Dillon v Vuu [2011] QCAT 315

CITATION: Dillon v Vuu [2011] QCAT 315 PARTIES: Mr Luke Dillon v Mr Hong Tam Vuu aka Michael Vuu APPLICATION NUMBER: MCDO209-10 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 8 February 2011 HEARD AT: Coolangatta DECISION OF: Julie Cowdroy, Member DELIVERED ON: 4 July 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The respondent pay the applicant the sum of $2,550 within 30 days. CATCHWORDS: Money lent – claims not substantiated by documents – admissions by respondent that some amounts were advanced by applicant in the form of loans – counter claim by the respondent for his architectural design services where applicant claims the services were gifted – whether respondent was licensed to perform such work not decided APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Dillon, assisted by Ms J Babbington RESPONDENT: Mr Vuu REASONS FOR DECISION BACKGROUND TO THE APPLICATION [1] This is an application for an order in respect of monies lent to the respondent in the sum of $3,947.41, plus costs, fees and interest. The applicant contends that he loaned the respondent various amounts of money that have not been repaid. The respondent acknowledges that he received some money from the applicant in the form of loans but -- 1 of 7 -- 2 counter claims the applicant owes him $10,500 for his professional services in preparing architectural designs and associated work in relation to the applicant’s residence. Hearing [2] The matter was heard on 8 February 2011, following which the parties were given the opportunity to make submissions or provide further information in relation to the material contained in the Building Services Australia (BSA) documents. The applicant and respondent filed additional material in the Registry, which was received by the member on 30 March 2011. APPLICANT’S CASE [3] The parties met in 2006. Mr Vuu was a builder and the applicant did plastering work at a project at Springfield Lakes. The company who built the project, H T Constructions, went into liquidation and at that time Mr Dillon was owed $5,736. Mr Vuu was a director and nominee of H T Constructions, which at that time held a QBSA licence. The company was de-registered on 30 January 2011. The applicant took legal action to recover the amount of $5,786 owed to him by H T Constructions, but because of the manner in which the company was set up and there was nothing in writing, his claim was dismissed. [4] The respondent told the applicant that he had left him out of the list of creditors and that “if you come along with me, I will repay you”. This occurred in early 2007. Mr Dillon did not work for or with Mr Vuu again, but Mr Vuu came to his job sites and asked him for money. The applicant gave the respondent various sums of money to help him get back on his feet, as Mr Vuu had no work and no money. The respondent gave him money for petrol so he could quote for jobs. The applicant believed at that time that Mr Vuu was a licensed builder. [5] The applicant gave the respondent various amounts, including amounts of $400. He advanced $300 on 19 January 2008, $250 on 6 February 2008 and there were other amounts of a smaller nature advanced to Mr Vuu which do not form part of his claim. The applicant also seeks an amount of $3,397.41, which is the amount of a cheque given by him to Mr Vuu on 17 December 2008 to pay for various services in connection with the building of his home. He contends that Mr Vuu converted the funds from that cheque for his own use. [6] A loan agreement was drawn up and signed by the parties on 11 June 2007 which states that amounts of $1,850 and $40 were owed by Mr Vuu. The loan agreement was provided to the tribunal to demonstrate that various amounts of money were advanced to Mr Vuu in the form of loans, although the amounts in that document do not form part of the claim. -- 2 of 7 -- 3 [7] On the understanding that Mr Vuu was licensed to do so, the applicant engaged the respondent to prepare plans for his house and ensure that certification occurred. It was also proposed that Mr Vuu would build the house for him. [8] On 17 December 2008 Mr Vuu asked the applicant for a cheque for $3,397.41 so that fees could be paid to the private certifier and public liability insurance taken out. The certifier’s fees were $1,816 and he was waiting for the money. The public liability insurance provided by Suncorp was to cost $1,581.41. Mr Vuu paid Suncorp the insurance premium on 29 December 2008. Mr Dillon contended that the public liability was “useless” as he had to pay it again when he instructed a different builder. He was advised that the insurance paid to Suncorp was non refundable, although he was told Mr Vuu attempted to reclaim it. [9] At some point, Mr Dillon decided that Mr Vuu would not construct his house because he was dissatisfied with the plans and the lack of progress in obtaining certification. The roofline had to be aligned and there were other problems with the plans. Adjustments had to be made; there was trouble about an easement and the guttering had to be redesigned. He received a letter from the certifier, Michel Ross, stating that he refused to act because he had not been paid. When he rang the respondent to find out what happened to the cheque he gave him, Mr Vuu hung