| CITATION: | Freestyle Constructions and Maintenance Pty Ltd v Chen [2015] QCAT 343 |
| PARTIES: | Freestyle Constructions and Maintenance Pty Ltd (Applicant) |
| v | |
| Li Meng Shu Chen (Respondent) |
| APPLICATION NUMBER: | BDL270-14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 22 July 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howe |
| DELIVERED ON: | 4 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The claim by the applicant is dismissed. The counter-application by the respondent is dismissed. | |
| CATCHWORDS: | Terms of contract - minor civil dispute - transfer to the building list - credibility –variations - application of Domestic Building Contracts Act 2000 (Qld) - unreasonable hardship - exceptional circumstances - lack of evidence to the building Better Homes Queensland Pty Ltd v O’Reilly & Anor [2012] QCATA 37 | |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Cheuk Tik Kwok represented the applicant company |
| RESPONDENT: | Li Meng Shu Chen represented herself |
REASONS FOR DECISION
BACKGROUND
Ms Chen owns a home at Sunnybank. She engaged a builder to do extension work at the property. The builder didn’t finish the work. She entered into a contract with Mr Kwok through his company to complete some or all of the work.
Mr Kwok did work at the property but he did not roof or finish off a carport at the house. The parties fell out about that. Mr Kwok maintained it was never within his contract. Ms Chen claimed to the contrary. Additionally Mr Kwok claimed extra for variation work he alleged he did. Ms Chen disagreed the variation work claimed for was additional to the contract.
Mr Kwok initially commenced proceedings in the Tribunal by way of Minor Debt application. He claimed $20,195.95 for the variations to the contract. Ms Chen sought to counter-claim against Mr Kwok. The counter-application was over the monetary limit for minor civil disputes ($25,000) and counter-claims are not allowed in minor debt actions. The file was transferred to the building list and orders made as to the parties filing statements of evidence. In the Minor Debt proceedings Mr Kwok had commenced the action in his own right. It appears after evidence was heard the Tribunal ordered the name of the applicant be changed to Mr Kwok’s company, Freestyle Constructions and Maintenance Pty Ltd.
The applicant’s claim remains for the sum of $20,195.95 for variations. Ms Chen has counter-claimed seeking $38,564.15 damages for failure to complete work under the contract plus she seeks liquidated damages of $37,150.
Ms Chen required an interpreter at hearing. She also had her son Kwan Hang Chen present to assist her.
The Issues for Determination
The issues for determination in this matter are as follows:
1.Did the contract between the applicant and respondent executed 13 December 2012 include the installation of a roof to an external carport structure?
2.If the answer to that is yes, what damages flow in result of the failure of the builder to do that?
3.If the answer is no to question 1, is there otherwise incomplete or defective building work?
4.If…
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- Freestyle Constructions and Maintenance Pty Ltd v Chen [2015] QCAT 343
- Case
- [2015] QCAT 343
- Decision Date
CaseChat Overview and Summary
The court assessed the evidence presented by both parties, focusing on the credibility and the nature of the contract. It was determined that there was insufficient evidence to substantiate that the contract was for a domestic building, a critical factor under the Domestic Building Contracts Act. The court found that the applicant had not demonstrated that the variations were agreed upon or that the respondent had unreasonably refused to pay for the works completed. The applicant's claim for additional payments was dismissed due to the lack of credible evidence supporting the claimed variations and the absence of proof that the respondent had unreasonably refused payment.
As a result, the court dismissed both the applicant's claim and the respondent's counter-application. The court held that the applicant had not met the burden of proof required to establish the validity of the variations and the associated payment claims. The respondent's contentions of unreasonable hardship and exceptional circumstances were also not substantiated by the evidence presented. Therefore, the court ruled in favour of the respondent, dismissing both the original claim and the counter-application.
Orders
Orders of the court
The claim by the applicant is dismissed. The counter-application by the respondent is dismissed.
Background
Background to the litigation
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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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