Cooper v McGaveston

Case [2019] QCAT 244

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Natalie Cooper v Daniel Murray McGaveston [2019] QCAT 244

PARTIES:

NATALIE COOPER
(applicant)
v

DANIEL MURRAY MCGAVESTON

(respondent)

APPLICATION NO:

BDL256-18

MATTER TYPE:

Building matters

DELIVERED ON:

28 August 2019

HEARING DATE:

16 May 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

1.   The Respondent pay to the Applicant damages in the sum of $14,158.00 within 14 days of the date of this decision.

2.   The Respondent pay to the Applicant costs in the sum of $3,153.18 within 14 days of the date of this decision.

3.   The proceeding is listed for a directions hearing on a date to be fixed.

4. The proceeding is listed for further hearing on a date to be fixed, so that the parties can be heard in relation to whether, by virtue of ss 42(1) and 42(3) of the Queensland Building and Construction Commission Act, 1991 (Qld), the Tribunal should make an order that the Respondent refund to the applicant the sum of $14,705.00 she paid for the Works.

5.   Unless the Tribunal otherwise orders, no further evidence in chief will be allowed at the further hearing.

6.   Unless the Tribunal otherwise orders, all witnesses relied upon must be available in person for cross-examination.

7.   Further costs are reserved.

CATCHWORDS:

BUILDING DISPUTE - BREACH OF CONTRACT - where informal and unsigned contract – where non-compliance with s 13(2) of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld)

BUILDING DISPUTE – NEGLIGENCE – whether builder owed a duty of care to homeowner – whether builder breached duty of care – whether homeowner suffered material damage caused by builder’s breach of duty – whether proximate connection between action of builder and damage

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR TORT – where damages to be assessed – where builder had duty to take reasonable care in performing work – where purpose of damages to restore homeowner to position they would have been in had wrongful acts not occurred – whether evidence of damages claimed – where person preparing quote not made available for cross-examination – whether natural justice afforded

BUILDING DISPUTE – where work performed by unlicensed builder - effect of non-compliance with s 42(1) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether homeowner entitled to be reimbursed money paid for building work – whether natural justice afforded to parties

Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)

AL Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319
Bryan v Maloney (1995) 182 CLR 609
Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (2009) 254 ALR 661
Drossos v Marvel Homes Pty Ltd [2014] VSC 384
Faulks v New World Constructions Pty Ltd (No 2) [2014] QCAT 329
Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
Haines v Bendall (1991)172 CLR 60
Marshall v Marshall [1999] 1 Qd R 173
Nicinski v Chemay…

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Details
AGLC
Cooper v McGaveston [2019] QCAT 244
Case
[2019] QCAT 244
Decision Date

CaseChat Overview and Summary

In the case of Cooper v McGaveston, the Applicant, the homeowner, brought proceedings against the Respondent, a tiling contractor, alleging that the work carried out by the Respondent was defective. The Applicant sought relief for loss and damage caused by the Respondent's actions. The dispute was heard by the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues addressed by the court involved whether the Respondent breached the terms of an informal and unsigned contract, whether the Respondent owed a duty of care to the Applicant, and whether the Applicant was entitled to be reimbursed for the cost of the building work due to the Respondent's unlicensed status.

The court examined the evidence provided by both parties and witnesses, including the Applicant, the Respondent, a tiler who assisted with the works, a former state retail manager of a tile company, a building inspector, and a senior structural building inspector. The court found that the factual background of the dispute was largely undisputed. The Respondent had provided a quote to the Applicant for tiling work, which the Applicant accepted. The Respondent carried out the work between April and May 2017, but was not licensed as required by the Queensland Building and Construction Commission Act 1991 (Qld) at the time the work was performed.

In its decision, the court found that the Respondent breached the informal and unsigned contract by not complying with s 13(2) of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld). The court also found that the Respondent owed a duty of care to the Applicant, which was breached, resulting in material damage to the Applicant's property. The court awarded damages to the Applicant in the sum of $14,158.00, and ordered the Respondent to pay costs in the sum of $3,153.18. The court also listed the proceeding for a directions hearing and a further hearing to determine whether the Applicant was entitled to a refund of the cost of the building work due to the Respondent's unlicensed status.

