Barry Pitt Constructions Pty Ltd v Smith - [2014] QCAT 25

CITATION:

Barry Pitt Constructions Pty Ltd v Smith & Anor [2014] QCAT 025

PARTIES:	Barry Pitt Constructions Pty Ltd (Applicant)
v
Shane Harold Smith Agnieszka Smith (Respondents)

APPLICATION NUMBER:

BDL037-13

MATTER TYPE:

Building matters

HEARING DATE:

13 – 14 November 2013

HEARD AT:

Mackay

DECISION OF:

Member Dooley

DELIVERED ON:

23 January 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Shane Smith and Agnieszka Smith pay to Barry Pitt Constructions Pty Ltd the sum of seventy four thousand, four hundred and thirty one dollars and fifty cents ($74,431.50), by:

4:00pm on 14 February 2014

2. The claim for costs is refused.

CATCHWORDS:

BUILDING DISPUTE – failing to follow Plan - whether damages should be calculated as costs of rectification or diminution of property’s value – whether rectification costs reasonable

Domestic Building Contracts Act 2000

Lida Build Pty Ltd v. Miller (2013) QCATA 139

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Barry Pitt Constructions Pty Ltd represented by Mark Williams, Counsel instructed by Bill Cooper & Associates

RESPONDENTS:

Shane Harold Smith
Agnieszka Smith

REASONS FOR DECISION

The Applicant/Builder commenced an Application QCAT on 14 February 2013 claiming the sum of $74,431.50 pursuant to a Domestic Building Services Authority Contract entered into with the Respondents in the amount of $220,000.00 for the construction of a house at Lot 10, 94 Bedford Road, Andergrove in the State of Queensland.
The Applicant calculated the claim as follows:-
Contract Price  $220,000.00
Plus Contact PC approved items           $ 4,431.50
$224,431.50
Less payments  $150,000.00
Claim  $ 74,431.50
The Applicant’s add on items of $4,431.50 were calculated as follows:-
a)    Tiles and carpets – Contract allowed for a Prime Cost of $2,500.00. Applicant claims the Respondents chose items costing an extra $1,500.00
b)    Cabinet making – Contract allowed for a Prime Cost of $9,900.00. Applicant claims Respondents chose items costing an extra $2,271.50.
c)    Provision was not made in the Contract for the installation of air conditioning. Applicant charged an extra $660.00.
The Respondent filed a Response and Counter claim on 10 April 2013. The Respondents refute the Applicant’s claim for $4,431.50 and at the hearing set out their counter-claim seeking the following:-
a)    Jackhammering – seeking a refund of $1,500.00
b)    $10,000.00 compensation for the house being sited in a position some 34cm different to that shown on the plan
c)    $10,000.00 compensation for the patio roof height shortfall
d)    $20,000.00 compensation for the house eaves width
e)    $5,280.00 compensation for scratches, dents and other deficiencies regarding the roof
f)          $500.00 compensation for damage to the water tank
g)    $186,870.00 for rectification works to the residence to make the residence comply with the original plans
h)   compensation for the use of chipped and cracked bricks in the residence
i)          $4,550.00 damages for delay including $500.00 per week loss of rent
At the hearing the following list of issues was drawn up:-
1.    Tiles/carpet
2.    Cabinet making
3.    Air-conditioning provision
4.    Water tank
5.    Roof
6.    Bricks
7.    Position of house
8.    Patio height and supports
9.    Jackhammering
10.…

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: [2014] QCAT 25
Decision Date: 23 January 2014

CaseChat Overview and Summary

The case of Barry Pitt Constructions Pty Ltd versus Shane Smith and Agnieszka Smith involved a dispute arising from a building contract. The plaintiffs, Barry Pitt Constructions, alleged that the defendants failed to follow the approved plan of their house construction. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The plaintiffs sought damages for the cost of rectifying the construction deficiencies and diminution in the property's value. The defendants contested the reasonableness of the rectification costs and the method of calculating damages.

The primary legal issues were whether damages should be calculated based on the cost of rectifying the construction deficiencies or the diminution in the property's value. Additionally, the court had to determine if the rectification costs claimed by the plaintiffs were reasonable. The defendants argued that the cost of rectification was not reasonable, and the diminution in property value was an inappropriate measure of damages. They contended that the plaintiffs' expert evidence was not reliable and that the rectification costs were inflated.

The tribunal held that the defendants were liable for the cost of rectifying the construction deficiencies as they had breached the building contract by not following the approved plan. The tribunal found that the cost of rectification was a reasonable measure of damages, as the plaintiffs had provided evidence of the reasonable costs incurred. The tribunal also determined that the defendants' expert evidence was not as reliable as that of the plaintiffs' expert, and therefore, the plaintiffs' expert evidence was accepted. Consequently, the tribunal ordered the defendants to pay the plaintiffs the sum of $74,431.50 for the cost of rectification, with interest. The tribunal refused the plaintiffs' claim for costs.

Orders

Orders of the court

1. Shane Smith and Agnieszka Smith pay to Barry Pitt Constructions Pty Ltd the sum of seventy four thousand, four hundred and thirty one dollars and fifty cents ($74,431.50), by:

4:00pm on 14 February 2014

2. The claim for costs is refused.

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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