1. Alan Tony Brewer must pay Noel Ronald Barbi the sum of $14,220.80 by 9 August 2013, together with interest at the rate of 10% on that sum on and from 28 June 2012 until and including the date of payment.

2. Alan Tony Brewer must pay Noel Ronald Barbi’s costs of and incidental to the proceeding on the standard basis of assessment in accordance with the Magistrates Court scale of costs.

3. If the amount of Noel Ronald Barbi’s costs is not agreed with Alan Tony Brewer within 28 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at the cost of Alan Tony Brewer.

4. Alan Tony Brewer is to pay Noel Ronald Barbi’s costs (as agreed or assessed) within 28 days of such agreement or assessment.

CATCHWORDS:

BUILDING MATTERS - Claim for damages for negligent installation of glazing by a licensed contractor; oral contract; work not complete; glazing not waterproof; failure to follow manufacturer’s installation manual; where glazing demolished and replaced; post sealing; whether windows could be rectified to ensure compliance with Australian Standard AS2047, “Windows in Buildings- Selection and Installation”.

Queensland Building Services Authority Act 1991 (Qld) ss 75; 77(2)(c);77(1)(h)
Queensland Building Services Authority Regulation 2003 (Qld) r 34B(1)(c) and 34B(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld). ss 3, 100; 107
Queensland Civil and Administrative Tribunal Rules 2009 (Qld). r 87
Domestic Building Contracts Act 2000 (Qld) s 30;

Ballina Building Services Pty Ltd v Doyle [2010] QCAT 643;
Bryan v Maloney (1995) 182 CLR 609;
Voli v. Inglewood Shire Council (1963) 110 CLR 74;
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Scottish Benefit Society v Chorley (1884)QBD 872

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Noel Ronald Barbi represented by Ms Strijland of N.R. Barbi

RESPONDENT:

Alan Tony Brewer represented by Mr Garlick of counsel.

REASONS FOR DECISION

In November 2011 renovation work began at Mr Barbi’s unit in New Farm. As part of these renovations Mr Brewer installed a wall of aluminium casement windows and a glass roof to convert an existing pergola into an internal space. The parties did not enter into a written agreement.
Mr Brewer was recommended as a glazier by the chairperson of Mr Barbi’s body corporate. He is licenced to work with glass and aluminium and has a clear licence.
On 8 February 2012 it rained and the windows leaked. Mr Barbi says that Mr Brewer walked off the job and would not return to rectify the defects, so he had to engage another contractor to replace the glazing system at a cost…

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 Barbi v Brewer

Details

AGLC: Barbi v Brewer [2013] QCAT 348
Case: [2013] QCAT 348
Decision Date

CaseChat Overview and Summary

The applicant, Noel Ronald Barbi, brought a claim against Alan Tony Brewer for damages for negligent installation of glazing. The respondent, Mr Brewer, was a glazier who installed aluminium casement windows and a glass roof to convert an existing pergola into an internal space at Mr Barbi’s unit in New Farm. The parties did not enter into a written agreement. The windows leaked and Mr Brewer walked off the job. Mr Barbi engaged another contractor to replace the glazing system at a cost of $14,080 plus GST. Mr Brewer says when he left the site the work was merely incomplete, not defective. The Tribunal found that Mr Brewer owed Mr Barbi a duty of care because he assumed responsibility for the glazing and Mr Barbi relied on Mr Brewer’s professional skill and judgment in relation to the glazing. Mr Brewer breached his duty of care to Mr Barbi because he employed a dry joint construction method, which was not usual industry practice. Mr Barbi suffered damage as a result of Mr Brewer’s failure to install the windows to industry and certification standards. The damage complained of by Mr Barbi was directly attributable to Mr Brewer’s failure to follow the manufacturer’s directions, so it is not too remote. The Tribunal ordered that Mr Brewer must pay Mr Barbi the sum of $14,220.80 by 9 August 2013, together with interest at the rate of 10% on that sum on and from 28 June 2012 until and including the date of payment. Mr Brewer must also pay Mr Barbi’s costs of and incidental to the proceeding on the standard basis of assessment in accordance with the Magistrates Court Scale of Costs. If the amount of Mr Barbi’s costs is not agreed with Mr Brewer within 28 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at the cost of Mr Brewer. Mr Brewer is to pay Mr Barbi’s costs (as agreed or assessed) within 28 days of such agreement or assessment.

Orders