QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19
PARTIES: AUSTIN GILLHAM (applicant/appellant)
v
KERNOHAN CONSTRUCTION PTY LTD (respondent)
APPLICATION NO/S:
APL191-19
ORIGINATING APPLICATION NO/S:
BDL116-15
MATTER TYPE:
Appeals
DELIVERED ON:
14 January 2022
HEARING DATE:
8 October 2020
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
Member HoweORDERS: 1. Leave to appeal is granted;
2. The appeal is allowed;
3. The decision of the Tribunal dated 14 June 2019 is varied as follows:
a) Order 1 is set aside and in lieu thereof it is ordered that Austin Gillham is to pay to Kernohan Construction Pty Ltd t/as Kernohan Construction $1,934.78;
b) Order 2 is set aside and in lieu thereof it is ordered that a copy of this decision is to be provided by the Registry to Master Builders Queensland and of the funds held by Master Builders Queensland the amount of $1,934.78 is to be paid to Kernohan Construction Pty Ltd t/as Kernohan Construction in satisfaction of the amount due under Order 1 and the balance paid to Austin Gillham.
4. The parties are to file two (2) copies and exchange (1) copy of submissions on the costs of the appeal, such submissions not to exceed three (3) pages in length, within 14 days of the date of this decision;
5. The parties are to file two (2) copies and exchange one (1) copy of submissions in reply, such submissions not to exceed three (3) pages in length, within 7 days after receipt of the costs submissions filed and served in accordance with Order 4.
6. The costs of the appeal will be determined on the papers.
CATCHWORDS: APPEAL AND NEW TRIAL – APEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SCOPE AND EFFECT OF APPEAL – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where grounds of appeal raise questions of fact and questions of mixed law and fact – consideration of whether to grant leave to appeal – conduct of appeal by way of rehearing pursuant to s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – PERFORMANCE OF WORK – GENERAL – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where builder claimed variation for cost associated with removal and reinstatement of concrete slab – where existence of slab should have been apparent to builder at the time of entering into the contract – where building owner claimed building work defective or incomplete – where building owner asserted payments for variations not complying with the Domestic Building Contracts Act 2000 (Qld) were made by mistake – whether payments made by mistake – whether building owner should be permitted to recover payments – assessment of damages for breach of contract
Domestic Building Contracts Act 2000 (Qld) s 6(5) s 16,…
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- AGLC
- Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19
- Case
- [2022] QCATA 19
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court had to address were whether the payments made by Gillham to Kernohan Construction for the variations were indeed made by mistake and if Gillham should be permitted to recover these payments. Additionally, the court needed to determine the appropriate measure of damages for breach of contract in this context, considering the existence of the concrete slab should have been apparent to Kernohan Construction at the time of entering into the contract.
The court found that the grounds of appeal raised both questions of fact and questions of mixed law and fact, justifying the conduct of the appeal by way of a rehearing under section 147 of the Queensland Civil and Administrative Tribunal Act 2009. The court allowed the appeal, set aside the previous orders, and ordered that Gillham pay Kernohan Construction the sum of $1,934.78. Furthermore, the court directed that the balance of the funds held by Master Builders Queensland be paid to Kernohan Construction in satisfaction of the amount due under the original order, with the remainder to be paid to Gillham. The court also outlined the procedure for the parties to submit and exchange their respective costs submissions within specified time frames.
In conclusion, the court granted leave to appeal, allowed the appeal, varied the decision of the Tribunal, and ordered the payment of specific amounts to the respective parties. The costs of the appeal were to be determined on the papers.
Orders
Orders of the court
1. Leave to appeal is granted;
2. The appeal is allowed;
3. The decision of the Tribunal dated 14 June 2019 is varied as follows:
a) Order 1 is set aside and in lieu thereof it is ordered that Austin Gillham is to pay to Kernohan Construction Pty Ltd t/as Kernohan Construction $1,934.78;
b) Order 2 is set aside and in lieu thereof it is ordered that a copy of this decision is to be provided by the Registry to Master Builders Queensland and of the funds held by Master Builders Queensland the amount of $1,934.78 is to be paid to Kernohan Construction Pty Ltd t/as Kernohan Construction in satisfaction of the amount due under Order 1 and the balance paid to Austin Gillham.
4. The parties are to file two (2) copies and exchange (1) copy of submissions on the costs of the appeal, such submissions not to exceed three (3) pages in length, within 14 days of the date of this decision;
5. The parties are to file two (2) copies and exchange one (1) copy of submissions in reply, such submissions not to exceed three (3) pages in length, within 7 days after receipt of the costs submissions filed and served in accordance with Order 4.
6. The costs of the appeal will be determined on the papers.
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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