Benn v Myles - [2011] QCAT 567

CITATION:

Benn v Myles & Anor [2011] QCAT 567

PARTIES:	Mr Jason Benn (Applicant)
v
Mr Anthony James Myles AJ Myles & Co Pty Ltd ACN 111 244 823 (Respondents)

APPLICATION NUMBER:

BD492-09

MATTER TYPE:

Building matters

HEARING DATE:

19 and 20 July 2011

HEARD AT:

Cairns

DECISION OF:

Ms Joanne Browne, Member

DELIVERED ON:

18 November 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent, Mr Anthony James Myles pay the amount of $140,340.72 to the Applicant, Mr Jason Benn by 4.00pm on 16 December 2011.

CATCHWORDS:

Breach of contract – exclusion of liability – defective and incomplete work

Section 77 Queensland Building Services Authority Act 1991

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr C J Ryall instructed by Robin Smith Solicitor
RESPONDENT:	Mr J J Sheridan instructed by Williams Graham Carmen Solicitors

REASONS FOR DECISION

Introduction

Mr Benn had plans to relocate his family from city life to live on a family farm (in El Arish).
Mr Benn and his wife (Suari Mason) were attracted to colonial style homes. In particular Mr Benn liked the “tongue in groove style” and wooden floors, typical features of colonial (Queenslander) style homes.

Mr Benn and his wife inspected a colonial style Queenslander house (circa 1921) with a local builder (Mr Gary Kuhn) in early September 2008 at 2 Mill Reserve, Mourilyan, prior to Mr Benn purchasing the house for $11,500.00.[1]
[1]Letter from Bundaberg Sugar to Mr Jason Benn dated 16 September 2008, “5”, Exhibit 15, document 5. The house was also inspected by a builder (Mr Rob Wolf) in late September 2008.

It was Mr Benn’s intention to relocate the house to the farm in El Arish. Mr Benn planned to undertake some renovations to the house prior to living in it with his family.
Mr Myles is in the business of house relocation. Mr Benn saw Mr Myles’ advertisement on the yellow pages website (on the internet) for “Complete House Relocation Services” and contacted Mr Myles in early November 2008.

Mr Benn and Mr Myles signed a contract on 6 January 2009 to relocate the house from Mill Reserve, Mourilyan to 379 Granadilla Road, El Arish (approximately 30 kilometres distance).

The amount to be paid by Mr Benn to Mr Myles in consideration for the relocation of the house was $48,000.00.

The house was to be cut into two sections (halves) and transported in 2 stages – one half of the house and then the other. There was some delay in transporting the house due to heavy rainfall and a breakdown in the machinery used for relocation.

During completion of the works (relocation), a dispute arose between the parties. Mr Benn claims that there was damage to the house as a result of the rainfall prior to the contract being completed, and (amongst others) that Mr Myles failed to undertake the contracted work and complete certain repairs and replacements as agreed (and in accordance with the contract plans and the implied statutory warranty).

Mr Benn filed an application (and a…

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 Benn v Myles

Details

AGLC: Benn v Myles [2011] QCAT 567
Case: [2011] QCAT 567
Decision Date: 18 November 2011

CaseChat Overview and Summary

The matter before the court involved a dispute between Mr Jason Benn, the applicant, and Mr Anthony James Myles, the respondent, regarding the completion of construction work on a property. The applicant alleged that the respondent breached their contractual obligations by failing to complete the work to a satisfactory standard and by providing incomplete and defective work. The court was required to determine whether the respondent was liable for the breach of contract and, if so, to what extent.

The primary legal issue before the court was whether the respondent breached the terms of the contract by failing to complete the work in a satisfactory manner and by providing incomplete and defective work. The court also needed to consider whether the exclusion of liability clause in the contract absolved the respondent of liability for the breach. The applicant argued that the clause was unreasonable and, therefore, not enforceable. The respondent, on the other hand, contended that the clause was reasonable and that he was not liable for the breach of contract.

The court found that the respondent breached the terms of the contract by failing to complete the work in a satisfactory manner and by providing incomplete and defective work. The court held that the exclusion of liability clause was not enforceable as it was unreasonable and not in accordance with the terms of the contract. The court further found that the respondent was liable for the breach of contract and ordered him to pay the applicant the sum of $140,340.72 by a specified date. The court held that the amount was reasonable and appropriate compensation for the breach of contract.

Orders

Orders of the court

1. The Respondent, Mr Anthony James Myles pay the amount of $140,340.72 to the Applicant, Mr Jason Benn by 4.00pm on 16 December 2011.

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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