Elliott v Dyer

[2020] QCAT 451

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Elliott v Dyer [2020] QCAT 451

PARTIES:

MERLE ELLIOTT

(applicant)

v

ROWAN JOHN DYER

(respondent)

APPLICATION NO/S:

BDL008–19

MATTER TYPE:

Building matters

DELIVERED ON:

10 November 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

I order that Rowan John Dyer pay the amount of eight thousand one hundred and eight dollars and twenty cents ($8,108.20) to Merle Elliott.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where an owner claimed damages to remedy defects – where the builder gave no evidence in response to the claims – where the claims were assessed – where costs were allowed for disadvantaging the other party

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102

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

1. Merle Elliott (the owner) engaged Mr Dyer (the builder) to enclose a verandah at her house at the Sunshine Coast, commencing on 4 September 2017.

2. The owner filed an Application for domestic building disputes in the Tribunal on 2 January 2009 seeking damages in the amount of $7,770.00 as the cost of rectification of defective work by the builder.

3. The builder filed a response on 30 January 2019 in which he alleged that there was no contract for works to be carried out; that works were carried out on an as–needs basis as per the client’s instructions; and disputed the payment of monies made to him.

4. Directions were issued by the Tribunal on 17 April 2019 requiring the builder to file his statements of evidence by 4:00pm on 29 May 2019.

5. The tribunal received an email from a financial planner on 14 May 2019, which appeared to have been submitted on behalf of the builder. The email addressed issues as to non–attendance of the builder at an earlier directions hearing, but did not provide any Statements of Evidence on behalf of the builder.

6. The tribunal gave directions on 30 October 2019 requiring the owner to file a signed statement by 12 November 2019 addressing issues directed to be provided at a Compulsory Conference which had been held on 17 April 2019. The owner filed materials on 26 November 2019.

7. The tribunal also gave directions on 30 October 2019 requiring the builder to file in the Tribunal, and give to the owner, statements of evidence in response to the material filed by the owner by 3 December 2019. No statements of evidence were filed by the builder.

8. The tribunal also gave directions on 30 October 2019 that the matter would be decided on the papers, by written submissions from the parties, after 18 January 2020.

9. These are the reasons in determination of this matter.

The owner’s evidence

1. The owner filed a statement of evidence from herself dated 7 May 2019.

2. The owner stated that in the first part of 2017 she had employed a designer to draw up a plan to enclose a verandah which is opposite the master bedroom at her home. She said that the designer introduced her to the builder.

3. The owner described the contract arrangements as follows:[1]

   Rowan (the builder) came to my house on the Saturday he gave me his business card saying he is a registered builder licensed and building for 30 years, he wrote me out a quote $10,912.00 I showed him the area and gave him a copy of the drawing he told me if I paid cash he would do it for $50 an hour.

   I was to order the windows and pay for them.

   ….. In the first week he had to order supplies he would go and get the materials and ring me and I would put them on my bank card

   [1]Statement of Mel Elliott filed 7 May 2019.

4. The owner attached a photocopy of a hand written document which she said was written by the builder as his quote on 2 September 2017. The document read as follows:[2]

   [2]Ibid p 2.

Carpenter builder two weeks	$4,000
Stacks building supplies	$1,193
Suncoast windows	$4,828
CRB rock linings internal batts	$250
(Subtotal)	$10,271
$641
Total	$10,912

1. The owner says that work commenced on 4 September 2017. She says that she made cash payments to the builder as follows:[3]

   [3]Ibid p 5.

9.9.17	$2,000
12.9.17	$400
29.9.17	$1,000
6.10.17	$800
Total	$4,200

1. The owner says that she paid for materials as follows:[4]

   [4]Ibid.

4.9.17	Stacks Sunshine Coast Warana	$54.68
4.9.17	Stacks Sunshine Coast Warana	$799.87
7.9.17	Sunshine Mitre 10 Caloundra	$969.16
6.10.17	Plaster Warehouse P/L	$299.95
28.9.17	Master Warehouse	$28.30
4.9.17	Big River Group	$854.55
12.9.17	Master Warehouse	$271.65
9.10.17	Suncoast Windows	$176.00
14.9.17	Stacks building supplies	$60.40
27.9.17	Suncoast Windows	$4,828.00
Total	$8,342.56

1. An inspection report by a Queensland Building and Construction Commission Inspector dated 1 March 2018 identified a number of issues which were considered to be defective building work.

2. The owner obtained a quote on 10 October 2018 from Dean Butt to rectify defective works in the amount of $7,770.00.

Discussion

1. There is undisputed evidence from the owner that a quote in writing was provided by the builder for the works, and that the builder conducted works accordingly. Whilst there is no formal building contract in writing, a contract for building works between the parties was clearly formed.

2. The owner has claimed for defective works. The report of the Queensland Building and Construction Commission supports her contentions that there are defects in the work that was performed. The owner has obtained a quote for rectification of the works.

3. The builder has had the opportunity to respond to the claims by the owner, and file statements of evidence in response. No such material has been filed by the builder.

4. The total of the cash payments of $4,200 to the builder, and the materials in the amount of $8,342.56 paid for by the owner, are $12,542.56. That amount is in excess of the contract price of $10,912.00 which included materials.

5. There are therefore no monies owing to the builder in respect of the works.

6. The need for rectification, or the cost of the claimed rectification, has not been challenged by the builder by any evidence.

7. In the absence of any contrary evidence by the builder, I accept the allegations of the owner that the work is defective, and accept that the quote is a reasonable cost for rectification.

8. I allow the amount of the quote for rectification of $7,770.00 as damages for breach of contract.

9. The owner has applied for costs.

10. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that each party usually bears their own costs. Section 102 provides that the tribunal may make an order for costs if it considers the interests of justice require it to make the order. Section 102(3)(a) provides that the tribunal may have regard to whether a party unnecessarily disadvantages another party to the proceeding.

11. The builder has not responded to the claim in any substantial way, and has put the owner to the expense of pursuing her claim to a decision. That conduct of the builder has unnecessarily disadvantaged the owner.

12. The owner has incurred a filing fee in the Tribunal of $338.20. The application refers to costs sought of $120.50, but no basis for those costs is identified.

13. I allow the filing fee as costs to the owner of $338.20.

Conclusion

1. I am satisfied that the claim by Merle Elliott in the full amount of $7,770.00 is substantiated.

2. I allow costs in the amount of $338.20

3. The total award is $8,108.20

4. I order that Rowan John Dyer pay the amount of $8,108.20 to Merle Elliott.