Axtens v Brooks - [2011] QCAT 517

CITATION:

Axtens and Anor v Brooks [2011] QCAT 517

PARTIES:	Jonathan Keith Axtens Karen Axtens
v
Michael John Brooks

APPLICATION NUMBER:

BD451-06

MATTER TYPE:

Building matters

HEARING DATE:

4 October 2011

HEARD AT:

Brisbane

DECISION OF:

Sandra Deane, Member

DELIVERED ON:

3 November 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Brooks is to pay Mr and Mrs Axtens the sum of $7,469.00 together with interest on the sum of $7,469.00 calculated from the date of the Application (1 September 2006) to the date of this decision calculated at the rate of 10% per annum on a simple basis by 4:00pm on 6 December 2011.

2. The Application to Correct Order 1 of 17 November 2009 is allowed.

3. Order 1 of 17 November 2009 will be corrected to provide “The rectification orders (being Orders 1 and 2) made by the Tribunal on 9 March 2009 will be vacated.”

4. Mr and Mrs Axtens’ application for costs in relation to the assessment of damages is dismissed.

5. Mr and Mrs Axtens’ application for costs in relation to the Application for Correction is dismissed.

CATCHWORDS:

Building Contract – swimming pool depth not in compliance with contract – contractor ordered to rectify – problems implementing order because homeowners sold property before rectification performed – application to reopen allowed – measure of damages – entitlement to costs of rectification or other remedy

Commercial & Consumer Tribunal Act 2003, s 70, 71, 96
Queensland Civil and Administrative Act 2009, ss 100, 102, 260, 271
Queensland Building Services Authority Act 1991, s 77

Bellgrove v Eldridge (1954) 90 CLR 613
UI International Pty Ltd v Interworks Architects Pty Ltd & Ors[2007]QCA 402
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253
Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355
Queensland Building Services Authority v Johnston [2011] QCATA 265
Lyons v Dreamstarters [2011] QCATA 142
Oshlak v Richmond River Council (1998) 193 CLR 72

Latoudis v Casey (1990) 170 CLR 534 at 557

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Jonathan Keith Axtens and Karen Axtens represented by Mr C Ryall of Counsel instructed by Robert P Palethorpe, Solicitor
RESPONDENT:	Michael John Brooks represented by Mr HA Mellick Jnr of Mellick Smith & Associates, Solicitors

REASONS FOR DECISION

Background

By direction of the Tribunal dated 11 April 2011 this matter was to be determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). As a consequence of the written submissions filed by Mr and Mrs Axtens a short oral hearing was held and the parties supplemented the written submissions with oral submissions.

This dispute relates to the construction of a domestic swimming pool. The original contract price was $31,120. As constructed the pool was slightly shallower than specified in the contract.

Mr and Mrs Axtens, the homeowners, commenced proceedings in the Commercial and Consumer Tribunal (CCT) on 1 September 2006 and originally claimed $93,764.50 for rectification costs for…

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.

Keep reading for free

Create a free CaseChat account to read Axtens v Brooks and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] QCAT 517
Decision Date: 3 November 2011

CaseChat Overview and Summary

The Axtens brought proceedings against Brooks in the Civil and Administrative Tribunal (CAT), a tribunal in New South Wales, concerning a building contract for a swimming pool. The Axtens claimed that the pool did not comply with the contract because it was not deep enough. Brooks initially argued that he was not liable because the Axtens had sold the property before the pool could be rectified. However, the tribunal found that Brooks was liable and ordered him to rectify the pool. The Axtens later applied for costs for the rectification, but Brooks argued that the Axtens were not entitled to those costs because they had sold the property before the pool could be rectified.

The court had to decide whether the Axtens were entitled to the costs of rectification or some other remedy. The court found that the Axtens were not entitled to the costs of rectification because they had sold the property before the pool could be rectified. However, the court found that the Axtens were entitled to some other remedy because Brooks had breached the contract by not building the pool to the correct depth. The court found that the Axtens were entitled to damages in the amount of $7,469.00. The court also found that the Axtens were not entitled to costs for the assessment of damages or for the application to correct the order.

The court found that the Axtens were not entitled to the costs of rectification because they had sold the property before the pool could be rectified. However, the court found that the Axtens were entitled to some other remedy because Brooks had breached the contract by not building the pool to the correct depth. The court found that the Axtens were entitled to damages in the amount of $7,469.00. The court also found that the Axtens were not entitled to costs for the assessment of damages or for the application to correct the order. The court ordered that Brooks pay the Axtens the sum of $7,469.00 together with interest on the sum of $7,469.00 calculated from the date of the Application (1 September 2006) to the date of this decision calculated at the rate of 10% per annum on a simple basis by 4:00pm on 6 December 2011. The court also allowed the Axtens' application to correct Order 1 of 17 November 2009, which will be corrected to provide “The rectification orders (being Orders 1 and 2) made by the Tribunal on 9 March 2009 will be vacated.”

Orders

Orders of the court

2. The Application to Correct Order 1 of 17 November 2009 is allowed.

3. Order 1 of 17 November 2009 will be corrected to provide “The rectification orders (being Orders 1 and 2) made by the Tribunal on 9 March 2009 will be vacated.”

4. Mr and Mrs Axtens’ application for costs in relation to the assessment of damages is dismissed.

5. Mr and Mrs Axtens’ application for costs in relation to the Application for Correction is dismissed.

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.