Burke v Brown - [2023] QCAT 322

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Burke v Brown [2023] QCAT 322

PARTIES:

KIRSTY BURKE

(applicant)

v

SIMON BROWN

(respondent)

APPLICATION NO/S:

BDL004-20

MATTER TYPE:

Building matters

DELIVERED ON:

18 August 2023

HEARING DATE:

14 August 2023

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Applicant’s claim is dismissed

CATCHWORDS:

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT – DAMAGES - where applicant alleges defective building work – where respondent pleads s 10 of the Limitation of Actions Act 1974 (Qld) – where 6 years is the period of limitation prescribed – where cause of action for a claim in a breach of contract arose in 2005 – where the claim should have been commenced by 2011 - where claim in tort arose when latent defect became manifest - where homeowner exercising reasonable diligence would have become aware of defect before 2014 - where claim brought in 2020 - where the claim for damages was not commenced within the period of limitation prescribed

Limitation of Actions Act 1974 (Qld)

Domestic Building Contracts Act 2000 (Qld)

Ramm v Ramm [2020] QCAT 102

Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27

Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd (2015) 1 Qd R 476

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

REASONS FOR DECISION

The Applicant (Kirsty Burke) wished to build underneath her existing home in Camp Hill, Brisbane. In June 2004 she engaged the Respondent (Simon Brown) a builder to raise her house on steel posts and construct accommodation underneath for her aged mother. Work commenced either late in 2004 or early 2005 and was completed by July 2005. Ms Burke and her family, at the time, were impressed by Mr Brown’s attention to detail, the quality of his workmanship and his professional manner in which he completed the build.[1]
[1]Applicant’s documents page 58 letter 6 May 2005.

Background to the dispute

In 2019, Ms Burke was desirous of selling the property and an interested purchaser commissioned a building inspection which revealed corrosion issues involving the steel posts. An initial engineer’s report opined that the cause was the failure to protect the steel posts where they entered the edge of the new concrete slab with a corrosive resistant paint/coating. The manufactured posts[2] had a proprietary name of Duragal and had a hot dip galvanised 100g/m²coating. In about 2002 the manufacturer of Duragal considered the coating to be inadequate protection against corrosion in certain circumstances and recommended the application of a further primer.[3] The position of some of the posts left them exposed to the elements. The damage was said to be extensive, and Ms Burke says she has been unable to sell the property. Ms Burke says she was unaware of the damage as it was concealed by a thin layer of concrete.
[2]Secure Steel Pty Ltd supplied 75 x 75 x 4. 0 DURAGAL SHS which complied with Australian Standards.…

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 Burke v Brown

Details

AGLC: Burke v Brown [2023] QCAT 322
Case: [2023] QCAT 322
Decision Date

CaseChat Overview and Summary

Kirsty Burke, the applicant, sought to recover damages from Simon Brown, the respondent, for defective building work carried out on her property in 2005. The matter was heard and determined by Member King-Scott of the Queensland Civil and Administrative Tribunal (QCAT) on 14 August 2023, with reasons for the decision delivered on 18 August 2023. The applicant alleged that the respondent had failed to apply an appropriate protective coating to the steel posts supporting the raised floor of her home, leading to significant rust damage. The respondent denied liability, arguing that the responsibility for applying the protective coating fell to the applicant or her partner, Steven Lockhart. Additionally, the respondent raised a limitation defence, contending that the applicant's claim was statute-barred.

The primary legal issues before the tribunal were whether the applicant's claim was time-barred under the Limitation of Actions Act 1974 (Qld) and, if not, whether the respondent had breached his contractual obligations by failing to apply an appropriate protective coating to the steel posts. The tribunal considered the applicable limitation period, the nature of the cause of action, and the terms of the contract between the parties. The tribunal also examined the evidence and expert reports regarding the construction and maintenance of the property, focusing on the application of protective coatings to the steel posts and the extent of the rust damage.

The tribunal found that the applicant's claim was statute-barred as it was not brought within the six-year limitation period prescribed by the Limitation of Actions Act 1974 (Qld). The tribunal accepted that the cause of action for a claim in tort arose when the latent defect became manifest, which was when the rust damage was revealed during a building inspection in September 2019. However, the tribunal determined that a homeowner exercising reasonable diligence would have become aware of the defect before January 2014. Consequently, the claim, which was brought in January 2020, was not commenced within the period of limitation prescribed. Even if the claim had not been statute-barred, the tribunal found that the respondent had not breached his contractual obligations. The tribunal accepted that the responsibility for applying the protective coating fell to the applicant or her partner, and there was no evidence that the respondent had failed to advise the applicant of the need for such a coating. The tribunal also found that any rust damage was not solely due to the respondent's actions but was exacerbated by the applicant's failure to maintain the property.

The tribunal dismissed the applicant's claim, finding that it was statute-barred and that the respondent had not breached his contractual obligations. The tribunal made no orders as to costs.

Orders