondents) FILE NO/S: 2192 of 2010 PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 12 May 2011 DELIVERED AT: Brisbane HEARING DATE: 4 May 2011 JUDGE: Devereaux SC DCJ ORDER: 1. Judgment for the plaintiff for $75,457.10. 2. I will hear the parties as to further orders. CATCHWORDS: PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – claim under a contract for the sale, transport and re-stumping of a house – where parties disagree on meaning of written terms – where defendants allege breach of express and implied terms and counterclaim for costs of repairs to remedy works - whether defence or counterclaim have no real prospect of success at trial COUNSEL: Miss M.J. Luchich for the plaintiff/applicant Mr C.F. O’Meara for the defendants/respondents SOLICITORS: Scoglio Law for the plaintiff/applicant Paul Pattison for the defendants/respondents [1] This application is for summary judgment for part of the claim - $110,000.00. The whole claim is for $128,676 for breach of an agreement regarding the sale, transportation and restumping of a house. -- 1 of 5 -- 2 [2] The plaintiff pleads that the agreement was made between July and December 2008 and was both written and oral. So much is not expressly denied in the defence, but the defendants assert that there were other terms implied into the agreement by force of law and counterclaim for the cost of effecting repairs in the sum of $69,672. [3] The plaintiff operates a business of house removals from a property on the Bruce Highway at Burpengary. The defendants own land at Kobble Creek. On 3 July 2008, the defendants visited the plaintiff’s business and selected a house. They signed an agreement and paid $2,000 deposit. The parties disagree about the terms of the agreement, about whether the plaintiff has completed the work the subject of the agreement and about whether the work done was unsatisfactory – in breach of express and/or implied terms. [4] The contract is annexed to the affidavit of Sally Patricia Wright, the office manager for the plaintiff. The contract is a prepared form with blanks filled in by Sally Wright. She deposes to a discussion lasting about half an hour with the defendants on 3 July 2008 during which she explained the various terms and filled in the form before the defendants signed the agreement and paid the deposit. [5] The written agreement, the handwritten parts indicated by italics, includes the following: Extent of Contract The house will be moved in 2 sections. The contractor is not responsible for any cyclone proofing of any kind. Contractor can if required cyclone proof the roof for a cost of $2,500. The contractor shall transport THE HOUSE ONLY. The contractor shall obtain and pay for all transport permits and escorts. [6] The next heading is “Terms”. It reads: The contract price for the removal is .. $112,000 …..including GST. A deposit of ….. $2,000 ….is required when signing. A sum of …-…….is required on the start of the work. A further sum of …..110,000….. IS REQUIRED AS SOON AS THE HOUSE ARRIVES ON THE PURCHASES 1 LAND. Balance on completion of work by contractor. [7] The next heading is “Foundations” under which are set out a number of items of work related to the restumping of the house. Some of these items are stated as being within “this price” and some of which provide for further costs if extra materials and labour are required. 1 As written. -- 2 of 5 -- 3 [8] There then follows a list of other conditions, including the express condition that the contractor will carry out the work in a good and workmanlike manner, leading at the end to the clause: “Special Conditions (if any) … The contractor will fix the internal stairs in this price and the back verandah. The above contractor will cyclone proof the roof to W41 in this price.” [9] The plaintiff argues the agreement was for the sale, transport and restumping of the house from the Burpengary property to Kobble Creek and for other work in the re- establishing of the house at that site. The plaintiff argues that the terms of the agreement included that the contract price for the removal of the house was $112,000 of which $2,000 was to be paid by way of deposit upon signing the agreement and $110,000 was expressly required to be paid when the house arrived at the land. After that a balance would be owing depending on the amount of work done by the plaintiff. [10] The defendants argue that this was a “mixed purpose” contract for supply of the house and for building services. [11] The real dispute between the parties seems to me to be whether the sum of $110,000 was payable upon arrival of the house or upon completion of all the work. The defendants argue for the latter and argue that because the work has either not been completed or is unsatisfactory – in breach of express and/or implied terms - no further amount is yet due to the plaintiff. [12] In my view, the written agreement is plain enough. It is a contract for the sale of a house, its removal to Kobble Creek and certain works to its foundations and certain work to the internal stairs, the back verandah and the roof. The removal and some of the foundation work and the work to the internal stairs, the back verandah and the roof are all to be done for the price of $112,000. Some of the foundation work may incur extra cost. That work plus other expenses including the hiring of machinery inform the amount claimed, namely $128,676. [13] It is also plain on the face of the document that the sum of $110,000 was to be paid when the house arrived at Kobble Creek. It is not inconsistent with that term that some of the work to be done “in this price” would necessarily be done after payment. [14] In the amended defence and counterclaim the defendants assert the house has not been secured to the supporting upright columns; holes made in the floor of the house for the purpose of transporting the house have been left unrepaired; the plaintiff failed to adequately