Burnitt v Hargreaves [2010] QCAT 194

CITATION: Burnitt v Hargreaves [2010] QCAT 194 PARTIES: Wayne Burnitt v Keith Hargreaves APPLICATION NUMBER: BD228-09 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: BRISBANE DECISION OF: Dr Bridget Cullen Mandikos DELIVERED ON: 5 May 2010 DELIVERED AT: BRISBANE ORDERS MADE: 1. Mr Hargreaves to pay Mr Burnitt the sum of $37,928.00 no later than 4.00 pm on Thursday, 27 May 2010. 2. Mr Hargreaves’ Counterclaim is dismissed. CATCHWORDS : Payments made pursuant to domestic building contracts act; sections 64 and 69 Domestic Building Contracts Act 2000 (Qld). APPEARANCES and REPRESENTATION (if any): On the papers. -- 1 of 6 -- BD228-09 / Page 2 of 6 REASONS FOR DECISION 1. This domestic building dispute has arisen following the construction of a dwelling on Macleay Island by the applicant, Mr Wayne Burnitt (“Mr Burnitt”), a licensed builder by trade. The respondent, Mr Keith Hargreaves (“Mr Hargreaves”), was the owner of the land on which the dwelling was constructed. Mr Burnitt and Mr Hargreaves had entered into an HIA contract, dated 17 December 2007, with regards to the construction. 2. In his amended domestic building disputed application, filed with the Commercial and Consumer Tribunal (“CCT”) on 13 July 2009, Mr Burnitt alleged that Mr Hargreaves had failed to make the final contractual payment required pursuant to the contract, and claims that Mr Hargreaves owes him an amount totalling $38,699.00. 3. Mr Hargreaves, in his amended defence, filed with the CCT on 29 July 2009, denies that he is obliged to make any further payments to Mr Burnitt, and has made a counterclaim alleging that he is entitled to a refund of $4,519.00 from Mr Burnitt. 4. Following a directions hearing before Member Stilgoe, it was ordered that the decision in this matter be made on the papers. 5. The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the CCT: Section 256 Queensland Civil and Administration Tribunal Act 2009 (“QCAT Act”). 6. Mr Burnitt has filed a statement dated the 14 th September 2009, annexing material that includes portions of the HIA contract (the whole of which was attached to his amended application), and invoices dated the 22 nd September 2008. There is also a range of correspondence filed by Mr Burnitt with QCAT, relating to his claim against Mr Hargreaves. 7. Mr Hargreaves has filed a sworn statement dated 1 September 2009, outlining the date, manner, and amount of the payments he made to Mr Burnitt pursuant to the contract. Additionally, Mr Hargreaves has attached documentary evidence evidencing the payments made. 8. Both parties have provided the Tribunal with a “progress payment table”, which was part of the HIA contract between the parties. That progress payment table indicates that the following payments were to be made: -- 2 of 6 -- BD228-09 / Page 3 of 6 STAGE PERCENTAGE AMOUNT 1 Deposit 10% $9,020 2 Pre Wire 10% $9,020 3 Plumbing Ruffin [sic] 20% $18,040 4 Gyprock 20% $18,040 5 Painting 10% $9,020 6 Tiling/Floor Covering 20% $18,040 7 Final 10% $9,020 TOTAL 100% $90,020 9. The price to complete the dwelling on Macleay Island was, as is apparent from the table above, $90,020.00. 10. In his statement, Mr Hargreaves swears that he has made the following payments: DATE AMOUNT SUPPORTING EVIDENCE IN DISPUTE? 12 August 2007 $3,500.00 Statement of Mr Hargreaves; Paragraph 8 Statement of Claim; Document “1” annexed to Mr Burnitt’s Application NOT IN DISPUTE September 2007 to January 2008 $36,080.00 Paragraphs 6-8 of the Statement of Mr Hargreaves; Exhibit KGH-1, Page 5; ANZ statement of account ending 21 February 2008 DISPUTED 8 February 2008 $7,682.00 Statement of Mr Hargreaves; ANZ statement of account ending 21 February 2008; Paragraph 8 Statement of Claim; Document “1” annexed to Mr Burnitt’s Application NOT IN DISPUTE 14 March 2008 $13,829.00 Statement of Mr Hargreaves; ANZ statement of account ending 20 March 2008; Paragraph 8 Statement of Claim; Document “1” annexed to Mr Burnitt’s Application NOT IN DISPUTE 11 April 2008 $28,000.00 Statement of Mr Hargreaves; ANZ statement of account ending 21 April 2008; Paragraph 8 Statement of Claim; Document “1” annexed to Mr Burnitt’s Application NOT IN DISPUTE -- 3 of 6 -- BD228-09 / Page 4 of 6 11. Deducting the payments allegedly made by Mr Hargreaves as evidenced by his statement and bank documentation, there is an amount of $1109.00 remaining to be paid by Mr Hargreaves to Mr Burnitt. 12. In addition to the $1109.00 remaining to be paid, Mr Hargreaves agrees that he owes Mr Burnitt an additional $739.00 for agreed extras. 13. In total, Mr Hargreaves agrees that he owes Mr Burnitt $1848.00. That leaves the primary component, $36,080.00, in dispute. The disputed payments of $36,080.00 14. In his statement, Mr Hargreaves alleges that he paid Mr Burnitt the disputed amount of $36,080.00 during the period between September 2007 and January 2008. He has provided scant documentation in support of this assertion. Mr Hargreaves alleges that these payments were made pursuant to the contract, and were made to the suppliers of Mr Burnitt for materials and labour. Yet, he has attached but one receipt, from Bunnings, in the amount of $3,093.60, which he claims is evidence of these payments. 