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Holley v Knezovic

Holley v Knezovic

Case [2021] QCAT 422 30 November 2021

Building and Construction Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Holley v Knezovic [2021] QCAT 422

PARTIES:

LUKE HOLLEY

(applicant)

V

ANTUN KNEZOVIC

(respondent)

APPLICATION NO/S:

BDL156-19

MATTER TYPE:

Building matters

DELIVERED ON:

30 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The application is dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHERS – building and construction - whether subsequent homeowner owed a duty of care by owner builder – whether purchaser vulnerable where pre-purchase building inspection identified defects - effect of non-compliance with s 47 of the Queensland Building and Construction Commission Act 1991 (Qld) – whether subsequent owner entitled to be reimbursed money paid for building work

Aquatec-Maxcon Pty Ltd v Barwon Region Water Authority (No 2) [2006] VSC 117
Brookfield Multiplex Ltd v Owners Corporation Strata Plan [2014] HCA 36
Bryan v Maloney (1995) 182 CLR 609
Canavan v Sutton [2020] QCAT 374
Donoghue v Stevenson [1932] AC 562
Gilchrist v Ivanovic [2016] QCAT 56
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Hawkins v Clayton (1988) 164 CLR 539
Landman v Lauder & Anor [2018] QCAT 395
March v E and MH Stramare Pty Ltd (1991) 171 CLR 506
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2014] QCA 233
Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207
Paul Bongioletti Homes Pty Ltd v North [2012] QCATA 175
Perre v Apand Pty Limited (1999) 198 CLR 180
Sullivan v Moody (2001) 207 CLR 562
Tracey v Olindaridge Pty Ltd [2013] QCATA 048
Ultramares Corporation v Touche (1931) 174 NE 441
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515

Building Act 1975 (Qld), part 5
Civil Liability Act 2003 (Qld), s 9
Limitation of Actions Act 1974 (Qld), s 10
Queensland Building and Construction Commission Act 1991 (Qld), s 43D, s 43E, s 47, s 77(2), schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(3), 32

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

What is this application about?

Mr Knezovic constructed a two-storey home as an owner builder. The issue in this application is whether he is responsible to Mr Holley, a subsequent owner of the home, for loss arising from defective building works.
By an application for a domestic building dispute filed 6 June 2019,[1] Mr Holley asks the tribunal to order that Mr Knezovic pay him damages in the sum of $104,022 and his costs of the application.
[1]As amended, with leave.
Mr Holley and Mr Knezovic were never parties to a contract and Mr Holley’s claim lies only in negligence. Therefore, to succeed in his application, Mr Holley must establish that Mr Knezovic owes him a duty of care, what the scope of that duty is, that Mr Knezovic breached that duty, the loss caused…

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 Holley v Knezovic

Details

AGLC: Holley v Knezovic [2021] QCAT 422
Case: [2021] QCAT 422
Decision Date

CaseChat Overview and Summary

The applicant, Luke Holley, seeks damages for defective building work done by the respondent, Antun Knezovic, as an owner builder. The matter was heard and determined on the papers. The application is dismissed. The tribunal is satisfied that the matter is a domestic building dispute, over which it has jurisdiction, and that it is not time-barred. The applicant must establish that the respondent owed him a duty of care, what the scope of that duty is, that the respondent breached that duty, the loss caused by the breach and prove the loss. The tribunal is not satisfied that the respondent owed the applicant a duty of care. The applicant was protected by statutory warranties or insurance from the intermediate owners, not the respondent. Further, the applicant had actual knowledge of the defects when he purchased the property and, therefore, was not vulnerable to harm from defective building work by the respondent. These factors weigh heavily against a finding that the respondent owed the applicant a duty of care.

Orders