up on him. He went back to Michael Ross and had to pay him to get the plans to a stage where they could be certified. [10] In terms of the amounts set out in the claim, the applicant contends he made a cash loan to Mr Vuu on 19 January 2008 of $300. An amount of $250 was advanced on 6 February 2008. A cheque for $300 was given but this was dishonoured on 16 February 2009. The applicant kept slips of paper and he wrote on them what he gave to Mr Vuu. He did not have the slips of paper and he did not ask Mr Vuu to sign them. The applicant contended that Mr Vuu had never repaid any of the amounts that were lent to him. He had taken steps to draw up the document headed “Loan Agreement” and had Mr Vuu sign it when the amounts he advanced started to add up. [11] The amounts claimed were “representative” of amounts paid to the applicant over time. [12] In respect to Mr Vuu’s counter claim for his services, the applicant disputed that he owed him anything. Mr Vuu offered to do the architectural drawings for him because he owed him money. The respondent told him that he would do the drawings and that he was licensed to undertake such work. He said there would be no cost for these plans. He had not seen the invoice of $10,500 for architectural design services until these proceedings commenced. -- 3 of 7 -- 4 [13] In any event, he disputed that Mr Vuu was entitled under the Queensland Building Services Authority Act 1991 and its Regulation to be remunerated for his services as he did not hold a builder’s design licence. The applicant relied on the information contained in a letter from the Building Services Authority dated 31 January 2011 and other documentation in relation to licensing requirements. RESPONDENT’S CASE [14] Mr Vuu maintained that the first cheque given to him by the respondent for $3,397.41 was dishonoured. At the same time that he received a cheque from the applicant, he gave a cheque for $1,816 to Mr Ross, the certifier, which was dishonoured. The applicant then issued another cheque 48 hours later for the same amount. He paid Suncorp the public liability premium of $1,581.41. He kept $1,816 as he realised that the applicant was in financial difficulties and he wanted to secure at least a part of his professional fee. [15] Mr Vuu did not dispute that the applicant advanced him sums of money although it was on a few occasions, and not as frequently as the applicant contended. He contended that the amounts were advanced during 2007 (not during 2008 as claimed) because he was stable after August of 2007 due to his involvement in a $1 million contract at Holland Park and had no need to borrow money. He denied that he had told the applicant that he would draw up his house plans at no cost. He told him he would give him a discount. [16] He did not seek a progress payment from the applicant in respect of his invoice for $10,500, as he owned the applicant money. His hourly rate is $240 and the account for $10,500 was less than the amount of hours he worked. He considered that his account was in the area of a 25-30% discount. He agreed that he owed the applicant $1,850, which is the amount in the loan agreement, together with amounts of $400 and $300 advanced in 2007 and he contended that this should be offset against his account for $10,5000 less the $1,816 he had received. [17] He letters from the Building Services Authority, which, he said, corroborated this assertion. He obtained a Bachelor of Architecture from Saigon University in 1984-1985. He obtained status for this degree when he undertook and completed a 2nd degree in 1994 in Australia – a Bachelor of Building/Engineering. [18] The respondent disputed that the applicant paid the certifier additional amounts to rectify the plans he had drawn up. Certifiers are not qualified to prepare or amend plans; he also disagreed with the applicant’s assertion that the builder fixed flaws in the plan drawn up by him. [19] He did not realise that he was being dismissed and that he was not going to build Mr Dillon’s house until after 3 July 2009 when a surveyor -- 4 of 7 -- 5 rang him. He was told that Mr Dillon was using a friend’s license and he was going to construct the house as an owner/builder. [20] The account for his professional services was in the name of Construction Design. He was a nominee for that company and he was to receive the full proceeds of that invoice, if it had been paid. After H T Constructions went into liquidation, the Building Services Authority continued to let him hold a supervisor’s licence. Construction Design was not de-registered until 30 January 2010. [21] The respondent referred to an extract from a statutory declaration dated 9 March 2009 in which he stated that between June 2007 and June 2008 he was the nominee supervisor for Construction Design Pty Ltd, whose registration at the time of the declaration was still current. Findings and Consideration [22] The evidence of both parties was very unsatisfactory in many respects. Mr Dillon was very vague on some crucial matters. Given that the applicant’s contentions are about loans advanced to the respondent, it would have been a natural expectation that he would have produced some form of documentary evidence to substantiate the allegation that he gave the amounts on the dates set out