Dutton v Smith

[2012] QCAT 572

CITATION: Dutton and Anor v Smith [2012] QCAT 572

PARTIES:	Marcus Daniel Dutton Samantha Kaye Martin (Applicants/Appellants)
v
Huia Karaitiana Smith (Respondent)

APPLICATION NUMBER: BDL278-11

MATTER TYPE: Building matters

HEARING DATE: 16 November 2012

HEARD AT: Mackay

DECISION OF: Michelle Howard, Member

DELIVERED ON: 16 November, 2012

DELIVERED AT: Mackay

ORDERS MADE: 1. The application is dismissed.

CATCHWORDS:

BUILDING CONTRACT – where homeowners failed to attend hearing – where notice of hearing given – where evidence that work and rectification attended to

Queensland Civil and Administrative Tribunal Act 2009, s 93

APPEARANCES and REPRESENTATION (if any):

APPLICANT: There was no appearance for the applicants

RESPONDENT: Mr Huia Karaitiana Smith appeared on his own behalf

REASONS FOR DECISION

1. Mr Dutton and Ms Martin (the homeowners) filed an application seeking damages, interest and costs arising out of a building contract with Mr Smith.  Mr Smith filed a response seeking the dismissal of the application.  At a compulsory conference in February 2012, the issues between the parties were narrowed.

2. The claim relates in essence to claimed damage to tiles around a swimming pool from cleaning agents used when Mr Smith installed exposed aggregate concrete around the pool.  Initially the claim was for some $46,630.  However, it appears from documents provided to the Tribunal subsequently by Mr Dutton and Ms Martin that the claim was reduced to $4,730, being the amount specified in an email quote to do certain work around the pool area.  The homeowners have not filed witness statements setting out their evidence despite numerous directions from the Tribunal to do so,[1] although they filed copies of some documents, including a Queensland Building Services Authority (BSA) report and correspondence.

   [1]        Directions dated 23 May 2012; 13 June 2012; and 20 July 2012.

3. Neither Mr Dutton nor Ms Martin attended the hearing.  A notice of hearing was sent on 3 September 2012 to their nominated address as set out on their application.  Also, directions issued by the Tribunal on 13 June 2012 and 20 July 2012 both included directions that the application was listed for hearing in Mackay at 9.30am on 16 November, 2012.  On this basis, I am satisfied that Mr Dutton and Ms Martin had notice of the hearing.  I decided to hear and decide the proceeding in their absence.[2] 

   [2]As provided for in the Queensland Civil and Administrative Tribunal Act 2009, section 93.

4. At the hearing, Mr Smith, in accordance with his filed response document, sought orders dismissing the application.  He told the Tribunal that he had completed the work.  He has also done some further work after Mr Dutton and Ms Martin had involved the BSA.  Mr Smith said that the BSA had ‘ticked’ off on it as far as possible.  His evidence was that the work was done to a satisfactory manner.  He suggested that a couple of issues remained for the homeowners but that they were not his fault.

5. It is not known why the homeowners failed to attend the hearing to present their case.  As they did not do so, they may now be satisfied that the issues they raised have been dealt with.  In any event, on the basis of the evidence given by Mr Smith, and in the absence of any evidence from the homeowners to the contrary, I accept that the work has been satisfactorily completed.  Therefore, no damages are payable arising out of the agreement between the parties.

6. Accordingly, the application is dismissed.