Field v Carey - [2023] QCAT 196

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Field v Carey [2023] QCAT 196

PARTIES:

KEITH JOHN FIELD AND MARIA FIELD

(applicant)

v

ADAM BRIAN CAREY

(respondent)

APPLICATION NO/S:

BDL185-20

MATTER TYPE:

Building Matters

DELIVERED ON:

28 April 2023

HEARING DATE:

20 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The Respondent must pay the Applicants the sum of $48,667.74 by 31 August 2023

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DEFECTIVE WORK – where parties entered into a contract for the construction of a paved concourse around an inground swimming pool – where concrete slab supporting the pavers moved causing cracking of pavers – where no engineering design – where movement due to moisture in the subsoil – whether movement caused by lack of design of reinforcing steel – whether dowels from slab to pool coping sufficient – whether rectification will result in a betterment for the applicants – whether method and cost of rectification reasonable

Fankhauser v Mission Beach Property Management [2017] QCATA 65

Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd & Anor [2001] NSWCA 313
Hoad v Scone Motors Pty Ltd [1977] NSWLA 88

Jones v Dunkel (1959)101 CLR 298

APPEARANCES & REPRESENTATION:

Applicant:

Mr Hick of counsel instructed by Robinson Locke Litigation Lawyers

Respondent:

Irish Bentley Lawyers

REASONS FOR DECISION

[0]In February 2012 the applicants purchased an acreage property at Priors Pocket Road, Moggill with the intention of renovating the property to use for their retirement. The house and grounds needed substantial work. The applicants engaged an architect in mid 2013 drawings were prepared for the renovation work to be undertaken. The work commenced after this and took some years to complete. Part of the renovation and re-modelling work included refurbishment of the swimming pool at the rear of the house.

The swimming pool is rectangular with a U shaped design in the middle of the long side between the pool and the house. The U shape has steps to allow ingress and egress to and from the pool. There is a bond beam coping on the perimeter of the pool with tiles on top of the coping. The pool is separated from the house by lawn and enclosed with typical pool fencing.[1]
[1]To better understand the configuration a photo of the original pool is attachment “A” to these reasons.
As part of the overall redesign of the grounds the applicants decided to integrate the pool area into the new extended tiled back deck of the house so there was a seamless transition from the deck area to the pool. This involved the construction of a concourse around the pool, beyond the coping, with the tiled paving then going across the existing grassed area to the back deck of the house.[2]
[2]Attachment “B” is a photo of the pool after the renovation.
The applicants contacted Mr Carey to inspect the works and provide a quotation to undertake the pool work, as described to him by Mr Field. The quote,…

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.

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Details

Case: [2023] QCAT 196
Decision Date

CaseChat Overview and Summary

The applicants, Keith and Maria Field, sought damages from the respondent, Adam Carey, for defects in the construction of a paved concourse around their swimming pool. The dispute was heard and determined by Member Richard Oliver of the Queensland Civil and Administrative Tribunal (QCAT). The central issue was whether the damage to the tiles was caused by defective building work performed by the respondent or solely by movement in the soil. The court found that the damage was caused by both movement in the soil and defective building work. The court concluded that the works constituted defective building work as the dowels used to secure the new slab to the existing coping of the pool were insufficient to prevent vertical movement. Additionally, the court found that the respondent breached an implied term to carry out the renovation works in a proper and workmanlike manner and with reasonable care and skill. The court ordered the respondent to pay the applicants the sum of $48,667.74 by 31 August 2023. This sum includes the cost of rectifying the defects and an allowance for betterment. The court also made observations regarding the potential for an award of costs, guided by Rule 86 of the QCAT Rules, which provides for "reasonable costs" with respect to offers of settlement.

Orders