Gillett v Swat Contracting Pty Ltd - [2024] QCAT 579

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
GILLETT V SWAT CONTRACTING PTY LTD [2024] QCAT 579

PARTIES:

SANDY GILLETT

(applicant)

v

SWAT CONTRACTING PTY LTD

(respondent)

APPLICATION NO/S:

BDL282-23

MATTER TYPE:

Building matters

DELIVERED ON:

12 December 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Proceeding dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where parties are expected to act in their own best interests in conducting proceedings – where the applicant did not file statements of evidence

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where the applicant engaged the respondent to undertake domestic building work – where there was no written contract between the parties – questions as to standard of workmanship by the respondent – whether the relationship between the applicant and the respondent falls within one of the special categories of cases in which a duty of care is owed

Civil Liability Act 2003 (Qld) s 4, s 9, s 11
Queensland Building and Construction Commission Act 1991 (Qld) s 42, s 77, sch 1B

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29, s 48

Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476

Harrison & Anor v Meehan [2017] QCA 315

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This proceeding involves a dispute about building work.
I make the following findings about jurisdiction:
(a)The applicant is a building owner;
(b)The respondent is a building contractor;
(c)The respondent undertook building work for the applicant;
(d)The building work is domestic building work;
(e)The dispute between the parties is a domestic building dispute;
(f)The requirements of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) have been complied with;
(g)The Tribunal has jurisdiction to decide the dispute.
I am satisfied that service of the originating application has been effected upon the respondent. The respondent has not filed a response to the application despite directions by the Tribunal to do so. Directions were made by the Tribunal that if the respondent failed to file a response the applicant would be entitled to a final decision. That entitlement arises out of the operation of s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). If without reasonable excuse a respondent fails to comply with Tribunal orders or directions and thereby causes to the applicant unnecessary disadvantage the applicant is entitled to a final decision. Here, the respondent’s failure to file a response is unnecessarily disadvantaging the applicant who is entitled to have the proceeding progressed expeditiously to finalisation. I have considered the matters at s 48(3) of the QCAT Act. There is nothing before me to suggest that the matters referred to at…

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: [2024] QCAT 579
Decision Date: 12 December 2024

CaseChat Overview and Summary

The case of Gillett v Swat Contracting Pty Ltd involves a dispute between a homeowner and a building contractor over payment for work performed on a domestic property. The matter was heard by the Queensland Civil and Administrative Tribunal, which is responsible for resolving disputes related to administrative law and contractual obligations. The applicant, Ms. Gillett, claimed that she had paid the respondent, Swat Contracting, $17,500 for building work but alleged that the quality of the workmanship was substandard. The respondent denied these claims and contested the payment amount. The central legal issues before the Tribunal were whether the applicant had indeed paid the respondent the claimed amount, and if so, whether the respondent owed a duty of care in relation to the standard of workmanship. Furthermore, the Tribunal had to consider whether the relationship between the parties fell within a special category that would impose a duty of care, given that there was no written contract outlining the terms of the agreement.

The Tribunal's reasoning focused on the procedural obligations of the parties and the evidence presented. The applicant failed to comply with a specific direction to file statements of evidence that would substantiate her claim of payment to the respondent. Without this evidence, the Tribunal was unable to find that any payment of $17,500 was made. The absence of evidence also precluded the Tribunal from making any orders for repayment. The Tribunal emphasised that the applicant's failure to act in her own best interests, specifically by not providing the required evidence, directly resulted in the dismissal of the proceeding.

In its conclusion, the Tribunal dismissed the application due to the applicant's failure to comply with procedural requirements and provide evidence to support her claims. The Tribunal noted that the applicant's lack of action in her own best interests led to the unfortunate outcome of the dismissal. Consequently, the Tribunal did not make any orders for the repayment of monies by the respondent to the applicant. The dismissal of the proceeding was a direct result of the applicant's procedural shortcomings.

Orders

Orders of the court

Proceeding dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the originating application, the applicant says that she paid to the respondent $17,500. The directions, which the applicant failed to comply with, included a direction that the applicant file evidence of the payments made by the applicant to the respondent. There is no evidence before the Tribunal to support the assertion in the originating application that an amount of $17,500 was paid to the respondent. In the absence of any supportive evidence I am not prepared to find that such a payment (or payments) was made. It follows that I am not prepared to make any order for the repayment of any monies by the respondent to the applicant. Conclusion The unfortunate outcome in this case is the direct result of the applicant’s failure to act in her own best interests. The proceeding is dismissed.

Ratio Decidendi

Legal Principle Established

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