bolt and secure the steel columns supporting the floor to the bearers now requiring the bolts to be installed to secure all the steel columns to the floor bearers; the plaintiff failed to adequately support and secure the kitchen floor framing in one corner, the plaintiff failed to support one bearer of the floor framing which is not fixed to the steel post adjacent to the bracket. Also the defendants assert the plaintiff has failed to fix the internal stairs, fix the back verandah and cyclone proof the roof to W41. The counterclaim is for the reasonable cost of effecting repairs to remedy the works, said to be $69,672. -- 3 of 5 -- 4 [15] The defendant, Mr Sanderson, deposes that he had an inspection of the house carried out and found certain defects. I will not repeat them all but it is not clear whether they are the defects pleaded in the counterclaim or further defects. He attaches to his affidavit a quote for tying down stairs and replacing the roof above the deck and demolishing and replacing a deck. That quote is for $38,542. There is no other material to support the amount in the counterclaim. [16] On the hearing of the application Mr O’Meara, for the defendants, argued that the Queensland Building Services Authority Act (the QBSAA) and the Domestic Building Contracts Act 2000 may apply to the contract. He referred to Schedule 2 of the QBSAA – specifically to the definition of building work; the Domestic Building Contracts Act 2000 s 8 (8) and (10) and Schedule 2 to that Act – the definition of excluded building work. He submitted that the Queensland Civil and Administrative Tribunal Act 2009 therefore applied and the Queensland Civil and Administrative Tribunal (QCAT) had jurisdiction to deal with the dispute under the Act over the contract. That might be so but there is no application before the court for the transfer of these proceedings to the QCAT. Also I am satisfied that although the QCAT may have jurisdiction the plaintiff is not precluded from commencing these proceedings,2 nor is the court prevented from hearing and determining them. [17] Mr O’Meara also argued that it was possible the transaction the subject of these proceedings was governed by the Sale of Goods Act 1896 and so the terms implied under that Act are not excluded. This would raise the issue of merchantable quality of the house. Mr O’Meara also argued that the Competition and Consumer Act 2010 (C’th) might apply to the transaction, bringing with it further consumer protections which were not explicit in the written agreement. That Act also requires that the house, if it is properly to be considered consumer goods or services, had to be of acceptable quality and that the services had to be provided with proper care and skill. [18] These ideas are not pleaded but it was submitted their potential application to the agreement between the parties should forestall the application for summary judgment. [19] It is far from clear that these various pieces of legislation apply to the transaction. Even if they do I am not satisfied they expand the issues relevant to the dispute between the parties, particularly relevant to this application. The court is left with a transaction based on a tolerably clear written agreement and associated oral discussions. The agreement was for the purchase and transport of a house, certain work to the foundations and other building services. The price was $112,000 but the agreement encompassed further amounts according to the extent of foundation work required. The agreement required a $2,000 deposit. It was paid. The agreement required $110,000 to be paid when the house arrived at the land. The agreement then required the plaintiff to conduct certain work - some for no more money than was to have been already paid and some which would require further payments. [20] The materials before the court establish that the plaintiff transported the house to the defendants’ property and undertook substantial work on securing it there. 2 Queensland Building Services Authority Act 1991 s 77; Queensland Civil and Administrative Tribunal Act 2009 ss 9, 10 and 53 and March & Spencer v Metrotek Constructions Pty Ltd McGill SC DCJ 24 February 2011. -- 4 of 5 -- 5 [21] The defendants complain about the quality of the work done. The only evidence before the court is that to rectify that work or some of it would cost $38,542.10. [22] I am satisfied that the defence, in so far as it relies on the proposition that none of the $110,000 was to be paid until the completion of all work, has no real prospect of success. The term is clearly stated and makes commercial sense. Given the amount of planning, machinery and labour involved in the removal and the difficulty of recovering the house once delivered, a term requiring a substantial earlier part- payment would have been unsurprising. [23] The counterclaim arises out of the same transaction. If the counterclaim were made out and pleaded as a set-off it would to some extent impeach the claim. I am not satisfied the defendants have no real prospect of succeeding to some degree on their counterclaim. There needs to be a trial to determine the parties’ rights regarding the remainder of the claim and the counterclaim. It would be inappropriate to give judgment for the amount presently sought by the plaintiff and leave the defendants to pursue separately the counterclaim with the prospect of setting it off only against the remaining portion of the claim. Miss Luchich, who appeared for the plaintiff, does not ask for such an order. She submitted that should I not be satisfied the counterclaim had no real prospect of success I should give judgment for the amount presently sought less $38,542.10, the only amount supported by evidence. That, it seems to me, would be appropriate. [24] In the circumstances there should be judgment for the plaintiff for $75,457.10. I will hear the parties on further orders. -- 5 of 5 --