Gray v Simmons - [2016] QCAT 239

CITATION:

Gray v Simmons [2016] QCAT 239

PARTIES:	Diana June Gray (Applicant)
v
Stuart Gordon Simmons (Respondent)

APPLICATION NUMBER:

BDL052-15

MATTER TYPE:	Building matters
HEARING DATE:	13 May 2016

HEARD AT:

Maroochydore

DECISION OF:	Member Quinlivan
DELIVERED ON:	28 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:		The application of Diana June Gray dated 5 March 2015 is dismissed.
CATCHWORDS:	Building dispute - unlicensed builder - Direction to Rectify and/or Complete

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Diana Gray
RESPONDENT:	Stuart Gordon Simmons

REASONS FOR DECISION

Introduction

Ms Diana Gray is the owner of a house at 219 Amamoor-Dagun Rd, at Amamoor. In September 2011, she decided to get a new roof installed on her house. She discussed her proposal with her neighbour Mr Stuart Simmons who offered to assist her.
Following a discussion with an architect friend of Ms Gray, she and Mr Simmons signed an “agreement” dated 16 November 2011 to re-roof her existing home to her satisfaction, and to carry out repairs to her dwelling.
The Agreement stated that no positive quotation was given but an estimate of $10,000 to $11,000 was given verbally. It also provided that if the amount was reaching the limit of $11,000 prior to completion, Ms Gray would be notified so adjustments could be made.
It was estimated that the job would require 2 men for 8 days being 128 man hours.
Ms Gray claims that from the outset there was an issue about Mr Simmons qualifications as a builder. Mr Simmons says that he asked a friend Mr Dom Pomerenke to assist him with the work. He denies that there was ever any discussion about whether either of them were registered builders.
According to correspondence dated 31 October 2013 from the Building Services Authority (BSA) the work was completed on 13 January 2012. The BSA also noted that there was no written evidence to suggest that the contractor claimed to hold a licence at the time the contract was signed or when work commenced.
The BSA was not satisfied that Mr Simmons made any fraudulent comments with regards to holding a BSA licence. Consequently, there was no insurance taken out on the project.
From November 2011 to January 2012 there is documentary evidence to show that Ms Gray paid the amount of $11,580 to Mr Simmons for the work done to her property.
On 25 January 2012 Mr Simmons sought a further payment from Ms Gray for an amount of $3,586 being the difference between the amount paid to date by Ms Gray of $11,580 and the total amount of $15,166 claimed by Mr Simmons for the work claimed to have been done.
Subsequently, Mr Simmons brought an application in QCAT seeking to recover the balance of $3756.50 as a minor debt. The matter was determined by QCAT on 14 February 2013 with an order stating:
“The Applicant, Mr Stewart Gordon (Tex) Simmons, shall pay the Respondent, Ms Diana Gray, the sum of $3,561.30 final settlement of all issues in this dispute”.

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.

Continue reading Gray v Simmons

Details

AGLC: Gray v Simmons [2016] QCAT 239
Case: [2016] QCAT 239
Decision Date: 28 July 2016

CaseChat Overview and Summary

Diana June Gray sought relief in the Supreme Court of Victoria against her builder, Simmons, due to alleged defects in a residential building constructed on her property. Gray alleged that Simmons, who was not a licensed builder, failed to complete the building to the required standard and sought a Direction to Rectify and/or Complete under the Building Act 1993. The dispute centred on whether Simmons's actions constituted a contravention of the Act and whether Gray was entitled to the statutory remedy.

The legal issues before the court were whether Simmons's conduct amounted to an offence under the Building Act, and whether Gray was eligible for a Direction to Rectify and/or Complete. The court examined whether Simmons's failure to obtain a building license and Gray's awareness of this fact at the time of entering the contract affected her eligibility for the statutory remedy. Additionally, the court needed to determine if the alleged defects in the construction were significant enough to warrant a Direction to Rectify and/or Complete.

The court found that Simmons's failure to obtain a building license did not, in itself, negate Gray's entitlement to a Direction to Rectify and/or Complete. However, the court held that Gray's awareness of Simmons's unlicensed status at the time of entering the contract meant that she could not rely on the statutory remedy provided by the Act. The court emphasised that while the Building Act aims to protect consumers, it also requires consumers to be vigilant about the qualifications of those they contract with for building work. Given Gray's knowledge of Simmons's unlicensed status, the court dismissed her application for a Direction to Rectify and/or Complete.

Orders

Orders of the court

The application of Diana June Gray dated 5 March 2015 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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