Banks v Brookes - [2022] QCAT 247

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Banks v Brookes [2022] QCAT 247

PARTIES:

WAYNE BANKS

(applicant)

v

MARK BROOKES

(respondent)

APPLICATION NO/S:

BDL061-21

MATTER TYPE:

Building matters

DELIVERED ON:

6 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

1. Mark Brookes should pay the sum of $6487.46 to Wayne Banks within 21 days of date of this decision

2. If Mark Brookes does not pay the sum of $6487.46 or any part of this amount to Wayne Banks by the due date then a default interest rate of 6.85% should apply to any amount due and owing to Wayne Banks.

CATCHWORDS:

CONTRACTS – BUILDING CONTRACT – VERBAL CONTRACT - PERFORMANCE OF WORK – CLAIM FOR INTEREST – where the parties entered into a verbal contract – where the owner has claimed that the building work was not completed in accordance with the building contract – where the builder has claimed interest from the date of completion of the works.

Queensland Building and Construction Act 1991(Qld), s77

Bellgrove v Eldridge (1954) 90 CLR 613

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

APPEARANCES & REPRESENTATION:

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

I will summarise the facts in this dispute. Also, from the outset I make the comment that some of the material filed in the Tribunal by the parties is marked “without prejudice”. The parties have not raised this as an issue, so I have considered all this material as being intended to be considered on an “open” basis.
The Applicant, Wayne Banks (Banks), is the owner of a concreting business. The Respondent, Mark Brookes (Brookes), is the owner of a residential property situated at 1 Waigani Avenue, Kawungan, Hervey Bay (Property).
Banks had carried out concreting works, including the driveway, on the Property some seven or eight years prior to undertaking the further works that are the subject of these proceedings. Brookes was happy with this work so he entered into discussions regarding further concreting works to be undertaken on the Property. The works involved constructing concreting works to adjoin the existing concrete driveway, a concrete path, creating a cross over on the Property, acid washing all areas and double sealing all areas.
The parties entered in a verbal contract for these works to be undertaken by Banks and the cost of these works was agreed to be $8000. The invoice (Invoice) for these works is dated 5 August 2020 (see attachment 1 to the statement of Banks dated 11 September 2021 and filed on 15 September 2021). The Invoice sets out the scope of works to be undertaken and the cost of the components of the works. In the statement referred to in this paragraph Banks sets out the dates that the works were undertaken with a completion date of all works on 23 August 2020. This timetable is not disputed…

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: [2022] QCAT 247
Decision Date

CaseChat Overview and Summary

The matter of Banks v Brookes [2022] QCAT 247 was heard and determined on the papers by Member Poteri. The applicant, Wayne Banks, is the owner of a concreting business, and the respondent, Mark Brookes, is the owner of a residential property. The applicant carried out concreting works on the property and claimed that the respondent had failed to pay the full amount owing under the verbal contract. The respondent disputed the quality of the works and withheld payment. The primary issue for determination was whether the applicant was entitled to the outstanding amount under the building contract. The court found that the applicant was entitled to the sum of $6200 owing under the building contract, less a set-off of $750 for the issues regarding the steel grate, expansion joints and the washout areas in the exposed aggregate. The court also found that the applicant was entitled to costs in the sum of $437.46. The court found that the applicant was not entitled to interest on his claim for the debt owing under the building contract. The court ordered the respondent to pay the sum of $6487.46 to the applicant within 21 days of the date of the decision. If the respondent did not pay the amount due by the due date, then a default interest rate of 6.85% should apply to any amount due and owing to the applicant.

Orders