Hamilton v Keys - [2013] QCAT 346

CITATION:

Hamilton v Keys & Anor [2013] QCAT 346

PARTIES:	Dylan Bruce Hamilton (Applicant)
V
Paul Keys Christine Keys (Respondents)

APPLICATION NUMBER:

BDL021-13

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

8 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Application to strike out the respondents counter claim for loss of rent dismissed.

CATCHWORDS:

BUILDING MATTERS - Strike out – whether the Tribunal has jurisdiction to determine the respondents claim for loss of rental as damages – where counter-claim ambiguous in relief sought – where loss if any can be determined at the hearing of the application.

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

The applicant commenced a proceeding to recover money for building work undertaken for the respondents at a house in Moranbah. The total amount of the claim is $25,090.00. Annexure “A” to the application sets out in detail, in the nature of a statement of claim, the basis of the claim for the money owed. The applicant and the respondents entered into a contract for building work for a total amount of $40,000.00 and, it is alleged that only $14,910.00 have been paid.
In response to the claim the respondents filed a counterclaim in which they contend that annexure “A” does not properly set out the agreement that was entered into between the parties. They also further say that the $40,000.00 has been paid but counter claim $16,400.00 loss of rent by way of damages. The loss of rent claim is based on the following allegations of fact:
“A verbal agreement was made as well as the written HIA agreement that an additional $10,000.00 worth of work be performed which was to be included in the value of rent received by the applicant. Under this agreement the applicant received well in excess of $10,000.00 as at this time, between the commencement of the contract works in August 2011 and up until the applicant vacated his rental in June 2012, the unfinished downstairs renovation was rented to another tenant, under agreement, for $1,100.00 per week and the area rented by the applicant would have realized a similar rental term. Therefore the value of the rental received by the applicant was a minimum of $26,400.00 ($1,100.00 x 4 weeks = $4,400.00 x 6 months = $26,400.00) less $10,000.00 value of rent the applicant was entitled to receive under the agreement. This leaves a shortfall of $16,400.00 of rental received by the applicant and owing to the respondents.”
As I read the above, the respondents seem to be saying that the applicant agreed to carry out building work to the value of the accommodation provided rent free. However the basis for calculating the value of the rent has not be set out with any specificity. It is difficult to determine from the material any evidence as to an agreed value of the accommodation on a weekly basis. The basis of calculating the above value of the accommodation seems to be after the event. However, that does not mean that the respondents are not entitled to damages if the applicant did not do what he agreed to do for the accommodation.
On receiving this response the applicant filed an application to strike out the counterclaim on the grounds that it did not disclose a cause of action to which QCAT had jurisdiction. The submissions filed in support together with the application recognises that the Tribunal has broad jurisdiction under section 77 of the Queensland Building Services Authority Act 1991 which includes a power to award damages, restitution and payment of money owed. The applicant contends that the counterclaim of the respondents is in the nature of restitution but any damages awarded for restitution must be confined to building work. Here, the respondents say that the claim for loss of rent is as a result of the agreement reached that the applicant would reside in the premises, rent free, provided he carried out the agreed building work. Therefore, the damages do not relate to building work.
Although the applicant concedes that there was an agreement that he would reside in the premises for $1.00 per week, effectively rent free, he contends that he carried out the building work he agreed to do and therefore it is in issue that the applicant has not performed his obligations under the contract. This issue will be determined by the Tribunal at the upcoming hearing.
The statements of evidence filed in the Tribunal disclose there is a dispute of fact as to what occurred during the renovation works, both upstairs and downstairs. It is also disputed as to whether the applicant complied with his obligations under the agreement to do the work for which he received the benefit of the accommodation supplied rent free.
Assuming that the respondents establish that the applicant did not perform his obligations under the contract which entitled him to rent free accommodation then the respondents would be entitled to damages flowing from that breach. The question then for the Tribunal to decide is whether the damages sought by the respondent is a loss which arises naturally from any breach by the applicant or may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made as the probable result of any breach.[1]
[1] Hadley v Baxendale (1854) 9 EX.341.
I am not satisfied that a claim for loss of rent by way of damages is not recoverable although I do entertain some doubts as to whether it would be a recoverable loss in the way it is formulated above. By way of an example, if a building contract contemplates that work will be completed by a certain date thereby making the property available for the rental market, any delay in completion could result in a claim for loss of rent which could be recoverable by the home owner if the builders breach is established.
Ultimately I am of the view that the question of whether the type of loss claimed by the respondents flowing from the applicant’s breach, if any, will be best resolved at the hearing of the application. This will depend on findings of facts made as to the agreement entered into between the parties, whether the loss was in the contemplation of the parties, and then the question of whether the Tribunal has jurisdiction to award those damages, if any.
I should also say that the QCAT Act does require the Tribunal to act with as little formality and technicality as a proper consideration of the matter permits. This is particularly so in circumstances where parties are not legally represented. The Tribunal must also act fairly and according to the substantial merits of the case. Self represented parties must be given some latitude in formulating their claims that might not otherwise comply with the strict practices and procedures adopted in the courts. Here the respondents are saying, in a general way, they did not get what they bargained for and they should not be penalised, in a summary way, simply because their claim for damages is somewhat ambiguous. If the applicant is correct in his contentions then this can be quickly disposed of at the hearing once the Tribunal explains to the respondents the difficulty, if any, with their claim.
I therefore propose to dismiss the application to strike out as I am satisfied that a cause of action has been set out in the statement above although the question of loss, if any breach is established, will need to be determined by the Tribunal and it may not necessarily relate to the loss of rent as claimed above.