Ellis v Wood

[2015] QCAT 232

CITATION: Ellis v Wood [2015] QCAT 232

PARTIES:	Imelda Ellis (Applicant/Appellant)
v
George Wood (Respondent)

APPLICATION NUMBER: BDL028-15

MATTER TYPE: Building matters

HEARING DATE: 19 June 2015

HEARD AT: Brisbane

DECISION OF: Senior Member O’Callaghan

DELIVERED ON: 24 June 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for a default decision filed 19 June 2015 is upheld.

2.    George Wood to pay Imelda Ellis the amount of $9,043.89 by 4:00pm on 7 July 2015.

3.    George Wood to pay Imelda Ellis’s costs limited to an amount of $295.00 by 4:00pm on 7 July 2015.

4.    George Wood to pay Imelda Ellis interest of $98.86 by 4:00pm on 7 July 2015.

CATCHWORDS:

BUILDING DISPUTE – where applicant granted decision by default – where claim is an unliquidated debt pursuant to the Act

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50A, s 102
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 64
Uniform Civil Procedure Rules 1999 (Qld), s 691, Schedule 3

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Ellis engaged Mr Wood to build a concrete block fence in July 2014.  The fence was constructed and final payment made on or about 14 July 2014. 

2. On 22 July Brisbane City Council inspected the fence and issued an Enforcement Notice under s 248 of the Building Act 1975 (Qld). The fence was considered dangerous and of faulty construction. Removal of the fence was ordered by Brisbane City Council and, in the interim, the fence was required to be braced and enclosed by temporary fencing to ensure public safety.

3. On 2 March 2015 Ms Ellis filed an application for a domestic building dispute seeking to recover costs associated with defective work performed by Mr Wood in the construction of the fence. 

4. The application was given to Mr Wood on 26 May 2015 in accordance with the affidavit of service filed with the Tribunal.

5. Mr Wood had a period of 28 days to file and give his response to the application as set out in the Tribunal Rules.[1]

   [1]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 45.

6. Mr Wood failed to file a response within the required time. An application was made with the Tribunal on 19 June 2015 by Ms Ellis for a decision by default[2] to recover the amount outstanding together with interest and costs.

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 50A.

7. Ms Ellis also filed an affidavit in support of the request for a decision by default confirming Mr Wood has not paid the amount claimed by Ms Ellis of $9,043.89.

8. The Tribunal is satisfied that the requirements of s 50A of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) in regard to the granting of a decision by default have been met in that Mr Wood has not provided his response to the application which has been served upon him within the required time.

9. The Tribunal notes that the claim in this case is made up of various invoices which include some invoices that were originally issued to Mr Wood but which were subsequently paid by Ms Ellis.  The amounts owing are listed below:

   Cost of wall construction      $6,002.17
   Cost of wall demolition        $3,104.00
   Less wrongly included         $     62.28
   Total  $9,043.89

10. Ms Ellis has also requested 3% per annum interest on a daily basis on the amount claimed from 12 February 2015 to 24 June 2015 which is granted in accordance with s 50A(3)(b) of the QCAT Act. I calculate this as a daily rate of 3% per annum of $9,043.89 for 133 days which equals $98.86.

11. Ms Ellis has made a claim for the fee paid for the application in the amount of $295.00 which is granted in accordance with s 50A(3)(c) of the QCAT Act.

12. Section 50A(3) of the QCAT Act only allows for a claim of the liquidated amount of the starting application, interest, application fees and legal costs. Accordingly, costs of $121.00 for service fee and $395.00 for private investigation are dismissed.

13. I order that:

    1.    Mr Wood to pay Ms Ellis the amount of $9,043.89 by 4:00pm on 7 July 2015. 

    2.    Mr Wood to pay Ms Ellis’s costs limited to an amount of $295.00 by 4:00pm on 7 July 2015.

    3.    Mr Wood to pay Ms Ellis interest in the sum of $98.86 by 4:00pm on 7 July 2015.

    4.    The application for costs for service fee and private investigation are dismissed.