Bakker & Kramer v Richards Projects Pty Ltd - [2013] QCAT 388

CITATION:

Bakker & Kramer v Richards Projects Pty Ltd [2013] QCAT 388

PARTIES:	Jan Bakker and Anna Kramer (Applicants)
v
Richards Projects Pty Ltd (Respondent)

APPLICATION NUMBERS:

BDL048-12; BDL232-12

MATTER TYPE:

Building Matters

HEARING DATE:

29 & 30 April 2013

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Member

DELIVERED ON:

26 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Jan Bakker and Anna Kramer pay Richards Projects Pty Ltd the sum of $6,601 plus interest of $3135.92 by 9 August 2013.

CATCHWORDS:

BUILDING MATTERS - Domestic building dispute and minor debt claim heard together – general rule for assessing damages in building cases – the qualification rule that the rectification proposed be reasonable – definition of deck – definition of verandah – efficacy of termite barrier – loss of amenity - costs – costs of minor civil dispute minor debt heard in building list

Queensland Civil and Administrative Tribunal Act 2009, ss24(1)(c), 28(3)(b) and (c)
Domestic Building Contracts Act 2000, ss42(1), (5) and (6), 51(2)
Queensland Building Services Authority Act 1991, ss42(14), 79, 84

Bellgrove v Eldridge (1954) 90 CLR 613
Briginshaw v Briginshaw (1938) 60 CLR 336
Lida Build Pty Ltd v Miller & Anor [2013] QCATA 139

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	The Applicants represented themselves.
RESPONDENT:	The Respondent was represented by its director Robert Richards.

REASONS FOR DECISION

In June 2010 Mr Bakker and Ms Kramer engaged Richards Projects Pty Ltd, builders, to build them a home on their land at Reedy Creek. They signed a residential building contract on 4 June, 2010. It was a large home, steel framed and in brick veneer.
Mr Bakker and Ms Kramer had previously engaged another builder to do the job, but that builder had done some preparatory work only. Mr Bakker and Ms Kramer already had the prefabricated steel frame on site and they supplied existing plans to Richards.
Richards built the home. The owners weren't entirely happy however. They refused to pay the last amounts claimed by Richards.
The Building Services Authority (BSA) was called in. They made recommendations and Richards rectified certain items of complaint. The BSA was called in a second time by the owners who had fresh complaints but the BSA declined to make further orders[1].
[1]Relying on s42(14) Queensland Building Services Authority Act 1991 (unfair to require the builder to perform rectification work).
Richards applied in the minor civil dispute jurisdiction of QCAT to recover the balance monies owed to it. Mr Bakker and Ms Kramer commenced proceedings for a domestic building dispute in the Tribunal. The matters were ordered to be heard together.

The Claims

Richards seeks payment of $14,794 as the balance monies still owing under the contract. Mr Bakker and Ms Kramer initially sought $50,000 cost of rectification in their domestic building application and relief from payment of $13,525 of the moneys claimed by Richards, but by time of hearing the cost of rectification claimed had grown to $120,315.

The Garage

The garage is the most significant item…

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.

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Details

Case: [2013] QCAT 388
Decision Date: 26 July 2013

CaseChat Overview and Summary

The dispute between Jan Bakker and Anna Kramer and Richards Projects Pty Ltd was heard in the Queensland Civil and Administrative Tribunal. The plaintiffs claimed damages for alleged defects in the construction of a home built by the defendant. The plaintiffs sought to have the case heard in the building list, but the tribunal noted that a minor debt claim was also before it. The tribunal was required to decide if the debt claim should be heard in the building list or transferred to the general list, and whether the rectification proposed by the plaintiffs was reasonable. The tribunal also had to consider the definition of a deck and verandah, the efficacy of the termite barrier, loss of amenity and costs.

The tribunal found that the minor debt claim should be heard in the general list as it was not related to the building work. The tribunal found that the rectification proposed by the plaintiffs was reasonable, but that the definition of a deck and verandah was not relevant to the case. The tribunal found that the termite barrier was not effective, but that the plaintiffs had not suffered any loss of amenity as a result. The tribunal awarded damages of $6,601 plus interest of $3135.92 to Richards Projects Pty Ltd.

The tribunal ordered that Jan Bakker and Anna Kramer pay Richards Projects Pty Ltd the sum of $6,601 plus interest of $3135.92 by 9 August 2013. The tribunal also ordered that the costs of the minor debt claim be paid by the plaintiffs.

Orders

Orders of the court

1. Jan Bakker and Anna Kramer pay Richards Projects Pty Ltd the sum of $6,601 plus interest of $3135.92 by 9 August 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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