at page 4 of his application to the tribunal. [23] What he did produce was a document signed by both parties on 11 June 2007 in which Mr Vuu agreed that he owed the applicant the sum of $1,850 and $400 in the form of loans. This was produced to corroborate the fact that loans had been advanced in the past. Given this evidence, it was perplexing to understand why the applicant would then claim for amounts for which he had no written evidence. His explanation was that the amounts set out in his claim were “representative” of the amounts advanced to Mr Vuu in the form of loans. If Mr Vuu’s evidence did not contain an acknowledgement that he owed some sums of money, (but not necessarily advanced on the dates claimed by Mr Dillon), his claim would not have any chance of success. [24] I found Mr Dillon’s evidence at times, confusing and at other times, incomprehensible. It may well be that he was daunted by the tribunal process and I have had regard to that in assessing what weight I should give to his evidence. A matter that concerned me was that the submissions and all the documents gathered to rebut the respondent’s counter claim centred entirely on the contention that Mr Vuu was not licensed and could not therefore be remunerated for his services. Nowhere was it alluded to that his services were provided by way of gift. [25] Putting those concerns to one side for the moment, in respect of the claim for amounts advanced by way of loans, the respondent agrees that the applicant advanced him monies, and I make a finding on the basis of his evidence that amounts of $1,850, $400 and $300 were advanced to -- 5 of 7 -- 6 him in the form of loans. I make an order that the respondent pay to the applicant those amounts. [26] The applicant refuted the respondent’s counterclaim for his fees, and as I alluded to earlier in these reasons, he went to considerable lengths to argue that Mr Vuu was not entitled to claim for any services he rendered, principally because he was not licensed to do so. However, his oral evidence was that Mr Vuu’s services were provided at no cost and were in effect, a gift. [27] Ultimately, I formed the view that the multitudinous material provided to support the argument that Mr Vuu had no right to payment for his services, emanated from a tribunal’s member request that this issue be clarified and that the absence of any reference to Mr Vuu’s services being provided gratuitously in any of the written documents was not necessarily indicative of recent invention. [28] Mr Dillon stated that he only became aware of the invoice for $10,500 when these proceedings were instigated. I initially considered that it was unlikely that Mr Vuu would offer to provide his services free of charge, but I was mindful of the fact that Mr Dillon had advanced monies to the applicant despite the fact that their relationship was not one of close friendship. Given that scenario it was not inconceivable that an offer was made to prepare the plans at no cost. [29] I accept Mr Dillon’s evidence that the services associated with the plans were “gifted” to him on the basis of his evidence to that effect and that the respondent took no steps to enforce what he alleges is his right for payment of accounts which he rendered on four occasions, namely 22 August 2008, 24 November 2008, 12 February 2009 and 3 July 2009. All of those invoices referred to progress payments, none of which were received. [30] Whilst Mr Vuu indicated he did not take action to recover the amount owed to him because of the loans, I accept Mr Dillon’s evidence that he received none of these accounts. Having said that, I find that Mr Vuu carried out a considerable amount of work for the applicant, notwithstanding the complaint that the plans were not prepared in a professional manner. This is not something to which I had regard, already having made the finding that I accept the applicant’s evidence that the plans were prepared at no cost. [31] The applicant also seeks reimbursement of an amount of $3,947.41, which is the amount paid to Mr Vuu so that he could pay the certifier and the insurer. There is evidence that Mr Vuu paid the sum of $1,581.41 to the insurer. Whilst Mr Dillon expressed the view that the insurance money was “wasted" and another policy had to be taken out, it remains the fact that Mr Vuu paid it on the applicant’s behalf and the applicant’s claim to have an order against the respondent for this amount is dismissed. -- 6 of 7 -- 7 [32] As to the claim for $1,816, Mr Vuu acknowledges that he received this amount. This is not a matter where an order can be made directing Mr Vuu to disgorge this amount on the basis he had no right to charge for his services. The applicant’s claim on this issue essentially relates to an assertion that Mr Vuu fraudulently converted that amount for his own purpose. The tribunal has no jurisdiction to deal with such an issue. Accordingly, I decline to make any order in respect to this amount. I also disallow the claim for interest or costs, given the circumstances surrounding the relationship between the parties and on the basis that Mr Vuu provided plans which were of value to the applicant at no cost. [33] The order of the Tribunal is that the respondent pay the applicant the sum of $2,550 within 30 days. -- 7 of 7 --