Campagnolo v Bennett - [2020] QCAT 13

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Campagnolo v Bennett [2020] QCAT 13

PARTIES:

DONNA CAMPAGNOLO
(applicant)

v

JESSE SEABROOK BENNETT

(respondent)

APPLICATION NO/S:

BDL144-18

MATTER TYPE:

Building matters

DELIVERED ON:

24 January 2020

HEARING DATE:

16 October 2019

HEARD AT:

Cairns

DECISION OF:

Member King-Scott

ORDERS:

The Tribunal directs by way of interim orders that:

1.   I order Jesse Seabrook Bennett pay Donna Campagnolo the sum of $220,000.00 in respect of her claim;

2.   I dismiss Jesse Seabrook Bennett’s counter-application;

3.   The order to pay is stayed until further argument in relation to costs and the form of final orders;

4.   I invite the parties to make submissions in relation to costs;

5.   I direct the parties file written submissions, if any, as to costs as follows:

(a)     Donna Campagnolo by 4.00 pm 7 February 2020;

(b) Jesse Seabrook Bennett by 4.00 pm 14 February 2020.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – Domestic Building Dispute – builder’s failure to progress work – builder abandons works – whether builder or owner entitled to terminate – whether subsequent incomplete and defective work found subsequently to repudiation a further basis for repudiation – where defective and incomplete work – reasonable costs of rectification – whether owner entitled to solatium

Queensland Building and Construction Commission Act 1999 (Qld)

Clarke ν President, Councillors and Ratepayers of the Shire of Gisborne [1984] VR 971
Centreplex Pty Ltd v Noahs Rosehill Waters Pty Ltd [2019] WASC 252
Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2012] 2 Qd R 114
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Mersey Steel and Iron Co. v Naylor, Benzon & Co (1884) 9 AC 434
Ross T Smyth & Co Ltd v T D Bailey, Son & Co (1940) 3 All E R 60

Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359

Shevill v Builders Licensing Board (1982) 149 CLR 620

APPEARANCES & REPRESENTATION:

Applicant:

D McKinstry, solicitor of WGC Lawyers

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

Myra Campagnolo owned a home at 35 Hargrave Street Kurrimine Beach situated approximately hundred kilometres or so south of Cairns. The Applicant, Donna Campagnolo is the homeowner’s daughter and resided in the home. She is authorised to bring this claim on her mother's behalf.
In 2015 the Applicant's mother authorised her to carry out renovations to the home. The Applicant had been impressed with some work her cousin, the Respondent, had carried out at another property. The Respondent is an architect and, the time of negotiations in September 2004, recently had obtained a QBCC Builder's License in the class of ‘Builder-Low Rise’.
The Applicant says she asked the Respondent to carry out the renovation work as she knew he was looking for work. She informed the Respondent that she wanted to remove the existing carport and build a single story extension including a…

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 Campagnolo v Bennett

Details

AGLC: Campagnolo v Bennett [2020] QCAT 13
Case: [2020] QCAT 13
Decision Date: 24 January 2020

CaseChat Overview and Summary

The case of Campagnolo v Bennett involves a dispute between the parties regarding the performance of a building contract. The Applicant, Donna Campagnolo, brought an action against the Respondent, Jesse Seabrook Bennett, for breach of contract related to the renovation of her home. The Respondent, a licensed builder, was contracted to complete the renovation works under a written agreement. However, the works were left incomplete and defective, leading to the Applicant seeking damages for the breach of contract.

The central legal issue before the court was whether the Respondent was entitled to terminate the contract, and if so, whether the subsequent defective and incomplete work constituted a further basis for repudiation. Additionally, the court had to determine the reasonable costs of rectification and completion of the works, as well as whether the Applicant was entitled to solatium for the inconvenience and distress caused by the Respondent's actions.

The court found that the Applicant was indeed entitled to recover damages for breach of contract. The evidence presented showed that there was defective and incomplete work that required rectification or completion. Although the contractual relationship was governed by the written contract, the court acknowledged the unusual manner in which payments were formulated under the contract. The court also noted that the works were left abandoned to the weather for a significant period of time, leading to some of the defective work. The court assessed the damages at $220,000.00, based on expert evidence and the range of costs provided for rectifying and completing the works.

The Tribunal made interim orders that Jesse Seabrook Bennett pay Donna Campagnolo the sum of $220,000.00 in respect of her claim, dismissed Bennett’s counter-application, and stayed the order to pay until further argument in relation to costs and the form of final orders. The parties were invited to make submissions in relation to costs, with deadlines set for each party to file written submissions.

