Freestyle Constructions and Maintenance Pty Ltd v Chen - [2015] QCAT 343

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
Poiner v Quirk & Anor [2007] QDC 299

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…

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

AGLC: Freestyle Constructions and Maintenance Pty Ltd v Chen [2015] QCAT 343
Case: [2015] QCAT 343
Decision Date: 4 September 2015

CaseChat Overview and Summary

In the case of Freestyle Constructions and Maintenance Pty Ltd v Chen, the applicant, a construction company, sought to recover payments for construction services provided to the respondent under a contract. The dispute was categorised as a minor civil matter and subsequently transferred to the building list. The primary issues for the court to determine were whether there were valid contractual variations, the application of the Domestic Building Contracts Act 2000 (Qld), and whether the respondent's claimed hardship was unreasonable or exceptional. Additionally, the court had to consider the credibility of the parties' evidence and whether there was sufficient proof that the contract involved a domestic building.

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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