Blocksidge v Davis [2011] QCAT 672

CITATION: Blocksidge v Davis [2011] QCAT 672 PARTIES: Michael David Blocksidge (Applicant) v Anthony Davis (Respondent) APPLICATION NUMBER: BDL024-11 MATTER TYPE: Building matters HEARING DATE: 6 December 2011 HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 22 December 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That Anthony Davis pay to Michael David Blocksidge the sum of $4,711.55, including costs of $255, within 28 days of these orders. CATCHWORDS: BUILDING DISPUTE – where contract between builder and subcontractor – where subcontractor failed to complete the works and work done was defective BUILDING DISPUTE – quantum of damages Queensland Civil and Administrative Tribunal Act 2009, s 93 Hungerfords v Walker (1989) 63 ALJR 210 Goldberg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711 Lyons v Dreamstarters Pty Ltd [2011] QCATA 142 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Blocksidge appeared on his own behalf -- 1 of 5 -- 2 RESPONDENT: There was no appearance by Mr Davis REASONS FOR DECISION [1] Mr Blocksidge is a registered builder. Mr Davis is a plasterer. Mr Blocksidge was engaged to construct a house at premises at 21 Pelican Drive, Toowoomba. Mr Blocksidge entered into an agreement with Mr Davis whereby Mr Davis was to undertake the plastering work for him at those premises. [2] Mr Blocksidge filed an application seeking damages for rectification of defective plastering work in the amount of $5,605.05; repayment to him of $655 for monies paid to Mr Davis for GST, whom Mr Blocksidge says he subsequently discovered was not registered for GST; and $255 costs for filing fee for the application. At hearing, he abandoned a claim for lost carpentry time. He also seeks dismissal of the counter-claim filed by Mr Davis in the proceeding. [3] Mr Davis filed a response and counter-claim to the application, and subsequently, a miscellaneous application. However, he did not attend at the hearing. Notice was sent to him by the tribunal of the hearing date and time. Therefore, I was able to be satisfied that the tribunal could proceed to hear and determine the matter in the absence of Mr Davis in accordance with section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). The evidence [4] Mr Blocksidge’s evidence is that he engaged Mr Davis as a subcontractor. He provided the tribunal with a housing subcontract agreement signed by himself dated 9 July 2010, nominating Anthony Davis Plastering as the subcontractor which describes the works as ‘To supply all labour and setting materials to complete the plastering work to pre-paint standard. Builder to supply sheet and cornice.’ The contract sum nominated is $11,950, GST inclusive. It also included a defects liability period of 6 months from the date of practical completion. It provided for fortnightly progress claims. Mr Blocksidge says that he agreed to pay the claims on itemised tax invoices for hours worked. [5] He says that he gave the contract to Mr Davis on about the day it is dated, and requested that he sign and return it as soon as possible. Mr Davis indicated that he would do so. Although he made similar requests on a number of subsequent occasions, the contract was not returned to him until 26 August 2010, when Mr Davis gave it back unsigned stating that he would not sign it. Mr Blocksidge again asked him to sign it, but he did not do so. [6] In these proceedings, Mr Davis filed a miscellaneous application in which he asserted that he was an employee not a subcontractor because he had not signed the subcontract agreement although he was asked to do so. [7] According to Mr Blocksidge, Mr Davis worked his own hours, supplied his own tools and setting materials. Mr Davis was paid on invoices submitted by him to Mr Blocksidge. Mr Blocksidge’s evidence is that three invoices -- 2 of 5 -- 3 were rendered to him by Mr Davis and copies of these invoices were provided to the tribunal. The first undated invoice was invoice 15 for $3,456.00, which did not include a GST component. Although it was undated, Mr Blocksidge identified it as the first claim which he paid on about 22 July 2010. Invoice 02 was dated 26 August 2010 for $5,063 and included GST of $457.50. Invoice 03 dated 26 August 2010 was for $2,282.50 and included GST of $207.50. These were also paid on the dates the invoices were rendered to him. [8] On 9 September 2010, Mr Davis attended at Mr Blocksidge’s home stating that he wanted money. Mr Blocksidge asked him to render a tax invoice when a draw was due. Mr Davis told him that he ‘quit’ and walked out. It transpired that he removed his equipment from the site and he did not return. [9] A further fourth invoice was subsequently rendered by Mr Davis for a further $4,468.75 in September 2010, but it was not paid. [10] After Mr Davis left the site, Mr Blocksidge says he had no other option but to engage another plastering contractor to finish the job and rectify Mr Davis’ work. He claims that the work done by Mr Davis was sub-standard, untidy and unfinished. A DVD, showing the plastering works was provided to the tribunal by Mr Blocksidge, which had been made by Peter Richmond, principal of Richmond Plastering Contractors Pty Ltd. [11] Mr Blocksidge explained the problems with Mr Davis’ plastering work as the tribunal watched relevant parts of the DVD. In particular, his evidence was that the problems included that joints in the ceiling had sunk; there was insufficient plaster topping coat over the nails to sand back; lumps and bumps of plaster were visible in many areas; corners were not straight or set so that there was not a clean finish, there were instead gaps; and