CITATION: | Budge v JMK Building Pty Ltd [2018] QCAT 174 |
PARTIES: | David Budge and Christine Budge |
| v | |
| JMK Building Pty Ltd (Respondent) | |
APPLICATION NUMBER: | BDL201-16 |
MATTER TYPE: | Building matters |
HEARING DATE: | 19 and 20 September 2017 |
HEARD AT: | Cairns |
DECISION OF: | Member Howe |
DELIVERED ON: | 26 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent pay to the applicants the sum of $7,900.00 within 7 days of the date hereof. 2. The parties file and serve submissions as to costs within 14 days of the date of this order and each file and serve any submissions in reply within 14 days thereafter. |
CATCHWORDS: | CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where owners alleged defective building work – where cladding sheets not joined as required by architectural plans – where alternate method of fixing confirmed by manufacturer – where alternate method proved inadequate – where further method of fixing recommended by manufacturer – where owners refused to permit – where owners required fixing in accordance with contract plans – whether costs of fixing by replacing all sheets and refixing in accordance with original plans unreasonable in the circumstance CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where floorboards showing cupping effect – where moisture content apparently not an issue – whether secret nailing contributed to cupping – where secret nailing probable cause CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – solatium – where cladding primarily to achieve trouble free maintenance – where aesthetic considerations secondary – where significantly cheaper method of fixing reasonable – where replacement of cladding and re-fixing pursuant to strict terms of contract unreasonable remedy in the circumstances –where an estimate of costs of rectification necessary in absence of evidence Domestic Building Contracts Act 2000 (Qld), Archibald v Powlett [2017] VSCA 259 |
APPEARANCES: | |
APPLICANT: | Mr and Mrs Budge represented themselves |
RESPONDENT: | Mr D McKinstry, Solicitor of Williams, Graham Carman, represented the respondent |
REASONS FOR DECISION
Mr and Mrs Budge contracted with the respondent builder to build them a home at Oak Beach near Port Douglas in North Queensland. The price was $376,869 and work…
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- AGLC
- Budge v JMK Building Pty Ltd [2018] QCAT 174
- Case
- [2018] QCAT 174
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the costs of replacing all the cladding sheets and refixing them in accordance with the original plans were unreasonable in the circumstances, whether the secret nailing contributed to the cupping of the floorboards, and what damages were recoverable by the applicants. The court found that the costs of rectifying the defects by replacing all the cladding sheets and refixing them in accordance with the original plans were unreasonable in the circumstances. The court held that the cladding was primarily to achieve trouble free maintenance and that aesthetic considerations were secondary. The court also found that the secret nailing was the probable cause of the cupping of the floorboards. The court awarded the applicants damages in the sum of $7,900.00.
The court ordered that the respondent pay the applicants the sum of $7,900.00 within 7 days of the date of the order. The court also ordered that the parties file and serve submissions as to costs within 14 days of the date of the order and each file and serve any submissions in reply within 14 days thereafter.
Orders
Orders of the court
1. The respondent pay to the applicants the sum of $7,900.00 within 7 days of the date hereof.
2. The parties file and serve submissions as to costs within 14 days of the date of this order and each file and serve any submissions in reply within 14 days thereafter.
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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