Atkinson and Anor v Van Uden

[2020] QCAT 259

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Atkinson and Anor v Van Uden [2020] QCAT 259

PARTIES:

TERRANCE ATKINSON

LEONIE ATKINSON

(applicants)

v

MARINUS HENDRIKUS VAN UDEN

(respondent)

APPLICATION NO/S:

BDL110-19

MATTER TYPE:

Building matters

DELIVERED ON:

18 March 2020

HEARING DATE:

28 January 2020; 10 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

The respondent Marinus Hendrikus van Uden pay the applicants Terrance Atkinson and Leonie Atkinson damages in the sum of $22,439.00 within 21 days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where no enforceable contract – where finding of negligent construction work open on the application and statements of evidence – where damages for negligent construction work awarded

Civil Liability Act 2003 (Qld), s 9, s 11

Queensland Building and Construction Commission Act 1991 (Qld), s 13(2), s 13(5), s 44, s 77(1), Schedule 1B

Belgrove v Eldridge (1954) 90 CLR 613

Bryan v Maloney (1995) 182 CLR 609
Caltex Refineries (Qld)  Pty Ltd v Stavar [2009] NSWCA 258
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

1. Mr and Mrs Atkinson entered into a building contract with Mr van Uden, trading as The Flying Dutchman, for the renovation of the main bathroom and an ensuite bathroom at their home at Palmwoods.

2. The terms of the contract and in particular the scope of work are in dispute.

3. Mr van Uden commenced work in April 2017 and completed work on or about 31 May 2017. The Atkinsons paid the contract price of $8,715.00, inclusive of GST plus a further $1,650.00, inclusive of GST for further work.  Before work commenced a deposit of $4,000.00 was paid upon the request of Mr van Uden.

4. The Atkinsons allege that the work is defective because the bathrooms leak and there is damage to a structural floor joist as a result of the work.

5. The Tribunal has jurisdiction to hear this matter as a building dispute pursuant to section 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). Relevantly I am satisfied that the requirements of s77(2) of the QBCC Act have been met. Further, within the terms of Schedule 1B of the QBCC Act, the renovation work the subject of this dispute is reviewable domestic work and that there is a domestic building dispute between the applicants as building owners and the respondent as a building contractor who carried out the domestic building work.

6. The hearing commenced on 28 January 2020 but was adjourned part heard before the conclusion of the Atkinsons’ case to enable them to locate evidence of email acceptance of Mr van Uden’s 11 March 2020 quotation for the performance of work.

7. The hearing was resumed on 10…