Edwards v Cummins Constructions Pty Ltd - [2023] QCAT 3

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Edwards v Cummins Constructions Pty Ltd [2023] QCAT 3

PARTIES:

MICHAEL EDWARDS

(applicant)

v

CUMMINS CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

BDL285-20

MATTER TYPE:

Building matters

DELIVERED ON:

10 January 2023

HEARING DATE:

7 December 2022

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Tribunal:

1.     Dismisses the application;

2.     Directs the parties to make and exchange submissions, if any, in respect to costs as follows:

(a)     The Respondent by 4:00 pm 24 February 2023;

(b)     The Applicant by 4:00 pm 10 March 2023.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – dispute between home owner and builder – work not defective or incomplete – work not in accordance with contract, plans and specifications

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – whether construction of pontoon is reviewable domestic building work

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - where failure to provide evidence – failure to comply with directions to file statements of evidence – adversarial nature of proceedings

Queensland Building and Construction Commission Act 2009 (Qld)

Queensland Building and Construction Commission Regulations 2018 (Qld)

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

B English solicitor CIF Lawyers

REASONS FOR DECISION

The parties entered into a Master Builders Queensland Residential Building Contract - Level 2 for the construction of a house at Jacobs Well. Work commenced on 24 April 2019 and was completed on 10 September 2019.
Cummins Constructions Pty Ltd trading as G J Gardner Homes – Gold Coast North was the builder who, hereafter, I will refer to as the ‘builder’.
Practical completion occurred on 10 September 2019 with final payment made the day before on 9 September 2019. The contract price, $398,624.00 and variation of $1,526.43 totalling $400,150.43, has been paid in full.
The builder says that Mr Edwards inspected the works on practical completion and on some issues agreed to disagree but completed the contract and took possession. No defects notice pursuant to clause 17.5 of the Contract listing any minor defects was produced in evidence. Mr Edwards says that the final acceptance and handover contains a list of exceptions in which all the complaints are documented as exceptions, but the document is not in evidence.[1]
[1]Applicant’s response to the Respondent’s statement of evidence in reply dated 1 August 2021 p.23
The Applicant, Mr Edwards, lodged a complaint of defective building work with the Queensland Building and Construction Commission (QBCC) on 12 February 2020. The QBCC found no defective work and determined that the issues were contractual. On 26 April 2022, Mr Edwards commenced proceedings in the Tribunal claiming compensation for defective work which were itemised in the application as follows:
(a)Water supply to pontoon defective work;
(b)Exposed sewer vent;
(c)Exposed water supply service;
(d)Water tap to be relocated as shown on the drawings;
(e)Hebel panels to be installed as shown in drawings.
Each complaint was investigated by Queensland Building and Construction Commission (“the Commission”) and found not to…

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 Edwards v Cummins Constructions Pty Ltd

Details

AGLC: Edwards v Cummins Constructions Pty Ltd [2023] QCAT 3
Case: [2023] QCAT 3
Decision Date

CaseChat Overview and Summary

In the Queensland Civil and Administrative Tribunal, Michael Edwards brought an application against Cummins Constructions Pty Ltd for alleged defective building work. The contract was for the construction of a house at Jacobs Well. The applicant, Mr Edwards, claimed compensation for various issues, including defects in the water supply to a pontoon, exposed sewer vent, exposed water supply service, relocation of a water tap, and the installation of Hebel panels as shown in the drawings. The respondent, Cummins Constructions Pty Ltd, argued that the issues were contractual and not defective work, and that the applicant had failed to comply with the contract, plans, and specifications. The Tribunal found that the pontoon work was not reviewable domestic building work and that the Tribunal did not have jurisdiction to decide a dispute relating to the pontoon. The Tribunal also found that the other complaints were not substantiated by evidence and that the applicant had failed to provide expert evidence to support his claims. The Tribunal dismissed the application and directed the parties to make and exchange submissions in respect to costs.

The legal issues in this case were whether the Tribunal had jurisdiction to decide a dispute relating to the pontoon and whether the applicant had established a basis for his claims. The Tribunal found that it did not have jurisdiction to decide a dispute relating to the pontoon as it was excluded building work under the Queensland Building and Construction Commission Regulations 2018 (Qld). The Tribunal also found that the applicant had not established a basis for his claims as there was insufficient evidence to support his allegations of defective work. The Tribunal dismissed the application and directed the parties to make and exchange submissions in respect to costs.

Orders