Brown v Smith - [2023] QCAT 341

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brown v Smith [2023] QCAT 341

PARTIES:

EMMA BROWN

(applicant)

v

KEVIN SMITH

(respondent)

APPLICATION NO/S:

BDL 292-21

MATTER TYPE:

Building matters

DELIVERED ON:

4 September 2023

HEARING DATE:

21 April 2023

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

1. The applicant’s claim is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF - where a prospective home owner engaged a building inspector to carry out and report on a pre-purchase inspection of a house – where the inspector failed to identify substantial and significant defects in the floor frame of the house – where the prospective home owner purchased the house purportedly reliant on the inspector’s report – where the home owner subsequently discovered the substantial and significant defects in the house – where the home owner seeks damages against the inspector for the cost of rectifying the defects in the house

Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77, sch 2

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Overview

The applicant is a homeowner. The respondent is a now retired building inspector who had previously conducted a business of performing and reporting on inspections of completed houses.
The applicant had contracted the respondent to do such an inspection and report on it in satisfaction of a condition of the purchase contract for the house. He conducted an inspection and provided a report, such which did not identify any defect in the floor frame of the house, and moreover reported there were no defects in the floor frame. The applicant asserts she relied on his report in deciding to purchase the house, although as I will discuss in these reasons there was an absence of clarity in that regard given the applicant entered into two contracts for the said purchase, the first contract not proceeding to settlement.
Subsequent to purchasing the house and occupying it, the applicant discovered what can readily be described as significant defects in the floor frame of the house requiring substantial rectification, such which is said to encompass substantial consequential construction work within the house.
The applicant seeks damages from the respondent. The applicant’s application lacks clarity, and is confused and confusing in this regard, not only in terms of the quantum claimed, but in terms of the cause of action on which she relies. I discuss this later in these reasons.
The respondent defends the claim in its entirety. Whilst he accepts the fact that he did not inspect the underfloor space, he says this is because it was inaccessible, but accepts that there is no qualification given in his report to that effect. In terms of the issue of it being inaccessible, there was no evidence before me to support that.
On the evidence before me, his report expressly stated that access was not restricted to the sub-floor space, that he did conduct the…

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 Brown v Smith

Details

AGLC: Brown v Smith [2023] QCAT 341
Case: [2023] QCAT 341
Decision Date

CaseChat Overview and Summary

The matter of Brown v Smith was heard and determined by Member Taylor of the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Emma Brown, sought damages from the respondent, Kevin Smith, a retired building inspector, for his failure to identify substantial defects in the floor frame of a house she purchased, relying on his inspection report. The respondent denied liability, asserting the defects were inaccessible during his inspection. The key issues were whether the respondent failed to properly perform his inspection, whether the applicant suffered a loss as a result, and the quantum of damages if any.

Member Taylor found that the respondent did fail to properly perform his inspection and reporting duties, as evidenced by his own report stating that he had unrestricted access and found no defects, despite clear evidence of substantial defects present at the time of inspection. However, the applicant's claim failed due to insufficient evidence to support her assertions of reliance on the report for the second purchase contract and the claimed damages. She could not prove the extent of the damages or that they were directly caused by the respondent's failure. Additionally, the second purchase contract was not contingent on a satisfactory building inspection report, weakening her claim of reliance.

Consequently, Member Taylor dismissed the applicant's claim, finding that while the respondent was at fault, the applicant did not provide sufficient evidence to substantiate her claim for damages. The failure of the proceeding was due to the applicant's inability to provide the necessary evidence, not due to the merits of the respondent's defence.

Orders