Cerda v Jacob

Case [2020] QCATA 57

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Cerda v Jacob [2020] QCATA 57
PARTIES: JUAN PABLO LARRAIN CERDA

(applicant/appellant)

v
BINNY JACOB

(respondent)

APPLICATION NO/S:

APL217-18

ORIGINATING APPLICATION NO/S:

BDL284-16

MATTER TYPE:

Appeals

DELIVERED ON:

22 April 2020

HEARING DATE:

25 June 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Olding
ORDERS:

1.   Leave to appeal is granted.

2.   The appeal is allowed.

3.   The decision of the Tribunal dated 5 August 2018 is set aside to the extent of the amount of damages payable by Juan Pablo Larrain Cerda to Binny Jacob.

4.   Juan Pablo Larrain Cerda must pay to Binny Jacob $6,750.00 within 28 days of the date of this decision.

5.   Juan Pablo Larrain Cerda must pay Binny Jacob’s costs of proceeding BDL284-16 fixed in the amount of $750.70 within 28 days of the date of this decision.

6.   The counter application is dismissed.

CATCHWORDS:

APPEALS AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where error asserted in the decision below to order costs of remediation and completion of building works – where contract was not dated – where contract was void and of no effect - where error of law found in proceeding on the basis that the contract was valid and enforceable – where learned member allowed costs of rectification not in the original scope of works – where error of mixed law and fact found – where appeal allowed

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where contract did not comply with the requirements of the Queensland Building and Construction Commission Act 1991 (Qld) – consequences of non-compliance – where contract of no effect

TORTS – NEGLIGENCE – DUTY OF CARE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – DAMAGES AND CAUSATION – GENERALLY – where breach of duty by builder in undertaking building work – assessment of damages

Civil Liability Act 2003 (Qld), s 4(1), s 11, sch 2
Domestic Building Contracts Act 2000 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 3(1)(a), s 4, s 5(1)(a), s 13(2), s 13(5), s 14(1), s 14(2), s 14(10), s 22, s 44, sch 2

Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld)

Queensland Building and Construction Commission Regulation 2018 (Qld), reg 45
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 147(1), s 147(2), s 147(3)

Bellgrove v Eldridge (1954) 90 CLR 613
Cachia v Grech [2009] NSWCA 232
Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Harrison and Anor v Meehan [2016] QCATA 197
Jacob v Cerda [2018] QCAT 255
Kirkby & Anor v Coote & Ors [2006] QCA 61
Kyogle Shire Council v Francis (1988) 13 NSWLR 396
Lyons v Jandon Constructions (A Firm) (1998) WASC 224
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty…

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Details
AGLC
Cerda v Jacob [2020] QCATA 57
Case
[2020] QCATA 57
Decision Date

CaseChat Overview and Summary

Cerda v Jacob involved a dispute between a builder, Juan Pablo Larrain Cerda, and a homeowner, Binny Jacob. The case arose from a building contract that Cerda entered into with Jacob for the construction of retaining walls and external block stairs at Jacob's property. The primary dispute centred on the quality of the construction work, with Jacob alleging that Cerda had breached the contract by constructing the walls and stairs in a substandard manner. Jacob sought damages for the costs of remediation and completion of the works. The Queensland Civil and Administrative Tribunal (QCAT) originally found in Jacob's favour, ordering Cerda to pay damages for the remediation and completion of the building works. Cerda appealed this decision to the Queensland Court of Appeal.

The appeal raised several significant legal issues, including whether the contract between Cerda and Jacob was valid and enforceable, and if so, whether Cerda had breached it. Additionally, the court needed to determine the appropriate measure of damages for the breach, considering whether the costs for the remediation and completion of the works were reasonable and necessary. The appeal also addressed whether there were any errors in the tribunal's assessment of the evidence and whether the tribunal had correctly applied the law in reaching its decision.

The Court of Appeal found that the contract between Cerda and Jacob was void because it did not comply with the requirements of the Queensland Building and Construction Commission Act 1991. Consequently, the contract was of no effect, and the parties' rights had to be determined under the Civil Liability Act 2003 and the relevant principles of breach of duty and restitution. The court identified errors in the tribunal's reasoning, particularly in its acceptance of certain evidence and its calculation of damages. The appeal court held that the tribunal had erred in law and in fact by proceeding on the basis that the contract was valid and enforceable.

The Court of Appeal allowed the appeal, set aside the tribunal's decision regarding the amount of damages payable, and ordered Cerda to pay Jacob $6,750.00 within 28 days of the decision. Additionally, Cerda was ordered to pay Jacob's costs of proceeding in the amount of $750.70 within the same timeframe. The counter application was dismissed.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision of the Tribunal dated 5 August 2018 is set aside to the extent of the amount of damages payable by Juan Pablo Larrain Cerda to Binny Jacob.

4. Juan Pablo Larrain Cerda must pay to Binny Jacob $6,750.00 within 28 days of the date of this decision.

5. Juan Pablo Larrain Cerda must pay Binny Jacob’s costs of proceeding BDL284-16 fixed in the amount of $750.70 within 28 days of the date of this decision.

