Filliston v Quickspec Modular Pty Ltd - [2022] NSWCATCD 169

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Filliston v Quickspec Modular Pty Ltd [2022] NSWCATCD 169
Hearing dates: 22 July 2022
Date of orders: 25 July 2022 [amended 12 August 2022]
Decision date: 25 July 2022
Jurisdiction: Consumer and Commercial Division
Before: G Ellis SC, Senior Member
Decision:
The Notice of Order issued 25 July 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:
1. As against the first respondent, Quickspec Modular Pty Ltd, the application is dismissed.
2. The second respondent, Benjamin Ralph Blanchette, is to pay the applicant, Zoe Filliston, $34,360.19 within 28 days.
3. Any submissions in support of an application for costs (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 8 August 2022 and any such submissions should include details of the amount of costs sought.
4. Any submissions in response to any such application (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 22 August 2022.
5. Any submissions in reply (not exceeding two pages) are to be provided to the other parties and the Tribunal by 29 August 2022.
6. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, ie without the need for a further hearing.

Catchwords:
BUILDING AND CONSTRUCTION - Whether contract between owner and individual or company - defective work - whether to make work order or money order - reasonable cost of rectification

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Bonita v Shen [2016] NSWCATAP 159
Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193
Latoudis v Casey [1990] HCA 59
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
News v Cotes [2019] NSWCATAP 186
Oshlak v Richmond River Council [1998] HCA 11
Taylor v Johnson [1983] HCA 5
Thompson v Chapman [2016] NSWCATAP 6

Category: Principal judgment
Parties: Zoe Filliston (Applicant)
Quickspec Modular Pty Ltd (First Respondent)
Benjamin Ralph Blanchette (Second Respondent)
Representation: S Campbell (Applicant)
A Blanchette (First Respondent)
Second Respondent (self-represented)

File Number(s): HB 21/44220
Publication restriction: Nil

REASONS FOR DECISION

Outline

After initially claiming $22,961.70, an amount of $86,908.66 was sought at the hearing in a claim for damages arising from roofing work on a property in Woolgoolga. The homeowner sought a money order against a company and an individual.
Having considered the evidence and submissions, the Tribunal determined that the owner was only entitled to an order against the individual and not the company, and that the recoverable amount was $34,360.19.

History of the proceedings

On 26 October…

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 Filliston v Quickspec Modular Pty Ltd

Details

AGLC: Filliston v Quickspec Modular Pty Ltd [2022] NSWCATCD 169
Case: [2022] NSWCATCD 169
Decision Date: 25 July 2022

CaseChat Overview and Summary

The applicant, Zoe Filliston, sought a determination from the Civil and Administrative Tribunal regarding a dispute with Quickspec Modular Pty Ltd, a building company, and its director, Benjamin Ralph Blanchette, concerning the quality of work performed on her property. The dispute arose from a contract for the construction of a modular home, which Filliston claimed was defective. She sought either an order for the company to rectify the defects or payment of the reasonable cost of rectification.

The primary legal issues addressed by the Tribunal were whether the contract was between Filliston and Quickspec Modular Pty Ltd or Blanchette individually, and if so, who was liable for the defects and the cost of rectification. The Tribunal had to determine the nature of the contractual relationship and whether Blanchette, as an individual, was personally liable for the company's obligations. Additionally, the Tribunal considered whether the appropriate remedy was an order for the company to rectify the defects or a money order for the reasonable cost of rectification.

The Tribunal concluded that the contract was with Quickspec Modular Pty Ltd, and not with Blanchette individually. However, it found Blanchette personally liable for the defects due to his role as the company's director and his involvement in the contractual negotiations and work. The Tribunal dismissed the application against Quickspec Modular Pty Ltd but ordered Blanchette to pay Filliston $34,360.19 within 28 days to cover the reasonable cost of rectifying the defects. The Tribunal also outlined a schedule for submissions regarding the costs of the proceedings.

The final orders of the Tribunal included dismissing the application against Quickspec Modular Pty Ltd, ordering Blanchette to pay Filliston the sum of $34,360.19, and setting a timeline for the submission of costs related to the proceedings. The Tribunal emphasised the importance of adherence to the stipulated page limits for the various submissions and indicated a preference for determining costs on the papers, unless a further hearing was deemed necessary.

Orders

Orders of the court

The Notice of Order issued 25 July 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:

1. As against the first respondent, Quickspec Modular Pty Ltd, the application is dismissed.

2. The second respondent, Benjamin Ralph Blanchette, is to pay the applicant, Zoe Filliston, $34,360.19 within 28 days.

3. Any submissions in support of an application for costs (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 8 August 2022 and any such submissions should include details of the amount of costs sought.

4. Any submissions in response to any such application (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 22 August 2022.

5. Any submissions in reply (not exceeding two pages) are to be provided to the other parties and the Tribunal by 29 August 2022.

6. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, ie without the need for a further hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Filliston v Quickspec Modular Pty Ltd [2022] NSWCATCD 169
Hearing dates:	22 July 2022
Date of orders:	25 July 2022 [amended 12 August 2022]
Decision date:	25 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Ellis SC, Senior Member
Decision:	The Notice of Order issued 25 July 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows: 1. As against the first respondent, Quickspec Modular Pty Ltd, the application is dismissed. 2. The second respondent, Benjamin Ralph Blanchette, is to pay the applicant, Zoe Filliston, $34,360.19 within 28 days. 3. Any submissions in support of an application for costs (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 8 August 2022 and any such submissions should include details of the amount of costs sought. 4. Any submissions in response to any such application (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 22 August 2022. 5. Any submissions in reply (not exceeding two pages) are to be provided to the other parties and the Tribunal by 29 August 2022. 6. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, ie without the need for a further hearing.
Catchwords:	BUILDING AND CONSTRUCTION - Whether contract between owner and individual or company - defective work - whether to make work order or money order - reasonable cost of rectification
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Bonita v Shen [2016] NSWCATAP 159 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Latoudis v Casey [1990] HCA 59 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Taylor v Johnson [1983] HCA 5 Thompson v Chapman [2016] NSWCATAP 6
Category:	Principal judgment
Parties:	Zoe Filliston (Applicant) Quickspec Modular Pty Ltd (First Respondent) Benjamin Ralph Blanchette (Second Respondent)
Representation:	S Campbell (Applicant) A Blanchette (First Respondent) Second Respondent (self-represented)
File Number(s):	HB 21/44220
Publication restriction:	Nil