The court's decision provides guidance on the importance of compliance with building regulations and the consequences of breaching contractual obligations in the building industry. The decision also highlights the need for builders to take reasonable care in performing work and to owe a duty of care to homeowners to avoid causing material damage. Finally, the decision emphasises the importance of providing evidence of damages claimed and ensuring natural justice is afforded to all parties involved in building disputes.

Orders

Orders of the court

1. The Respondent pay to the Applicant damages in the sum of $14,158.00 within 14 days of the date of this decision.

2. The Respondent pay to the Applicant costs in the sum of $3,153.18 within 14 days of the date of this decision.

3. The proceeding is listed for a directions hearing on a date to be fixed.

4. The proceeding is listed for further hearing on a date to be fixed, so that the parties can be heard in relation to whether, by virtue of ss 42(1) and 42(3) of the Queensland Building and Construction Commission Act, 1991 (Qld), the Tribunal should make an order that the Respondent refund to the applicant the sum of $14,705.00 she paid for the Works.

5. Unless the Tribunal otherwise orders, no further evidence in chief will be allowed at the further hearing.

6. Unless the Tribunal otherwise orders, all witnesses relied upon must be available in person for cross-examination.

7. Further costs are reserved.

Background

Background to the litigation

The Applicant alleges that the Respondent’s work was defective and claims relief for loss and damage. Factual background The Tribunal received evidence of:(a)The Applicant;(b)The Respondent;(c)Mr Maurizio Cavarretta, Tiler;(d)Mr Scott Palmer, formerly State Retail Manager of Beaumont Tiles; (e)Mr Bejairaj Luckan, Building Inspector, Queensland Building & Construction Commission; and(f)Mr Finlay Hayhurst, Senior Structural Building Inspector, JHA Australia Group Pty Ltd. The factual background is largely not in dispute. Based on the pleadings and evidence, the Tribunal is satisfied that the factual background to the dispute is as follows. The Applicant is the owner of the Home, which is a detached residential dwelling located in Queensland.[1][1]Statement of Claim, paragraph 1; Response, Annexure “A”, paragraph 1. At all relevant times, the Respondent carried on business as a tiling contractor.[2][2]Statement of Claim, paragraph 2(a); Response, Annexure “A”, paragraph 1. On 14 February 2017, the Respondent met with the Applicant at the Home to discuss the Works. On 22 February 2017, the Respondent gave the Applicant a written quote dated 14 February 2017 (‘Written Quote’) to carry out the Works at the Home for a price of $14,705.00.[3] The Written Quote stated:[3]Statement of Claim, paragraph 4(a), 5; Response, Annexure “A”, paragraph 1, 4(c); Applicant’s Affidavit dated 15 January 2019, paragraph 4(i). The Respondent provided other quotes but this quote was the one that the Applicant accepted in relation to the Works. On 24 February 2017, Applicant accepted the Written Quote by text message. To enable the Works to be undertaken, skirting boards and furniture was removed from the Home. The Applicant and her family, apart from the Applicant’s father, moved out of the Home for the duration of the Works. Between about 18 April and 5 May 2017, the Respondent undertook the Works, which relevantly included:(a)Laying new limestone tiles (‘the Limestone Tiles’) to virtually the entire of the floors in the Home. The Applicant had selected and purchased the Limestone Tiles from Beaumont Tiles. The Limestone Tiles were a natural stone product which was noted to have natural imperfections such as irregular markings, lines and veins. The Limestone Tiles were laid over the top of the pre-existing flooring (‘Substrate’) which was cork tile flooring in the entry, lounge, study and bedrooms and natural slate tile flooring in the kitchen, dining laundry and back hall; and(b)Tiling and installation of shower drains (‘the Shower Drains’) on the floor of an ensuite and main bathroom. Mr Maurizio Cavarretta assisted the Respondent with the Works. The Respondent was not licenced pursuant to the QBCC Act at the time when the Respondent provided the Written Quote and undertook the Works. The Respondent did not become licenced pursuant to the QBCC Act until 27 April 2018, when he commenced to hold contractor’s licence number 15088098.[4][4]Statement of Claim, paragraphs 2(b), 2(c); Response, Annexure “A”, paragraph 1.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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