Creevey v Lyons [2014] QCAT 41

CITATION: Creevey v Lyons [2014] QCAT 41 PARTIES: Matthew Creevey (Applicant) v Damien Lyons (Respondent) APPLICATION NUMBER: BDL279-13 MATTER TYPE: Building matters HEARING DATE: 31 January 2014 HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 3 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Damien Lyons is to pay Matthew Creevey the sum of $30 by 4.00pm 28 February 2014. CATCHWORDS: DOMESTIC BUILDING DISPUTE – contract partly in writing and partly oral – owner builder claims for variations by omissions – whether the reasonable costs of variations had been allowed APPEARANCES and REPRESENTATION (if any): APPLICANT: Matthew Creevey, in person RESPONDENT: Damien Lyons, in person REASONS FOR DECISION [1] Mr Creevey, as an owner builder, contracted with Mr Lyons to perform building work on his house. The terms of the contract were partly in writing and partly oral. Mr Creevey claims that variations by omissions have not been properly reflected in the amount payable and paid and that a refund is due. -- 1 of 4 -- 2 [2] It is not disputed that: a) Mr Creevey provided to Mr Lyons a scope of work1. The scope of work did not provide for painting; b) Mr Lyons quoted for work in 2 stages2. The quote is dated 30 July 2013 and the quoted amount for stage 1 was originally $8,800 (incl GST). In view of the dispute which arose in relation to the price to be paid for stage 1 the parties agreed not to continue with stage 2; c) Mr Creevey and Mr Lyons discussed that Mr Creevey intended to supply some labour and if he was able to source materials at a cheaper price he would supply those materials and the contract price would be adjusted to reflect these omissions. d) No hourly rate to be applied and no mechanism or methodology for valuing Mr Creevey’s contribution in labour or materials was agreed at the time that the contract was entered into. This is the source of the dispute between the parties. e) Mr Creevey supplied a laminated beam and supplied some labour on the first day Mr Lyons was on site. There is a dispute as to whether the first day on site was 7 August 2013 or earlier. f) Mr Lyons offered to reduce the contract price to $7,700 (incl GST) to reflect the supply of the beam and some labour. This offer was made either on 6 August 2013 or before.3 There is a dispute as to whether the offer was made before or after the first day on site. g) The parties agreed to vary the scope of work to defer some work to stage 2. On 6 August 2013 Mr Lyons offered to reduce the contract price further to $6,600 (incl GST). h) On 7 August 2013 Mr Creevey paid $6,600. [3] Mr Creevey gave evidence that in addition to supplying the beam and some labour on the first day he also supplied framing, which it is conceded was not used by Mr Lyons and additional labour by an associate and himself on other days. He contends that further deductions to the contract price to reflect the omissions should be made and challenges the value of the reductions offered by Mr Lyons. [4] Mr Creevey as applicant bears the onus of satisfying the Tribunal that he is entitled to his claim both as to entitlement and amount. Little evidence was provided to the Tribunal to support the claim. No evidence of the actual cost of the beam or the framing was put forward by Mr Creevey. He concedes he still has the framing and he may yet have a use for it. 1 Appendix 1 to Application for domestic building disputes. 2 Appendix 2 to Application for domestic building disputes. 3 Appendix 5 to Application for domestic building disputes. -- 2 of 4 -- 3 [5] Mr Creevey accepted that Mr Lyons as a professional was likely to perform tasks more quickly than he and his associate so that the labour component would not be reflected in an hour for hour reduction but contends that the hourly rate should reflect Mr Lyons’ charge out rate because of the resulting saving in his time such work would entail. [6] There is no evidence as to Mr Lyons’ charge out rate before the Tribunal because Mr Lyons quoted a fixed price and no agreement was made about how omissions should be valued. Mr Creevey gave oral evidence that other carpenters he had used charged at the rate of about $60 per hour. [7] No evidence from another builder or carpenter was put forward as to the reasonable costs of the work performed by Mr Creevey and his associate or the materials supplied. In short there was no evidence of the reasonable costs of the variations by omission other than the amounts Mr Lyons offered during the course of the work. [8] Mr Creevey did not provide to the Tribunal any evidence as to the reasonable value of the deferred work. There is therefore no evidence upon which I am able to find that the reasonable costs of the deferred work were more than the amount offered by Mr Lyons. [9] Mr Creevey gave evidence as to the nature of the work he and his associate performed on other than the first day. He estimated that the time spent was in the order of 9 man hours. [10] Mr Lyons disputed that much of the work fell within the scope of works because painting was not part of the scope of works and most of the work performed was preparation of surfaces for painting and applying an undercoat to external timber surfaces. No evidence from a builder or carpenter was before the Tribunal as to whether it is industry practice to include such preparation of timber where painting is excluded. There is therefore no evidence upon which I can rely to find that such work was within the scope of work where the written scope does not expressly provide for it. I am not satisfied that it ought to be considered a variation by omission. [11] During the hearing Mr Lyons conceded that it is usual for a contractor to include in its price for the removal of rubbish. Mr Lyons gave evidence that the refuse tip fees which he would have incurred would have been in the order of $30. [12] Mr Creevey gave evidence that: a) the round trip to the refuse tip is about 1½ hours and that he took about the same to time to sort the rubbish into recyclable and non- recyclable waste. b) he used refuse vouchers so he did not pay tip fees. -- 3 of 4 -- 4 [13] Mr Lyons gave evidence that the cost of the beam would be in the order of $450 - $500. Mr Lyons is an industry professional. In the absence of evidence as to its actual cost I accept his evidence. On that basis an amount of at least $600 had been allowed for labour savings. Mr Lyons gave oral evidence that Mr Creevey assisted him on the first day on site for about 3 – 4 hours. He had intended his offsider to assist but the offsider was unable to work that day. [14] On the basis of Mr Creevey’s oral evidence that carpenters’ charge about $60/hour the amount allowed for labour by Mr Lyons is equivalent to at least 10 hours. Even if all the work performed by Mr Creevey and his associate is taken into account the evidence is that total man hours is no more than 13. As stated earlier: a) Mr Creevey conceded it would not be one for one in relation to hours; and b) I am not satisfied that some of the work was within the agreed scope of work. [15] There is no evidence before the Tribunal upon which I can rely to find that the reasonable costs of the variations by omission in relation to labour and the supply of the beam are more than the amount offered by Mr Lyons. [16] I find that the value of the variation by omission in relation to fees for removal of rubbish is $30. -- 4 of 4 --