Aushaven Homes Pty Ltd v Howe [2012] QCAT 454

CITATION: Aushaven Homes Pty Ltd v Howe [2012] QCAT454 PARTIES: Aushaven Homes Pty Ltd (Applicant) v Karen Howe (Respondent) APPLICATION NUMBER: BDL351-11 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Christine Trueman, Adjudicator DELIVERED ON: 6 June 2012 DELIVERED AT: Brisbane ORDERS MADE: [1] THAT the Respondent pay to the Applicant the sum of $14,263.47 within thirty (30) days. CATCHWORDS: Commercial Building contract – scope of works – whether variations to contract agreed – whether unpaid portion of invoice amount is payable – whether other payments made APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) REASONS FOR DECISION [1] Aushaven Homes Pty Ltd (“Aushaven Homes”) the applicant in these proceedings, were engaged by Ms Karen Howe (“Ms Howe”) the respondent, on or about 26 November 2008 to issue a quotation for the fit out of a butcher shop at Ivadale Lakes for the amount of $58,2399.50. [2] Aushaven Homes and Ms Howe subsequently agreed to variations to the quotation for additional works. They included: -- 1 of 3 -- 2 (a) Plans and Approvals $5,390.00 (b) Office $1,670.00 (c) Lighting (To Be Agreed) (d) Original Quote $58,239.60 TOTAL $65,299.60 [3] Aushaven Homes issued tax invoices to Ms Howe for the following: (a) Invoice 7 issued 19.1.09 for $10,000 including GST (b) Invoice 8 issued 20.1.2009 for $5,390.00 including GST (c) Invoice 9 issued 22.1.2009 for $20,000.00 including GST (d) Invoice 13 issued 27.2.2009 for $143,291.40 including GST [4] Aushaven Homes charged for the lighting in Invoice 13 the sum being $4,765.99 inclusive of GST. Aushaven contend that the total amount payable by Applicant for the goods and services provided by the Applicant was in the sum of $70,065.59 inclusive of GST. [5] Aushaven Homes alleged that they credited Ms Howe’s account for tiles purchased by her in the amount of $20,000.00 and $1,384.19. [6] Aushaven Homes states that Ms Howe has made payment of $35,390.00 and that the amount owing is calculated as follows: (a) Quote $58,239.60 (b) Plans and Approvals $ 5,390.00 (c) Office $ 1,670.00 (d) Lighting $ 4,765.99 (e) Less Payment by Ms Howe ($35,390.00) (f) Less Credit for tiles purchased by Ms Howe ($21,384.19) TOTAL $13,291.40 [7] Aushaven Homes alleged that Ms Howe owes them the outstanding amount of the invoices in the sum of $13,291.40 including GST. [8] Ms Howe agrees that the quotation provided to her was accepted and that the value was for $58,239.60. In her Response she alleges that payments were made by her as follows: (a) On 27/11/2008 $10,000.00 (b) On 9/1/2009 $6,500.00 (c) On 23/1/2009 $20,000.00 (d) On 23/1/2009 $5,390.00 (e) On 20/5/2009 $20,0000.00 TOTAL PAID $61,890.00 [9] Ms Howe claims that she does owe the sum of $3,409.00 together with the sum of the light fittings as to be agreed between the parties. Ms Howe’s evidence relating to the variations appear to agree with that of Aushaven Homes. In her response she has assessed that the total amount of agreed -- 2 of 3 -- 3 charges are $65,299.60 plus light fitting costs. What appears to be in dispute is the amount of monies paid by Ms Howe towards the outstanding invoices and proof of those payments. She alleges in her Response that “some payments….were made in cash at the request of the applicant.” [10] Aushaven Homes provided evidence to the tribunal of their NAB Business Cheque Account statements and evidence of the payments made by Ms Howe on 28/11/2008 of $10,000.00, 2 payments made on 27/1/2009 of $5,390.00 and $20,000.00, on 20/5/2009 payment of $20,000.00. Aushaven Homes denied receiving any payment from Ms Howe on 9/1/2009 in the sum of $6500.00 and that Ms Howe’s assertion that the application of a credit against the light fitting charge on Invoice 13 was not correct as the amount of $1,258.36 + GST was a credit for tiles purchased by Ms Howe. Despite being given the opportunity to file any relevant evidence by Ms Howe that would support her allegation that she has made additional payments to Aushaven Homes that they have failed to take into account, she has failed to do so. [11] From the evidence I accept that the quoted works and variations were agreed to by Ms Howe and that the only payments made by her are as outlined by the evidence provided by Aushaven Homes. [12] I find that is it unlikely that Ms Howe did not make any payments in cash and that if she did she would have provided proof of such payments. For the reasons expressed I find that Ms Howe must pay the balance of the outstanding invoices issued by Aushaven Homes to her. [13] The outstanding amount of the invoices is the sum of $13,291.40. I also find that she must pay the filing fee of $265.00 and interest calculated at 10% for the period from when the claim was filed to date, (6 months) in the sum of $664.57 and a service fee of $42.50. I therefore order that the sum of $14,263.47 be paid by Ms Howe to Aushaven Homes within 30 days of this order. ORDERS [1] THAT the Respondent pay to the Applicant the sum of $14,263.47 within thirty (30) days. -- 3 of 3 --