Focon Air Conditioning Pty Ltd v Oslar
[2011] QCATA 6
•25 January 2011
| CITATION: | Focon Air Conditioning Pty Ltd v Oslar [2011] QCATA 6 |
| PARTIES: | Focon Air Conditioning Pty Ltd |
| v | |
| Douglas Oslar and Susan Oslar |
APPLICATION NUMBER: APL021-11
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver Senior Member |
DELIVERED ON: 25 January 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Until further decision of the Tribunal the decision made on 11 November 2010 is stayed.
| CATCHWORDS : | Application of a stay; where applicant failed to attend hearing; where respondents’ claim allowed; where damages assessed in absence of the applicant; whether correct assessment of damages. Queensland Civil and Administrative Tribunal Act 2009; section 145(2) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an application to stay the decision of the Tribunal made on 11 November 2010 that the applicant pay to the respondents the sum of $11,970.00.[1]
[1] QCAT Act section 145(2)
The respondent, Douglas Oslar and Susan Oslar (“the Oslars”) commenced a Minor Civil Dispute proceeding against the applicant on 15 February 2010 claiming, effectively, damages for breach of contract. The contract entered into between the parties was for the supply and installation of a ducted air conditioning system at their new house at 5 Gregory Close, Forest Lake for a cost of $13,000.00
A dispute arose as to the adequacy of the system to effectively air condition the house.
The Ostlars had two independent experts provide reports and both say that the system is undersized.
The claim made is for the cost to upgrade the air conditioning system from the existing 16.4kw to 22kw. The cost of this is $11.970.00 in accordance with the quote provided by Quality Air dated 27 August 2009.
The parties engaged in dispute resolution processes without success and the matter was listed for hearing on 27 May 2010 but adjourned, because one of the parties, Bell Projects Pty Ltd (the builder), could not attend the hearing because Phillip Bell was ill.
It was again listed for hearing on 11 November 2010 but as the applicants were again notified early that morning that Mr Bell was ill, assumed the hearing would not proceed and did not attend QCAT.
In the applicants absence an order was made requiring the applicant to pay to the respondents the sum of $11,970.00 as claimed for the upgrade of the system to a 22kw system in accordance with the quote.
The applicant applied to have the matter reopened but the application was refused.
The applicant then filed an application for leave to appeal and appeal on 20 January 2010. In conjunction with this application, an application for a stay of the decision was also filed.
I propose to grant the stay.
The principle reason for adopting this course is as follows.
Although the claim made by the Ostlors appears to be liquidated, it is in fact a claim for unliquidated damages for breach of contract. That is, leaving aside any dispute about what was discussed between the parties at the time the agreement was made, for the house to be properly air conditioned in accordance with the report of Quality Air, the Ostlars would have had to pay for a 22kw system. I am uncertain as to what that system would cost but I can safely assume it would have cost more that $13,000.00.
By reference to the quote, it seems to me that the damages for breach of contract could reasonably include the following,
(a) Decommission existing unit $ 500.00
(b) Remove from ceiling cavity and install new unit $ 900.00
(c) Rewire and replace new interconnects $1,800.00
(d) Connect to existing ductwork $1,200.00
However I stress that I am not making any final decision on this but simply demonstrating how the damages could be assessed.
Whereas, the cost to supply new unit does not take into account the cost differential in the unit supplied and the upgrade to a 22kw unit. This is a cost the Ostlars would have had to occur in any event. Nor does the decision make any provision for the return of the unit supplied to the applicant.
As it does seem, prima facie, that there may not have been a proper assessment of damages[2] it is appropriate that the stay be granted. I also propose that the application for leave to appeal and appeal be listed for a compulsory conference so there is an opportunity for the parties to come to some sensible agreement about this matter.
[2] By way of further example refer to QCAT Practice Direction 9
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