Brooks and Brooks v Sawdy - [2020] QCAT 79

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brooks and Brooks v Sawdy [2020] QCAT 79

PARTIES: CHRISTINE BROOKS
BRADFORD BROOKS

(applicant)

v

MICHAEL SAWDY

(respondent)

APPLICATION NO/S:

BDL305-18

MATTER TYPE:

Building matters

DELIVERED ON:

20 March 2020

HEARING DATE:

15 November 2019

HEARD AT:

Caloundra

DECISION OF:

Member Fitzpatrick

ORDERS:
1.   The respondent Michael Sawdy pay to the applicants Christine and Bradford Brooks the sum of $2,332.00 within 28 days of the date of this decision.

2.   The counter-application of the respondent Michael Sawdy is dismissed.

3.   The applicants Christine Brooks and Bradford Brooks file and serve any submissions in relation to costs by 4pm 1 April 2020.

4.   The respondent Michael Sawdy file and serve any submissions in reply in relation to costs by 4 pm 15 April 2020.

CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – DAMAGES where parties entered into a binding contract because of Electronic Transactions (Queensland) Act 2001 – entire contract – implied term as to completion within a reasonable time - defective work –termination for breach – no recovery of final instalment by painting contractor – calculation of damages for homeowner.

Electronic Transactions (Queensland) Act 2001 section 14(2).

Queensland Civil and Administrative Tribunal Act 2009 (Qld) sections 100, 105 and Rule 86.

Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B, sections 13(2), 29, 33, 42, 77.

Amann Aviation Pty Ltd v Commonwealth (1990) 174 CLR 64

Brittania Pty Ltd v Parkline Constructions Pty Ltd (2010) 26 BCL 335
Cascol Constructions Pty Ltd v Blanchard & Anor [2013] QCAT 270
Cassidy v Engwirda Construction Co (No2) [1968] Qd R 159
Champtaloup v Thomas [1976] 2 NSWLR 264
Gold Coast Oil Co Pty Ltd v Lee Properties Pty Ltd (1984) 1 BCL 63
Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L [2009] QCA 75.
Kennedy v Collings Construction Co Pty Ltd (1989) 7 BCL 25
Ownit Homes Pty Ltd v Batchelor [1983] 2 Qd R 124
Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Stilk v Myrick (1809) 2 Camp 317

Tan Hung Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178

APPEARANCES & REPRESENTATION:

Applicant:

Ms J Gesell, Solicitor of Neilson Stanton & Parkinson

Respondent:

Mrs A Sawdy, representative

REASONS FOR DECISION

The applicants Mr and Mrs Brooks are owners of a Queenslander style timber house in Gympie.
The respondent Mr Sawdy is a painting contractor who undertook painting work on the Gympie house. Mr Sawdy trades as All Angles Painting and Roof Restoration.
Mr and Mrs Brooks complain that the painting work is defective and incomplete. They seek damages from Mr Sawdy in the sum of $7,382.20 and recovery of all money paid to Mr Sawdy in an amount of $11,407.20 totalling $18,789.40. The Brooks seek an order relieving them of any liability to pay any further sum…

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 Brooks and Brooks v Sawdy

Details

AGLC: Brooks and Brooks v Sawdy [2020] QCAT 79
Case: [2020] QCAT 79
Decision Date: 20 March 2020

CaseChat Overview and Summary

The applicants Christine and Bradford Brooks, as homeowners, engaged the respondent Michael Sawdy, a painting contractor, to complete a painting job on their property. The engagement was governed by a binding contract, as per the Electronic Transactions (Queensland) Act 2001. The contract included an implied term that the work would be completed within a reasonable time. However, the contractor failed to complete the job within a reasonable timeframe, leading to the homeowners terminating the contract and seeking damages.

The primary legal issue was whether the contractor’s breach of the implied term justified the homeowners’ termination of the contract, and if so, what the appropriate measure of damages would be. The court needed to consider the reasonable time for completion and whether the delay constituted a repudiation of the contract by the contractor. Additionally, the court had to determine the homeowners' entitlement to the final instalment of payment and the appropriate calculation of damages for the premature termination.

The court found that the contractor’s failure to complete the painting job within a reasonable time constituted a significant breach of the contract, justifying the homeowners' termination. The implied term was clear that the work should be finished in a timely manner, and the contractor’s delay was substantial enough to amount to a repudiation. Consequently, the homeowners were not required to pay the final instalment. Regarding damages, the court calculated the amount owed to the homeowners, taking into account the reasonable costs incurred due to the breach, and ordered the contractor to pay $2,332.00. The court dismissed the contractor's counter-application and set deadlines for the parties to file and serve submissions on costs.

Orders

Orders of the court

1. The respondent Michael Sawdy pay to the applicants Christine and Bradford Brooks the sum of $2,332.00 within 28 days of the date of this decision.

2. The counter-application of the respondent Michael Sawdy is dismissed.

3. The applicants Christine Brooks and Bradford Brooks file and serve any submissions in relation to costs by 4pm 1 April 2020.

4. The respondent Michael Sawdy file and serve any submissions in reply in relation to costs by 4 pm 15 April 2020.

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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