Cochrane v Korn - [2022] QCAT 378

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cochrane v Korn [2022] QCAT 378

PARTIES:

sean cochrane

(applicant)

V

richard korn

(respondent)

APPLICATION NO/S:

BDL091-21

MATTER TYPE:

Building matters

DELIVERED ON:

9 November 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

Richard Korn must pay to Sean Cochrane the amount of $33,909 within 28 days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where claim for defective work – where lack of evidence of legally enforceable contract – whether negligence established – quantum of damages

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 77, Schedule 1B s 3, s 4, s 5, s 13

Barbi v Brewer [2013] QCAT 348

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

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

Sean Cochrane is a homeowner, and Richard Korn operates a business named AllCrete & Excavations.
Mr Cochrane is seeking damages against Mr Korn for the rectification of defective building works, plus the costs of the proceeding.
Mr Korn has not filed any evidence, and the matter has been set down for determination on the papers.

Work to be undertaken by Mr Korn

Mr Korn provided Mr Cochrane with two quotes.
The first quote was dated 3 July 2019. The quote relates to the extension of a concrete path, and the removal a section of existing concrete. The amount quoted was $5,887.53.
The second quote was dated 12 July 2019. The quote relates to the application of Covacrete to the concreted area. The amount quoted was $14,899.50.

Complaints by Mr Cochrane

Mr Cochrane was dissatisfied with the work undertaken by Mr Korn. Mr Cochrane made a complaint to the Queensland Building and Construction Commission, which appears to have resulted in some aspects of his complaint being remedied. The remaining matters in relation to which Mr Cochrane continues to be dissatisfied are the subject of the present proceeding.
Mr Cochrane obtained an expert building report from Martin Helisma of Building Investigations and Consultants Pty Ltd. The reported is dated 15 January 2021.
Mr Helisma has 45 years of experience in the construction industry, including a period of 16 years working for the then Queensland Building Services Authority. He holds a Master of Construction Management and an Associate Diploma of Applied Science (Building). I am satisfied that he possesses relevant expertise.
I will deal in turn with each of Mr Cochrane’s outstanding complaints, and Mr Helisma’s opinions in relation to them.

Defective construction of the pavement expansion/construction joints

As set out in Mr Helisma’s report, Mr Cochrane had sought to have Mr Korn rectify a previously defective construction joint where a new concrete driveway had been installed adjacent to an existing driveway.
Mr Korn removed a strip of concrete on each side in an…

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 Cochrane v Korn

Details

AGLC: Cochrane v Korn [2022] QCAT 378
Case: [2022] QCAT 378
Decision Date

CaseChat Overview and Summary

Sean Cochrane, a homeowner, brought an action against Richard Korn, the operator of AllCrete & Excavations, for defective building works. The dispute arose from the execution of two quotes provided by Mr. Korn, one for the extension of a concrete path and the removal of a section of existing concrete, and another for the application of Covacrete to the concreted area. Mr. Cochrane was dissatisfied with the work undertaken by Mr. Korn and sought damages for the rectification of the defects, as well as the costs of the proceeding. The matter was determined on the papers as Mr. Korn did not file any evidence.
The primary legal issues before the Tribunal were whether a legally enforceable contract existed between the parties, and if not, whether a negligence claim could be established. The Tribunal found that no enforceable contract was present as there was no written, dated, and signed agreement between the parties. Despite the absence of a contractual claim, the Tribunal considered the contract to the extent it was relevant to the negligence claim. The Tribunal also had to determine if Mr. Korn breached his duty of care by failing to take reasonable care in performing the concreting work, and if so, to what extent damages should be awarded.

The Tribunal concluded that Mr. Korn owed Mr. Cochrane a duty of care in performing the concreting work and that he breached this duty by failing to take reasonable care, as evidenced by the uncontested expert report from Martin Helisma of Building Investigations and Consultants Pty Ltd. The Tribunal accepted Mr. Helisma's assessment that the defective construction of the pavement expansion/construction joints, poor surface drainage, and defective application of the new textured pavement paint system were all due to Mr. Korn's lack of reasonable care. The Tribunal assessed the damages based on the more recent quote from Dunrite Concreting, which totalled $30,400, and added the costs of the proceeding, amounting to $3,509, to arrive at a total of $33,909.

In its decision, the Tribunal ordered that Mr. Korn pay Mr. Cochrane the amount of $33,909 within 28 days of the date of the decision. This decision was based on the findings that no enforceable contract existed between the parties, but that Mr. Korn was liable for negligence in performing the concreting work, and that the damages and costs claimed by Mr. Cochrane were reasonable and not too remote.

Orders