Clelland v Ommensen - [2014] QCAT 366

CITATION:

Clelland v Ommensen [2014] QCAT 366

PARTIES:	Alaisdair Clelland (Applicant)
v
Stuart Ommensen (Respondent)

APPLICATION NUMBER:

BDL301-13

MATTER TYPE:

Building matters

HEARING DATE:

25 July 2014

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

31 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Clelland is to pay Mr Ommensen $32,302.11 within 14 days.

2. Mr Clelland is to provide to Mr Ommensen any outstanding warranty documentation within 14 days.

CATCHWORDS:

BUILDING MATTER – Dispute between builder and home owner about the final payment of a contract to renovate a house – WHERE applicant did not attend hearing at short notice – WHERE final invoice not paid by homeowner because of allegations of defects – WHERE 53 variations but only 5 in dispute – WHERE experts have different views of workmanship of builder – WHERE one expert must be preferred – WHETHER there are major defects with the renovation of the home – WHETHER liquidated damages and loss of rent should be allowed

Queensland Building and Construction Commission Act 1991 (Qld)
Domestic Building Contracts Act 2000 (Qld) ss 82, 84

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

No appearance

RESPONDENT:

Mr Ommensen, in person

REASONS FOR DECISION

Alaisdair Clelland is a builder who entered into a contract with Stuart Ommensen to renovate Mr Ommensen’s Queenslander style home at Paddington by building in under the house and making other alterations.
The original contract amount was $338,977.00. Without counting the variations in dispute, the final contract price as agreed by the parties with all other consensual variations allowed is $335,605.05[1].
[1]Mr Ommensen’s amended spreadsheet filed 25 July 2014.
Added to this are further consensual plumbing, electrical and provisional sum variations which add $1,037.00, $6,221.36 and $3,304.00 respectively. This totals $346,167.41.
In December 2013 Mr Clelland filed an application for a domestic building dispute seeking monies owing under, and as a result of the contract, from Mr Ommensen of $17,024.92.
While Mr Clelland seeks payment under the contract, Mr Ommensen in his response and counter-claim filed on 6 February 2014 seeks the following amounts:
Reimbursement of funds overpaid  $    5,903
Structural defects costed and assessed at               $ 41,355
Water damage assessed at   $ 11,539
Loss of rental   $ 50,062
Total  $108,859
The matter was set down before the Tribunal as a hearing at 9.30am on 25 July 2014. At 9:00am on the morning of the hearing an email was received by the registry from Mr Clelland advising the Tribunal that he did not intend to appear at the hearing. The registry, on instructions from the Tribunal, both emailed and spoke to Mr Clelland, encouraging him to attend the hearing and pointing out that the Tribunal would be limited to considering his application and any submissions received already if he did not attend.
Mr Clelland accepted this in a telephone call with the case officer of the registry saying that he did not mean any disrespect to the Tribunal, but that he had had personal issues and that he understood the decision…

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 Clelland v Ommensen

Details

AGLC: Clelland v Ommensen [2014] QCAT 366
Case: [2014] QCAT 366
Decision Date

CaseChat Overview and Summary

In the matter of Clelland v Ommensen, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to resolve a dispute between Alaisdair Clelland, a builder, and Stuart Ommensen, a homeowner. The dispute centred around the final payment owed under a contract to renovate Mr Ommensen’s Queenslander style home, as well as various claims of defects and damages. Mr Clelland did not attend the hearing, which was set for 25 July 2014, despite reminders from the Tribunal. Stuart Ommensen appeared on his own behalf, and the Tribunal proceeded to make its decision based on the material already on file. The legal issues before the Tribunal included whether certain variations to the original contract should be allowed, the liability for various defects and damages, and the entitlement to liquidated damages and loss of rent.

The Tribunal examined the evidence presented by both parties, including expert reports and submissions, to determine the outcomes of the various disputes. The Tribunal allowed most of the variations agreed upon by both parties, finding that exceptional circumstances applied and that it would not be unfair to Mr Ommensen to allow Mr Clelland to recover amounts for these variations. The Tribunal also found that certain rectification costs were reasonable and should be allowed, while other costs were to be left where they fell due to insufficient evidence. Regarding defects, the Tribunal allowed certain rectification costs for structural defects but disallowed costs for water damage and insurance as they were not adequately substantiated by Mr Ommensen. The Tribunal further found that the liquidated damages claimed by Mr Ommensen were excessive and allowed a lesser amount for the time delays caused by necessary rectifications. Finally, the Tribunal disallowed Mr Ommensen’s claim for loss of rent as he had not mitigated his losses and had chosen not to rent the affected bedroom.

The final orders of the Tribunal were that Mr Clelland was to pay Mr Ommensen $32,302.11 within 14 days and provide any outstanding warranty documentation within the same timeframe. This decision balanced the claims and counterclaims between the parties, taking into account the evidence presented and the applicable statutory provisions.

Orders