Harding v Raymond - [2024] QCAT 407

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Harding v Raymond [2024] QCAT 407

PARTIES:

KIMBERLEY HARDING

(applicant)

v

BRETT MICHAEL RAYMOND

(respondent)

APPLICATION NO/S:

BDL187-23

MATTER TYPE:

Building matters

DELIVERED ON:

19 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

Brett Michael Raymond must pay Kimberley Harding the amount of $39,280.75 by 19 November 2024.

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – GENERALLY – where concreting work was defective – contractor is liable in damages for the defective work

BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – PETITION AND SEQUESTRATION ORDER – EFFECT OF BANKRUPTCY ON PROPERTY AND PROCEEDINGS – ACTIONS BY AND AGAINST BANKRUPT – STAY OF PROCEEDINGS AGAINST BANKRUPT AFTER PRESENTATION OF PETITION – IN RESPECT OF PROVABLE DEBT – where concreting contractor became bankrupt after work performed – whether an action for damages for negligence is a provable debt – not a provable debt and action could be pursued against the bankrupt contractor

Bankruptcy Act 1966 (Cth), s 5, s 58, s 82, s 153

Limitation of Actions Act 1974 (Qld), s 10(4)
Queensland Building and Construction Commission Act 1991 (Qld), s 67WC, s 67WD, s 72, s 77, schedule 1B, schedule 2 (Dictionary)
Queensland Building and Construction Commission Regulation 2018 (Qld), s 28

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 130

Benson v Legg [2020] QCAT 270

Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234

Leonard v Pollock [2012] WASCA 108

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

The Applicant, Ms Harding, seeks an order from the Tribunal for payment of compensation by the Respondent, Mr Raymond, concerning some concreting work that he carried out at Ms Harding’s new home. She contends that the concreting work was defective and negligent. Mr Raymond has not provided any response to Ms Harding’s claim, despite being the given the opportunity, and directed, to do so by the Tribunal.
Ms Harding’s application to the Tribunal is based on the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). I will analyse the basis of the application of that Act below.

Chronology of facts

A summary of the key facts can be set out by way of chronology:
(a)30 March 2022. Mr Raymond provided Ms Harding with a quote for the concreting work to be done at her new home in the amount of $17,400. Ms Harding accepted the quote, which created a contract under the common law. However, as Senior Member Brown found in an early interlocutory decision[1] in this matter, the evidence as it then was (and as it now is) tended to indicate that the agreement did not meet the requirements of schedule 1B of the QBCC Act and was therefore of no effect.[2]
[1]Dated 9 April 2024, at [5].
[2]Since the price in the quote for the…

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 Harding v Raymond

Details

AGLC: Harding v Raymond [2024] QCAT 407
Case: [2024] QCAT 407
Decision Date: 19 September 2024

CaseChat Overview and Summary

The case of Harding v Raymond involved a dispute over defective concreting work, with Kimberley Harding suing Brett Michael Raymond, a concreting contractor, for damages. The matter was heard in a court that had the jurisdiction to hear claims for negligence and issues relating to bankruptcy. The central issue was whether the contractor's bankruptcy could affect the pursuit of a damages claim for the defective work. Specifically, the court had to determine if the action for damages was a provable debt under the Bankruptcy Act and if the bankruptcy stay could prevent the plaintiff from pursuing the claim.

The court considered whether the damages for the defective work constituted a provable debt. It was established that the contractor had become bankrupt after performing the work but before the defects were discovered. The court had to decide if the damages claim was a provable debt, which would mean the action could be pursued against the bankrupt contractor. The court concluded that the damages claim was not a provable debt under the Bankruptcy Act and that the bankruptcy did not preclude the plaintiff from pursuing her claim. The court held that since the damages were for a breach of contract rather than a debt owed to a creditor, it was not a provable debt. Consequently, the plaintiff could continue with her action against the bankrupt contractor.

The court's reasoning was grounded in the distinction between debts and damages claims under the Bankruptcy Act. The court found that the damages for defective work were not debts owed to creditors but rather compensation for a breach of contract. Thus, the bankruptcy did not stay the proceedings for damages. The court ordered that Brett Michael Raymond must pay Kimberley Harding the amount of $39,280.75 by 19 November 2024. This decision allows the plaintiff to recover the damages despite the contractor's bankruptcy.

Orders

Orders of the court

Brett Michael Raymond must pay Kimberley Harding the amount of $39,280.75 by 19 November 2024.

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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