6. The counter application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration.[10][10]Ericson v Queensland Building Services Authority [2013] QCA 391.The decision The learned member found:(a)Mr Cerda constructed a series of block retaining walls at the front and rear of Ms Jacob’s home, as well as a set of external block stairs from the footpath up to the front entrance of the house.[11] [11]Jacob v Cerda [2018] QCAT 255, [2].(b)The agreement to perform the building works was signed on 12 July 2016.[12][12]Ibid, [7].(c)Mr Cerda constructed the walls and stairs in a less than workmanlike manner.[13](d)Mr Cerda made a number of fundamental setting-out errors in constructing the retaining walls and stairs at the front of the property as a result of failing to work outwards from the centre of the property.[14](e)Mr Cerda failed to clarify with Ms Jacob whether the stairs were to align with the front door of the residence.[15](f)As a result of being bowed and out of alignment the walls were required to be demolished.[16](g)Mr Cerda did not seek to sufficiently confirm Ms Jacob’s requirements in having the tops of the walls at the front of the property built to the same level, despite the fact of the block sloping across its frontage.[17](h)Mr Cerda under quoted for the building works.[18](i)In breach of the contract between the parties, Mr Cerda did not deliver the agreed scope of works.[19](j)It would be cheaper to complete the job with pavers, rather than by means of either exposed aggregate or coloured concrete, as originally contemplated prior to Mr Cerda ceasing to perform the contract.[20](k)The remediation and completion works, and the costs associated therewith, were reasonable and necessary.[21]What do the parties say?[13]Ibid, [32].[14]Ibid.[15]Ibid.[16]Ibid.[17]Ibid.[18]Ibid, [33].[19]Ibid.[20]Ibid, [34].[21]Ibid.Mr Cerda Mr Cerda’s grounds of appeal raise questions of fact and are essentially limited to complaints about the factual findings made by the learned member including:(a)Finding that the stairs and walls were not constructed according to Ms Jacob’s instructions and that Ms Jacob was ‘happy with the aesthetics’.(b)Finding that the walls and stairs had been demolished and rebuilt when there was no evidence of this.(c)Finding that Mr Cerda had not confirmed Ms Jacob’s instructions before undertaking the building work when he had in fact done so.(d)Failing to address Ms Jacob’s refusal to permit Mr Cerda access to the site.(e)Finding that Mr Cerda had under quoted for the job.(f)In assessing damages, the learned member included the costs of work that Mr Cerda was not contractually obliged to undertake.(g)The learned member should have assessed the costs of rectification in the amount of $6,750.00.(h)The learned member failed to find that Ms Jacob had not mitigated her loss. At the appeal hearing, Mr Cerda was taken through the learned member’s reasons and asked to identify any further asserted errors. The additional matters raised by Mr Cerda were:(a)Accepting the evidence of Ms Jacob’s engineer, Mr Pugh, when his evidence at the hearing differed from the opinion expressed in his written report.(b)Failing to place weight upon the evidence from the manufacturer of the blocks used in the construction of the wall that no footing was required.Ms Jacob

Ratio Decidendi

Legal Principle Established

The learned member proceeded on the basis that the contract was valid and enforceable and determined the rights of the parties accordingly. In so doing the member erred in law and in fact. The parties’ rights fell for determination not under the contract, but in accordance with the Civil Liability Act 2003 (Qld) and the relevant principles relating to breach of duty and restitution. We will address the consequences of that error later in these reasons. Consideration of the grounds of appeal In the course of the appeal hearing, Mr Cerda was taken through the reasons of the learned member in an attempt to clarify his grounds of appeal. In addition to the identified grounds of appeal, Mr Cerda’s submissions may be summarised as follows:(a)The learned member erred in accepting the evidence of Ms Jacob’s engineer, Mr Pugh;[36](b)The learned member erred in accepting the evidence of the builder who undertook the rectification work, Mr Etherton, as to the extent of the demolition and reinstatement work;[37](c)Mr Cerda was not afforded procedural fairness. This ground comprises two aspects: firstly, that Mr Cerda was not given the opportunity to inspect the works after Mr Etherton had completed the works and secondly, he was denied an adjournment that would have enabled him to undertake an inspection. [36]Jacob v Cerda [2018] QCAT 255, [20]–[25].[37]Ibid, [28]–[29]. The grounds of appeal identified by Mr Cerda at the appeal hearing depart to some extent from those grounds set out in the application for leave to appeal or appeal.[38] Given the difficulty faced by self represented parties in articulating coherent appeal grounds in matters such as this, we will approach the determination of the appeal by reference to the grounds set out in Mr Cerda’s application for leave to appeal or appeal and the submissions made at the appeal hearing. [38]Application for leave to appeal or appeal filed 29 August 2018.The evidence of Mr Pugh Notwithstanding what we have said regarding the opportunity provided to Mr Cerda to clarify his grounds of appeal at the appeal hearing, the grounds remain somewhat opaque. Mr Cerda says that the evidence of the engineer, Mr Pugh, was contradictory and therefore unreliable and the learned member should not have placed any weight on it. Mr Pugh attended the site and inspected the works. In his report Mr Pugh expressed a number of opinions about the building works undertaken by Mr Cerda. Mr Cerda’s complaints are confined to what he says were inconsistencies in Mr Pugh’s evidence about footings for the retaining walls at the rear of Ms Jacob’s property. These inconsistencies were such, says Mr Cerda, that Mr Pugh’s evidence should not have been accepted. Central to Mr Cerda’s submission is his contention that Mr Pugh, in his written report, stated that there were no footings present beneath the retaining walls and that his evidence at the hearing was to the contrary. The difficulty we face is in apprehending whether Mr Cerda’s arguments relate to all or only some of the retaining walls. It is therefore necessary to say a few things about the layout of Ms Jacob’s property to contextualise Mr Cerda’s submissions.