Orders

Orders of the court

The Tribunal directs by way of interim orders that:

1. I order Jesse Seabrook Bennett pay Donna Campagnolo the sum of $220,000.00 in respect of her claim;

2. I dismiss Jesse Seabrook Bennett’s counter-application;

3. The order to pay is stayed until further argument in relation to costs and the form of final orders;

4. I invite the parties to make submissions in relation to costs;

5. I direct the parties file written submissions, if any, as to costs as follows:

(a) Donna Campagnolo by 4.00 pm 7 February 2020;

(b) Jesse Seabrook Bennett by 4.00 pm 14 February 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mere inconvenience will not suffice; nor will the inconvenience of having to litigate an action.[17] If coupled with physical inconvenience leading to an adverse psychological reaction such as stress or nervous condition then damages may be recoverable in tort or under the Hadley v Baxendale principles. There is no evidence here to justify such a claim.[17]Clarke ν President, Councillors and Ratepayers of the Shire of Gisborne [1984] VR 971.Conclusion I am satisfied that the Applicant is entitled to recover damages for breach of contract. Varying estimates have been provided supported by expert evidence that is largely undisputed by the Respondent. The experts agree that there is defective and incomplete work that requires rectification or completion. Although, the Applicant argues that the basis of the agreement was not as formal as the terms and conditions contained in the Contract agreed to by the parties, the Contract was a necessary requirement for the Respondent to undertake the work as a Licensed Builder under the QBCC Act. I am satisfied that the parties intended their contractual relationship to be governed by the terms of the written contract. Nevertheless, the manner in which payments under the Contract were formulated were unusual and, presumably, designed to relieve the Respondent of any prolonged or substantial financial outlay. The works appear to have been left abandoned to the weather for a significant period of time. Some of the defective work can be attributed to the weathering. An example would be the kitchen bench tops which were of stainless steel but are now pitted with rust and would require replacement. I note that they were to be replaced anyway and replacement is not compensable as the Applicant has made her own arrangements to replace the kitchen at her cost. However, it serves as an example that the house was exposed to the weather. Neither, party has addressed this issue and in the absence of any submissions I do not intend to make any findings as to who is responsible for the deterioration or the reasons why the house was allowed to deteriorate. I note that the Applicant has paid the Respondent a total of $248,733.00 being $47,928.00 more than the contract price for an incomplete and largely defective renovation. I was referred to the Contract General conditions 4.4 and 4.5 (prime cost items) and 4.11 (provisional sums) which are relied upon by the Applicant as a basis for submitting that nothing further was owed under the contract either because the works were included in the fixed price component of the contract, or the prime cost items and provisional sums were warranted by the Respondent as having been prepared with reasonable skill and care and no further increase should have been required. The range of costs of rectification and completion of the incomplete works based on the assessment of the experts is $198,340.00 to $292,247.00. The assessment of the damages in this case cannot be assessed with the degree of precision that can often be achieved in other building cases. I agree that Mr Sultana’s quotation, probably, is closer to the actual costs of rectifying and completing the works. However, the estimates and quotations differ substantially in some cases, and it is not always possible to disentangle excluded items and incidental costs associated with those items. For those reasons, I have assessed damages more broadly at $220,000.00. I note that the Applicant has requested an opportunity to make submissions in relation to costs. The Respondent has indicated that in the event that I find against him that I allow him some time to pay any sum he is ordered to pay.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Campagnolo v Bennett [2020] QCAT 13
PARTIES:	DONNA CAMPAGNOLO (applicant)
v
JESSE SEABROOK BENNETT (respondent)
APPLICATION NO/S:	BDL144-18
MATTER TYPE:	Building matters
DELIVERED ON:	24 January 2020
HEARING DATE:	16 October 2019
HEARD AT:	Cairns
DECISION OF:	Member King-Scott
ORDERS:	The Tribunal directs by way of interim orders that: 1. I order Jesse Seabrook Bennett pay Donna Campagnolo the sum of $220,000.00 in respect of her claim; 2. I dismiss Jesse Seabrook Bennett’s counter-application; 3. The order to pay is stayed until further argument in relation to costs and the form of final orders; 4. I invite the parties to make submissions in relation to costs; 5. I direct the parties file written submissions, if any, as to costs as follows: (a) Donna Campagnolo by 4.00 pm 7 February 2020; (b) Jesse Seabrook Bennett by 4.00 pm 14 February 2020.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – Domestic Building Dispute – builder’s failure to progress work – builder abandons works – whether builder or owner entitled to terminate – whether subsequent incomplete and defective work found subsequently to repudiation a further basis for repudiation – where defective and incomplete work – reasonable costs of rectification – whether owner entitled to solatium Queensland Building and Construction Commission Act 1999 (Qld) Clarke ν President, Councillors and Ratepayers of the Shire of Gisborne [1984] VR 971 Centreplex Pty Ltd v Noahs Rosehill Waters Pty Ltd [2019] WASC 252 Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2012] 2 Qd R 114 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Mersey Steel and Iron Co. v Naylor, Benzon & Co (1884) 9 AC 434 Ross T Smyth & Co Ltd v T D Bailey, Son & Co (1940) 3 All E R 60 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 Shevill v Builders Licensing Board (1982) 149 CLR 620
APPEARANCES & REPRESENTATION:
Applicant:	D McKinstry, solicitor of WGC Lawyers
Respondent:	Self-represented