15. I find the absence of documentation by Mr Hargreaves about these payments unusual. The reason I say this is that attached to Mr Burnitt’s application is a letter, dated 26 October 2008, bearing Mr Hargreaves’ signature, which contains the following statement: “Payment contribution by K. Hargreaves for materials + labour (Bank + Financial Advisor has receipts copies, I have originals) $36,080.00” 16. Having read this, it strikes me as odd that despite asserting he had the original receipts; Mr Hargreaves has declined to submit all but the Bunnings’ invoice to the Tribunal for consideration. Further, Mr Hargreaves says in his statement that he paid this sum between September 2007 and January 2008, yet, his letter makes it clear that his view was that he had already paid this sum on 26 October 2008. It is unclear to me why Mr Hargreaves extended the timeframe he alleges he made this payment during by 3-months (November 2007 – January 2008) for purposes of his statement, but it reflects poorly on his credibility. ANZ Bank Documentation 17. In an effort to try and substantiate Mr Hargreaves’ assertions that he has paid Mr Burnitt the $36,080.00, I ordered Mr Hargreaves’ lender, the ANZ Bank, to provide the following material to the Tribunal: “Provide all documents relating to Residential Investment Loan (account numbers redacted for privacy), including but not limited to, all documents relating to the 30 January 2008 progressive drawdown in the amount of $36,080.00. In particular, please provide all documents provided by Keith Hargreaves to ANZ Bank in support of the $36,080.00 drawdown, including invoices, receipts, etc.” -- 4 of 6 -- BD228-09 / Page 5 of 6 18. The ANZ Bank complied with the Tribunal’s Notice to Produce, the response being received by QCAT on 21 April 2010. There are no invoices or receipts contained in the material provided, in contradiction to the statements made by Mr Hargreaves in his letter to Mr Burnitt. 19. There is, however, documentation from ANZ Bank indicating that on 7 December 2007, Mr Hargreaves sought to extend his loan with the bank from the amount originally financed, which was $94,000.00 (approximately the price of the contract) to $130,000.00. This represents an increase of $36,000.00. The bank documentation also indicates that at the same time Mr Burnitt applied for the increase, he held another ANZ Mortgage Loan with ANZ in the amount of $36,000.00. The account number referable to this $36,000.00 is not the same as the account number contained on the Statement to the Account document annexed to Mr Hargreaves’ affidavit, which Mr Hargreaves asserts is proof that he drew down $36,080.00 to pay Mr Burnitt. Further, if the contract price was $90,020.00 (and this is not disputed), then I cannot understand why, particularly where Mr Hargreaves alleges that the payment of $36,080.00 was part of this $90,020.00 contractual figure, he would need an additional $36,000.00 “to complete” the contract. Again, this is unusual, and I find Mr Hargreaves’ bank documentation to be anything but straightforward where the $36,080.00 is concerned. 20. In the circumstances, while I decline to speculate as to the reasons for Mr Hargreaves’ peculiar bank documentation, in view of his conflicting statements and assertions, I favour Mr Burnitt’s version of events. I would consider it more unusual that a tradesperson like Mr Burnitt would simply fail to account for a reasonably large sum of money. There is nothing unusual or inconsistent with Mr Burnitt’s version of events. 21. Further, even if I were to accept that Mr Hargreaves’ Bunnings’ receipt is evidence that the materials purchased were used on the job being completed by Mr Burnitt, there is a shortfall of approximately $30,000.00 for which Mr Hargreaves has no receipts, and despite his assertions, neither does his bank. Moreover, the fact that Mr Hargreaves purchased $3,093.60 of materials from Bunnings does not mean, and this is an important distinction, that any such payments were payments made pursuant to the contract. I cannot find any provision within the contract, a full copy of which has been provided by the ANZ Bank, which would justify Mr Hargreaves’ argument that such payments could be classified as contractual payments. Mr Hargreaves’ Counterclaim 22. Mr Hargreaves, in his amended defence, has made a counterclaim against Mr Burnitt, for the amount of $4519.00, based upon an alleged contravention by Mr Burnitt of s 64 of the Domestic Building Contracts Act 2000 (Qld) (“DBC Act”). 23. In short, Mr Hargreaves alleges that Mr Burnitt has exceeded the set amount for a deposit made pursuant to a regulated contract, in accordance with s64 of the DBC Act. Mr Hargreaves alleges that the Tribunal can order that this amount be refunded to the overcharged building owner, pursuant to s69 of -- 5 of 6 -- BD228-09 / Page 6 of 6 the DBC Act. With respect, Mr Hargreaves’ argument in this regard is misguided, in that there is no “charge” against Mr Burnitt that would attract the application of s69 of the DBC Act. 24. Rather, s69 of the DBC Act would be applicable in circumstances where the Queensland Building Services Authority, in its role as regulator, had charged Mr Burnitt with a contravention of s64 of the DBC Act. The QBSA is not involved in these proceedings, and there is no such charge, as this is simply a civil contractual matter between Mr Burnitt and Mr Hargreaves. 25. I decline to make an order in Mr Hargreaves’ favour, and dismiss his counterclaim. Conclusion 26. I note that Mr Burnitt has sought an additional sum of approximately $771.00, representing “extras and deduction for late payment”. There is insufficient material before me to enable me to make a decision about these matters. 27. In the circumstances, and in view of what I have said above, I find that Mr Hargreaves is liable to pay Mr Burnitt the sum of $37,928.00 (comprised of $36,080.00 and 1848.00). Orders 3. Mr Hargreaves to pay Mr Burnitt the sum of $37,928.00 no later than 4.00 pm on Thursday, 27 May 2010. 4. Mr Hargreaves’ Counterclaim is dismissed. -- 6 of 6 --