cornices were not done in cupboards and wardrobes. Mr Blocksidge explained that these examples were typical of the problems with the work done by Mr Davis throughout the premises. [12] Peter Richmond also provided a statement listing some of the defects which is consistent with Mr Blocksidge’s evidence. [13] Mr Blocksidge engaged Richmond Plastering to rectify and finish the plastering work. It cost $5,605.05. Mr Blocksidge explained that some 470 individual patches had to be done by Richmond Plastering. An invoice and receipt was provided. Consistent with the issues identified by Mr Blocksidge, Richmond Plastering itemise the work undertaken by them as including removing excess plaster from external and internal angles, joints square sets, nail holes and bulk heads; sanding back excess plaster from joints, nail holes and edges to re-coat; retaping joints on walls and ceilings on both floors; sanding existing work and repair work; repairing and sanding existing cornice and cornicing remainder of the house; and completing the detail of existing work and repair work to best possible standard for a major repair job. [14] Mr Blocksidge says that he found out only on 27 October 2010, when doing an ABN search that Mr Davis was not registered for GST. A copy of the search was provided to the tribunal which states that at that date Mr -- 3 of 5 -- 4 Davis was not registered for GST. He said that as a result he could not claim input tax credits for the GST paid to Mr Davis. [15] The response to the application filed by Mr Davis attaches another ABN search dated 28 February 2011, which indicates that Mr Davis’ GST registration was effective from 2 October 2009. Discussion and Decision [16] This is a claim for damages for breach of contract. [17] I accept the evidence of Mr Blocksidge about the agreement between the parties and the work done by Mr Davis. It was consistent and supported by the documents he provided to the tribunal. His evidence is that before Mr Davis commenced work on the job, he prepared a subcontract agreement and presented it to Mr Davis for signing. Mr Davis in his miscellaneous application confirms that he was asked to sign it, but he did not. He commenced the work telling Mr Blocksidge that he would sign it. Until shortly before Mr Davis left the site, Mr Blocksidge had no reason to believe any differently. [18] I am satisfied that Mr Davis was engaged as a subcontractor and according to the terms of the subcontract. Both Mr Davis and Mr Blocksidge acted in accordance with it. Although Mr Davis did not sign it, I am satisfied that it reflects the agreement between the parties. As a subcontractor, Mr Davis agreed to perform the work specified. It was an implied term of the contract that the works were to be performed in a competent and workman-like manner, as is evidenced by the provision for a defects liability period. The agreed price included GST. I accept that there was an implied term that Mr Davis was registered for GST. [19] Mr Davis left the job without completing his side of the bargain. I am satisfied that it was an essential term of the contract that Mr Davis complete the work. Breach of this essential term entitled Mr Blocksidge to terminate the contract for breach. Mr Davis also breached the terms of the contract by failing to perform the work in a competent and workman-like manner. Mr Blocksidge is entitled to his reasonable damages arising from breach of the contract by Mr Davis. [20] The primary purpose of damages is to compensate a party for the actual loss suffered as a result of the other party’s failure to perform the contract.1 The person seeking damages must establish the amount of the loss suffered.2 [21] It is apparent from the evidence that the plastering work done by Mr Davis was incomplete and defective. I accept that it was incomplete and defective in the variety of ways as identified by Mr Blocksidge and Mr Richmond. [22] The agreed contract price was $11,950 inclusive of GST. The total amount paid by Mr Blocksidge to Mr Davis on rendered invoices was $10,801.50. It cost Mr Blocksidge $5,605.05 to have the work rectified and 1 For example see, Hungerfords v Walker (1989) 63 ALJR 210. 2 For example see, Goldberg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711. -- 4 of 5 -- 5 completed. The total cost to Mr Blocksidge for the work was $16,406.55. This represents an amount of $4,456.55 over and above the agreed contract price. This is the loss to Mr Blocksidge as a result of the breach of contract by Mr Davis relating to the performance of the work. [23] Mr Blocksidge claims that he is also entitled to a refund of GST paid to Mr Davis in the amount of $655. The evidence relied upon by Mr Blocksidge is an ABN search dated in 2010. Although he did not appear at the hearing, Mr Davis presented with his response a more up-to-date search which indicates that he was GST registered at the relevant time. [24] Mr Blocksidge must establish the components of his claim in order to succeed. In relation to the GST amount claimed, I am not satisfied on the balance of probabilities that Mr Davis was not registered for GST at the relevant dates. This aspect of the claim must fail. [25] Mr Davis did not attend the hearing and pursue his counter-claim and I dismiss it. [26] Mr Blocksidge seeks costs by way of his filing fee in the tribunal. Having regard to the principles enunciated in Lyons v Dreamstarters Pty Ltd3 about costs in building disputes and that Mr Blocksidge has been substantially successful in his claim, I am satisfied that it is appropriate to award costs in the sum of the filing fee of $255. [27] I make orders accordingly. 3 [2011] QCATA 142. -- 5 of 5 --