Halliday v The Phoenix Group (Qld) Pty Ltd

[2018] QCAT 65

CITATION:

Halliday v The Phoenix Group (QLD) Pty Ltd [2018] QCAT 65

PARTIES:

Craig Robert Halliday
Rachael Heather Halliday
(Applicants)

v

The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products
(Respondent)

APPLICATION NUMBER:

BDL035-17

MATTER TYPE:

Building Matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

14 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

1.     The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday the sum of $1,789.00; and

2.     The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday costs of $315.70.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED  CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where builder did not perform work – where home owner received nothing from work – where total failure of consideration – where home owner entitled to recover money paid plus consequential loss

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OTHER MATTERS – where claim for costs of letter of demand – where costs incurred prior to commencement of proceedings not recoverable – where costs of filing fee awarded   

Queensland Building and Construction Commission Act 1991 (Qld), s 77

A L Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319
Faulks v New World Constructions Pty Ltd (No. 2) [2014] QCAT 329

Robinson v Harman [1848] EngR 135

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

1. Craig and Rachael Halliday paid to The Phoenix Group (Qld) Pty Ltd t/as Elite Wrought Iron Products the sum of $1,489.18 to supply and install a gate.[1] The gate did not meet requirements and had defects. Phoenix agreed to “sort these issues out” and collected the gate.[2]

   [1]        Tax Invoice No. 6719 of Elite Wrought Iron Products dated 20 July 2015.

   [2]        Email Elite Wrought Iron to Craig Halliday dated 30 march 2016.

2. Phoenix never returned.

3. Phoenix did not file a Response to the Application or engage with the Tribunal process. 

4. Accordingly, the Tribunal has been requested to assess damages.

Who is the correct Respondent?

1. The tax invoice describing the work and payment is in the name of “Elite Wrought Iron Products” and dated 20 July 2015. Mr and Mrs Halliday paid the sum of $1,489.18 the same day.[3] The contract was therefore entered into on 20 July 2015.

   [3]        Bendigo Bank receipt dated 20 July 2015.

2. The business name “Elite Wrought Iron Products” was registered to “The Phoenix Group (Qld) Pty Ltd” from 29 April 2014 to 15 January 2016. This period encompasses the time of contract.[4] “The Phoenix Group (Qld) Pty Ltd” is therefore the correct Respondent.   

   [4]        ABN Search dated 10 May 2017.

Are Mr and Mrs Halliday entitled to a refund from Phoenix?

1. Mr and Mrs Halliday have received nothing for their money. There has been a total failure of consideration. They are therefore entitled to a full refund of $1,489.18. 

Are Mr and Mrs Halliday entitled to damages from Phoenix?

1. Mr and Mrs Halliday are entitled to damages to restore them to the position they would have been in had the wrongful acts not occurred.[5] Because Phoenix did not return the gate, they have suffered consequential loss of $300.00 to install an electric door strike to secure their premises.[6]

   [5]        Robinson v Harman [1848] EngR 135.

   [6]        Tax Invoice No. 1550 of Look & Listen dated 18 August 2015.

2. On this basis, I will award also award the consequential damages of $300.00.

Are Mr and Mrs Halliday entitled to recover costs from Phoenix?

1. The general rule in building disputes is that a successful party is entitled to recover its costs from the other party.[7]

   [7]        Faulks v New World Constructions Pty Ltd (No. 2) [2014] QCAT 329, [17]; A L

   Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319, [4].

2. Mr and Mrs Halliday claimed legal costs of $684.75 for their solicitors to draft a letter of demand.[8] I am not satisfied that preliminary costs incurred by a party prior to the commencement of any proceedings qualify as costs of the proceeding[9] or that they have been reasonably incurred. I will therefore not be awarding the costs of the letter of demand.

   [8]        Tax Invoice No. 335257 of Redchip Lawyers dated 31 July 2016.

   [9]        Mehrtens v Stega [2012] QCAT 176, [19].

3. However, Mr and Mrs Halliday incurred a fee of $315.70 to file the Application. As they incurred this fee to prove their claim, I consider it in the interests of justice to award them their filing fee.[10]

   [10]        Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h).

What are the appropriate orders?

1. The appropriate orders are that:

   1.The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday the sum of $1,789.00; and

   2.The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday costs of $315.70.