Burns v Pitcar Ceilings Pty Ltd - [2022] QCAT 229

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Burns & Anor v Pitcar Ceilings Pty Ltd & Anor [2022] QCAT 229

PARTIES:

THOMAS CHARLES BURNS

(first applicant)

AND

ALEXANDER LESLIE BURNS

(second applicant)

V

PITCAR CEILINGS PTY LTD

(first respondent)

AND

JERRY PITAROY

(second respondent)

APPLICATION NO/S:

BDL180-20

MATTER TYPE:

Building matters

DELIVERED ON:

29 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1.       Within 28 days of the date of this order, Pitcar Ceilings Pty Ltd must pay Thomas Charles Burns and Alexander Leslie Burns the sum of $17,486.60, comprising:

(a)   $17,140.80 claim; and

(b) $348.50 filing fee.

2.       The claim against Jerry Pitaroy is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where no formal contract for building work – where builder unlicensed – whether defective building work – where failure to rectify - whether homeowner entitled to damages for failure to rectify – where builder alleges inherent structural defects unrelated to building work caused damage

Queensland Building and Construction Commission Act 1991 (Qld) s 68H, s 77, Schedule 1B, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 23(3), s 32

Barbi v Brewer [2013] QCAT 348
Bryan v Maloney (1995) 182 CLR 609
Canavan v Sutton [2020] QCAT 374
Donoghue v Stevenson [1932] AC 562
Ghama v Crew & Anor [2020] QCAT 149

Hyder Consulting (Australia) Pty Ltd v Wilhelmsen Agency Pty Ltd [2001] NSWCA 313
Robinson v Harman (1848) 1 Ex 850
Stephenson, Peter Thomas & Christine Ann v Queensland Building Services Authority [2005] QCCTB 59
Wright and Anor v Duke Building Pty Ltd and Anor [2017] QCATA 35

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this application about?

The applicant homeowners engaged the first respondent builder (“Pitcar”) to install a plasterboard ceiling with a square setting, to supply and install plasterboard to existing timber framework walls and to repair a damaged wall at their home, pursuant to a quotation dated 19 April 2017.[1]
[1]Annexure A to the Affidavit of Alexander Burns sworn 28 July 2020.
The second respondent, Mr Pitaroy is the sole director/secretary and major shareholder of Pitcar[2] and undertook the plastering work on its behalf.
[2]ASIC search dated 7 September 2019, comprised in Annexure G to Affidavit of Alexander Burns sworn 28 July 2020.
No formal contract was entered into and neither respondent held the required license to carry out the works.
Plastering works were carried out between 20 and 24 April 2017 for which the applicants paid Pitcar the sum of $4,845 (being the GST-exclusive sum quoted). Painters unrelated to the respondents then painted walls, ceilings, skirting and architraves between 27 and 30 April 2017.
By an application for a domestic building dispute filed 29 July 2020,[3] the applicants seek orders that the respondents pay them the sum of $17,140.80 as damages for defective building work comprising:
(a)$10,285.00…

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 Burns v Pitcar Ceilings Pty Ltd

Details

AGLC: Burns v Pitcar Ceilings Pty Ltd [2022] QCAT 229
Case: [2022] QCAT 229
Decision Date

CaseChat Overview and Summary

In Burns v Pitcar Ceilings Pty Ltd, the applicants, Thomas Charles Burns and Alexander Leslie Burns, sought to recover the sum of $17,140.80 from the respondents, Pitcar Ceilings Pty Ltd and Jerry Pitaroy, for defective building work. The respondents resisted the claim, asserting that the defects were due to inherent structural defects unrelated to the work they performed. The matter was determined by the Queensland Civil and Administrative Tribunal (QCAT). The tribunal found that Pitcar Ceilings Pty Ltd was responsible for the defective work as it did not comply with statutory requirements to enter into a building contract, did not hold the required license to carry out the work, and ignored manufacturer’s requirements and Australian Standards. The tribunal further found that the applicants did not accept the risk or contribute to their loss. Accordingly, the tribunal ordered Pitcar Ceilings Pty Ltd to pay the applicants the sum of $17,486.60, comprising the $17,140.80 claim and $348.50 in filing fees. The claim against Jerry Pitaroy was dismissed as he engaged with the applicants only in his capacity as the director of Pitcar Ceilings Pty Ltd.

Orders