Habul v Jakupovic & Moose Plastering Pty Ltd - [2013] QCAT 452

CITATION:

Habul v Jakupovic & Moose Plastering Pty Ltd [2013] QCAT 452

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:

Michael Howe, Member

DELIVERED ON:

22 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applicant file in the Tribunal 2 copies and serve on the Respondents 1 copy each of any sworn statements of evidence with supporting documents attached concerning appropriate measures and costs of rectification of defects together with any submissions concerning costs of the proceedings by 30 September 2013.

The Respondents file in the Tribunal 2 copies and serve on the Applicant 1 copy of any sworn statements of evidence in reply together with any submissions concerning costs of the proceedings by 14 October 2013.
The matter be thereafter dealt with on the papers.

CATCHWORDS:

BUILDING MATTERS - Contracting party – joint experts report – further dissenting report – exchange of trades responsibility for defects – transfer of responsibility for defects between trades - Level 4 plasterboard finish – straight and true substrate – notification of structural defects to a builder – assumption of responsibility for defects by fixing plasterboard – determination of liability without quantum.

Parry & Anor v Ewart [2000] QDC 54

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

The Applicant was represented by Mr A M Christie of Counsel instructed by Bartels Lawyers

RESPONDENTS:

The Respondents were represented by Ms J Crawford of Counsel instructed by Wheldon & Associates

REASONS FOR DECISION

Mr Habul is a licensed builder. Mr Jakupovic is a licensed plasterer. Mr Jakupovic trades through a company Moose Plastering Pty Ltd.
Mr Habul built a home for himself at Drewvale. He had known Mr Jakupovic for a number of years, since Mr Jakupovic came to Australia. He asked him to do the plastering work on the Drewvale home.
The plastering was done over the period October 2010 to approximately March 2010.
Mr Habul moved his family into his new home in early April 2011. Sometime after that however he became dissatisfied with the plastering work. He thought it was substandard.
Mr Habul complained to the Queensland Building Services Authority about it in August 2011. Shortly after that he commenced these proceedings.
His initial complaint to the Tribunal was that plasterboard was bowed between studs. He claimed $45,000 from Mr Jakupovic for costs of rectification. That was more than he paid to have the whole job done.
Mr Jakupovic says it was his company, Moose Plastering Pty Ltd, not him, who contracted to do the plastering. Moose Plastering Pty Ltd has been joined as a respondent to the proceedings.

The Issues for Determination

The parties initially seek simply a determination as to liability. They say they shall endeavour to resolve quantum themselves after that. Perhaps. In any case, at hearing, there were two principal issues for me to determine. First, which respondent was the contracting party for…

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: [2013] QCAT 452
Decision Date

CaseChat Overview and Summary

Omar Habul, a licensed builder, engaged Mustafa Jakupovic, a licensed plasterer, to complete the plastering work for his new home at Drewvale. Mr Jakupovic trades through a company, Moose Plastering Pty Ltd, which was also named as a respondent in the proceedings. After Mr Habul moved into the home, he became dissatisfied with the plastering work and complained to the Queensland Building Services Authority. He then commenced proceedings in the Queensland Civil and Administrative Tribunal. His initial complaint was that the plasterboard was bowed between studs, and he sought $45,000 from Mr Jakupovic for the cost of rectification, which was more than he had paid for the entire job. The issues for determination were whether Moose Plastering Pty Ltd or Mr Jakupovic was the contracting party and whether the plastering work was defective building work.

The Tribunal concluded that Moose Plastering Pty Ltd was the contracting party, not Mr Jakupovic personally. The Tribunal accepted the evidence of Mr Jakupovic over Mr Habul, finding that Moose Plastering Pty Ltd was paid the amount invoiced once and no more. The Tribunal found that the standard of plastering required in the circumstances was a level 4 finish, as described in Australian standard 2589 – 2007. The Tribunal concluded that it was a responsibility of both the builder and the plasterer to ensure a plumb, square, straight, and secure substrate existed before plasterboard was affixed. If the plasterer found the substrate was not such, and the attention of the builder was directed to the defect or defects, responsibility for rectification lay with the builder if the substrate was not remedied, and the plasterer was directed to fix plasterboard regardless.

The Tribunal found that Moose Plastering Pty Ltd was responsible for the defective plastering work in the living room, kitchen, and family room, as the plasterers had not checked for a plumb, square, straight, and secure substrate before plastering or had checked and found defective substrate but had not informed the builder and sought rectification to the substrate before plastering. The Tribunal found that Mr Habul was responsible for the defective framing at the stairwell and the defective framing in the cupboard under the stairs. The Tribunal also found that there was no defect associated with the cornice in the family room or the PVC capping at the stair stringer junction.

The Tribunal concluded that the parties should initially attempt to resolve issues about rectification between themselves. If they were unable to do so, the Tribunal would adjudicate on damages and costs. The matter could not remain with the parties indefinitely, and the Tribunal would make appropriate orders to finalise the matter in the event the parties were unable to resolve the matter between themselves. The final issues may be appropriately dealt with on the papers.

Orders