Craig MacGregor Davies (t/a Trojan Tilers) v Austruct Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Craig MacGregor Davies (t/a Trojan Tilers) v Austruct Pty Ltd [2019] QCAT 266

PARTIES:

CRAIG MACGREGOR DAVIES (T/A TROJAN TILERS

(applicant)

v

AUSRUCT PTY LTD

(respondent)

APPLICATION NO

BDL047-18

MATTER TYPE:

Building Dispute

DELIVERED ON:

6 September 2019

HEARING DATE:

22 August 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDER:

The Respondent Austruct Pty Ltd must pay to the Applicant Trojan Tilers the sum of $17,388.25 within 21 days.

CATCHWORDS:

CONTRACT – BUILDING AND CONSTRUCTION CONTRACT – MINOR CIVIL DISPUTE – minor commercial building dispute – subcontract – where subcontractor suing for moneys due – where opponent counterclaiming for defective work – where opponent seeks to tender evidence of more than one expert – whether one expert rule applies – whether defects major or minor – preferred expert advises minor – where offer of subcontractor to remedy defects gratis not accepted – whether compensation recoverable for defects

Queensland Building and Construction Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Act2009 (Qld) Schedule 3
QCAT Practice Direction No 9 of 2009
Uniform Civil Practice Rules 1999 (Qld) rules 367(3)(e), 423, 429H
Ardlethan Options Ltd v Easdown (1915) 20 CLR 285

CH2M Hill Australia Pty Ltd v New South Wales [2012] NSWSC 808

D v S [2009] QSC 446

Iezzi Constructions Pty Ltd (in liq) v C & E Pty Ltd [2005] QSC 158
Jamif Pty Ltd v Grant Torrens International Marine Pty Ltd [2006] QSC 229
Simpson v Brett and Suncorp General Insurance Ltd (unreported, Qld SC Rockhampton, McMeekin J, 8 December 2008

Stolfa v Owners of Strata Plan 4366 (No 2) [2008] NSWSC 531

APPEARANCES:

Ms J MacGregor-Davis for the Applicant

Mr A Ward for the Respondent

REASONS FOR DECISION

1. In 2016-2017 a commercial-residential complex was being built beside the Story Bridge at Kangaroo Point Brisbane. On 21 December 2016 the Respondent Austruct Pty Ltd (`Austruct’) engaged the Applicant Trojan Tilers (`Trojan’) to install waterproofing and to lay tiles on its behalf.

2. Trojan now claims that it is still owed almost half its contract price[1], while Austruct alleges that Trojan’s work is so seriously defective that it owes Austruct $25,000.

   [1]$32,734.55/

3. On 13 June 2017, having fulfilled a precondition,[2] Trojan commenced these proceedings, claiming $17,734.55 for the balance of its agreed price. The calculation of that amount is not in dispute.

   [2]Queensland Building and Construction Act 1991 (Qld) s 77(2).

4. Two months later Austruct responded with a counterclaim for $25,000[3], alleging defective work, and claiming cleaning costs, payment for goods supplied and variations allegedly not approved. If upheld, Austruct’s action would, of course, conveniently extinguish its obligation to pay Trojan about 45% of the contract price and leave Austruct $7,000-odd in credit. Accordingly, relying upon a set-off, Austruct contends that it is entitled to reject Trojan’s claim.

   [3]$25,000 is the monetary limit of the Tribunal’s jurisdiction: QCAT Act Schedule 3: `prescribed amount’defined.

   Trojan’s quest for payment

5. The contract provided for periodic invoices and payments as sections…