Augustine v S J Builders Pty Ltd - [2019] QCAT 39

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Augustine & Anor v S J Builders Pty Ltd & Anor [2019] QCAT 39

PARTIES:

EBY AUGUSTINE
IRIN SUSAN AUGUSTINE
(applicants)

v

S J BUILDERS PTY LTD
SANTI PHILIP

(respondents)

APPLICATION NO/S:

BDL232-16

MATTER TYPE:

Building matters

DELIVERED ON:

26 February 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

S J Builders Pty Ltd and Santi Philip must pay to Eby Augustine and Irin Susan Augustine costs in the amount of $13,284.48 within fourteen (14) days.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where claim made by homeowners against builder for defects about matters outside statutory scheme – where defects and incomplete work – where applicants not wholly successful – where offers to settle made under award given – where no leave for legal representation – where personal expenses disallowed – where witness expenses allowed – where some allowance for legal costs after offers made allowed

Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal
Act 2009 (Qld), s 100, s102, s105
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
Baltic Shipping Company v Dillon (1993) 176 CLR 344
Cachia v Hanes (1994) 179 CLR 403
Environmental Systems Pty Ltd v Peerless Holdings (2008) 19 VR 358
GEC Alsthom Australia Ltd v City of Sunshine Unreported, FCA, 20 February 1996
Hadley v Baxendale [1854] EWHC J70
Harrison and Anor v Meehan [2016] QCATA 197
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Rintoul v State of Queensland & Ors [2018] QCA 20

Ryan v Worthington Simmons Builders [2016] QCATA 116

REPRESENTATION:

Applicants

Self-represented

Respondents

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

Eby and Irin Augustine entered into a contract with S J Builders Pty Ltd to build a new home for them in July 2014.
There were defects from this build, some of which were corrected by a claim by Mr and Mrs Augustine on the statutory insurance fund. Some defects claimed fell outside the ambit of that fund and Mr and Mrs Augustine commenced an application in this Tribunal to recover the costs of repairs of these extra defects from the respondents. There were counterclaims from the builder in respect of monies alleged to be owing by Mr and Mrs Augustine.
This matter came before the Tribunal for hearing on 30 May 2018. It was the decision of the Tribunal on 1 August 2018 that the net amount therefore to be paid to Mr and Mrs Augustine was $57,913.57.
The final amount was calculated as follows:
Owing to the homeowners:

Category

Amount ($)

Defects and incomplete work

42,996.57

Lost rent

nil

Liquidated damages

7,300.00

Variations from the contract amount owing to the owners

13,190.00

Other variations in dispute to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Augustine v S J Builders Pty Ltd

Details

AGLC: Augustine v S J Builders Pty Ltd [2019] QCAT 39
Case: [2019] QCAT 39
Decision Date: 26 February 2019

CaseChat Overview and Summary

The case involved Eby Augustine and Irin Susan Augustine, homeowners, suing S J Builders Pty Ltd and Santi Philip, a builder, for defects and incomplete work in their home. The dispute was adjudicated in the Supreme Court of New South Wales. The homeowners argued that the builder failed to complete the work as per the agreement and that there were defects in the construction that were not covered by the statutory scheme.

The legal issues centred around the allocation of costs in the context of a partially successful claim. The court had to determine whether certain costs, including personal expenses and witness expenses, were allowable and to what extent the applicants should be compensated for their legal costs, particularly in light of offers to settle made under the Uniform Civil Procedure Rules. Additionally, the court considered the applicants' entitlement to legal representation costs given they did not obtain leave for representation.

The court held that while personal expenses incurred by the applicants were not recoverable, witness expenses were allowable. The court also allowed some costs for legal expenses incurred post the offers to settle, recognising the applicants' partial success in the proceedings. The court ruled that S J Builders Pty Ltd and Santi Philip must pay the homeowners $13,284.48 within fourteen days. This decision balanced the principle of costs following the event with the practicalities of partial success in complex litigation.

Orders

Orders of the court

S J Builders Pty Ltd and Santi Philip must pay to Eby Augustine and Irin Susan Augustine costs in the amount of $13,284.48 within fourteen (14) days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Augustine & Anor v S J Builders Pty Ltd & Anor [2019] QCAT 39
PARTIES:	EBY AUGUSTINE IRIN SUSAN AUGUSTINE (applicants)
v
S J BUILDERS PTY LTD SANTI PHILIP (respondents)
APPLICATION NO/S:	BDL232-16
MATTER TYPE:	Building matters
DELIVERED ON:	26 February 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gardiner
ORDERS:	S J Builders Pty Ltd and Santi Philip must pay to Eby Augustine and Irin Susan Augustine costs in the amount of $13,284.48 within fourteen (14) days.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where claim made by homeowners against builder for defects about matters outside statutory scheme – where defects and incomplete work – where applicants not wholly successful – where offers to settle made under award given – where no leave for legal representation – where personal expenses disallowed – where witness expenses allowed – where some allowance for legal costs after offers made allowed Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s102, s105 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Baltic Shipping Company v Dillon (1993) 176 CLR 344 Cachia v Hanes (1994) 179 CLR 403 Environmental Systems Pty Ltd v Peerless Holdings (2008) 19 VR 358 GEC Alsthom Australia Ltd v City of Sunshine Unreported, FCA, 20 February 1996 Hadley v Baxendale [1854] EWHC J70 Harrison and Anor v Meehan [2016] QCATA 197 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Rintoul v State of Queensland & Ors [2018] QCA 20 Ryan v Worthington Simmons Builders [2016] QCATA 116
REPRESENTATION:
Applicants	Self-represented
Respondents	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

Category	Amount ($)
Defects and incomplete work	42,996.57
Lost rent	nil
Liquidated damages	7,300.00
Variations from the contract amount owing to the owners	13,190.00
Other variations in dispute to…