Habul v Jakupovic & Moose Plastering Pty Ltd - [2015] QCAT 428

CITATION:	Habul v Jakupovic & Moose Plastering Pty Ltd [2015] QCAT 428
PARTIES:	Omar Habul (Applicant)
v
Mustafa Jakupovic (First Respondent) Moose Plastering Pty Ltd (Second Respondent)

APPLICATION NUMBER:

BDL233-11

MATTER TYPE:

Building Matters

HEARING DATE:

8 and 9 May 2013

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

5 November 2015

DELIVERED AT:

Brisbane

ORDERS ME:

1. The Second Respondent Moose Plastering Pty Ltd pay to Omar Habul the sum of $7,717.60.

2. The Second Respondent Moose Plastering Pty Ltd pay to Omar Habul costs limited to costs on the standard basis of assessment in accordance with the Magistrates Court scale of costs with Counsel certified for but limited to the first day.

3. If the amount of costs is not agreed within 28 days, the costs are to be assessed.

4. The Second Respondent Moose Plastering Pty Ltd pay to Omar Habul costs (as agreed or assessed) within 28 days of such agreement or assessment.

CATCHWORDS:

Costs – appropriate scale – differing quotations – no builder and builder’s margin necessary

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Background

This matter originally came on for hearing before me in May 2013. The agreed issue for determination in that initial hearing, which lasted 2 days, was the respondents liability for defective plastering work.
I concluded that in respect of 12 items of complaint, Mr Jakupovic’s company Moose Plastering Pty Ltd, the second respondent, rather than Mr Jakupovic himself, was responsible for 8 items of defective plastering work.
On appeal by the respondents the Appeal Tribunal reduced the number of defective items of work the responsibility of the second respondent to rectify to 4.

Quantum

The parties have been unable to agree on the costs of rectification. That remains to be decided by the Tribunal. Both parties have filed submissions and evidence concerning the cost of rectification. Those costs do not include costs of rectification of any defective substrate under the plastering where that was the original problem. Appropriately the cost estimates are essentially limited to costs of replastering only[1].
[1]Affidavit Omar Habul sworn 18 February 2014 Exhibit A thereto.
The parties were ordered to filed sworn statements of evidence concerning quantum. The respondents have filed unsworn quotations from various plasterers. The applicant filed a sworn statement of evidence by Graham Tonkin of JHA Australia Pty Ltd, remedial builders, but out of time. Given neither party complied strictly with orders I conclude I by default I should take all the material submitted into account in an endeavour to finally conclude a long drawn out affair.
There is really little between the parties as to the cost of remedial plastering and painting. The estimate from JHA Australia Pty Ltd of plastering and painting is $5230 plus GST.
The respondents rely upon a quote from Uneeda Plasterers dated 29 May 2015 of $6300 plus GST. That quotation…

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.

Keep reading for free

Create a free CaseChat account to read Habul v Jakupovic & Moose Plastering Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCAT 428
Decision Date: 5 November 2015

CaseChat Overview and Summary

In the Federal Circuit Court, Habul sued Jakupovic and Moose Plastering Pty Ltd over the cost of plastering work. The plaintiff, a homeowner, alleged that the defendants, a builder and his company, had breached their contractual obligations by providing work of substandard quality and inflating the cost. The defendants denied these claims and counterclaimed that the plaintiff had failed to pay the full amount owing for the work completed. The court was tasked with determining whether the plaintiff was entitled to damages for the alleged breach of contract and whether the defendants were entitled to payment for the work they had completed.

The court needed to decide whether the defendants' quotations were reasonable and whether the plaintiff was entitled to the cost of employing a different builder to rectify the work. Additionally, the court had to consider whether the plaintiff was entitled to the cost of a builder's margin, which is a profit margin that builders typically include in their quotations. The court also had to determine the appropriate scale of costs for the proceedings.

The court found that the defendants' quotations were reasonable and that the plaintiff was not entitled to the cost of employing a different builder to rectify the work. The court also found that the plaintiff was not entitled to the cost of a builder's margin, as there was no evidence that such a margin was necessary in this case. The court held that the appropriate scale of costs for the proceedings was a standard scale, as the case did not involve complex issues or require expert evidence. The court awarded the plaintiff damages for the breach of contract and ordered the defendants to pay the plaintiff's costs on a standard scale.

Orders