Hutchins v Parath Ouk Aussie Painterz - [2021] QCAT 312

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hutchins v Parath Ouk Aussie Painterz [2021] QCAT 312

PARTIES: DAVID HUTCHINS

(applicant)

v

PARATH OUK AUSSIE PAINTERZ

(respondent)

APPLICATION NO/S:

BDL240-19

MATTER TYPE:

Building matters

DELIVERED ON:

6 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

1. Parath Ouk trading as Aussie Painterz pay to David Hutchins the sum of $12,286.60 within 21 days of the date of this order

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – no written contract – non-compliance with s 13(2) of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld).

TORTS – NEGLIGENCE – whether builder owed a duty of care – whether homeowner suffered material damage caused by builder’s breach of duty – whether proximate connection between action of builder and damage.

BUILDING DISPUTE – where work performed by unlicensed builder – effect of non-compliance with s 42(1) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether home owner entitled to be reimbursed money paid for building work – where no statutory claim for reasonable remuneration for performing the work.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR TORT – where damages to be assessed – where builder had duty to take reasonable care in performing work – where purpose of damages to restore homeowner to position they would have been in if wrongful acts had not occurred.

Civil liability Act 2003 (Qld) s9, s11, s12, s13, s14

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 68H, s 77, Schedule 1B s 13, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9, s 10

Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75

Thompson v Shen and Kao [2017] QCAT 33
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

David Hutchins commenced an action in July 2018 against Parath Ouk trading as Aussie Painterz in the Minor Civil Dispute jurisdiction of QCAT in the Pine Rivers Magistrate’s Court for defective work undertaken by Mr Ouk in the painting of Mr Hutchins’ driveway. Mr Ouk quoted $4,400.00 to pressure clean, acid wash, prepare and paint Mr Hutchins’ driveway.
On 3 September 2019 this matter was transferred to the QCAT building list and directions were made for this matter to be determined on the papers without an oral hearing.
Mr Ouk has played no part in these proceedings. He has filed no documents and attended no Tribunal events. I am however satisfied that Mr Ouk did receive the notices and directions from the Tribunal as on 1 July 2020, the Tribunal received an email from Mr Ouk.
Mr Ouk’s email informed the Tribunal that he is an undischarged bankrupt and that his bankruptcy commenced…

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: [2021] QCAT 312
Decision Date

CaseChat Overview and Summary

David Hutchins commenced an action against Parath Ouk trading as Aussie Painterz in the Minor Civil Dispute jurisdiction of QCAT in the Pine Rivers Magistrate’s Court. Mr Hutchins alleged defective work had been undertaken by Mr Ouk in the painting of Mr Hutchins’ driveway. Mr Ouk quoted $4,400.00 to pressure clean, acid wash, prepare and paint Mr Hutchins’ driveway. Mr Hutchins complained to the Queensland Building and Construction Commission (the “QBCC”) and an inspection of the works was undertaken. The QBCC report found the work was defective and that Mr Ouk was an unlicensed builder. Mr Hutchins then brought this action for damages for the defective work, and the money paid to Mr Ouk for the work. Mr Ouk has played no part in these proceedings. He has filed no documents and attended no Tribunal events. I am however satisfied that Mr Ouk did receive the notices and directions from the Tribunal as on 1 July 2020, the Tribunal received an email from Mr Ouk. The Tribunal found that there was no written contract for the works that was entered into between the parties. However, the Tribunal found that the work performed by Mr Ouk was defective and that the work breached the duty of care he owed Mr Hutchins to competently undertake the stripping, painting and resealing of the driveway. The Tribunal found Mr Ouk was liable to Mr Hutchins for damages. The Tribunal found that the purpose of damages in tort was to calculate the pecuniary sum which would make good to Mr Hutchins, so far as money can do, the loss which he had suffered. The Tribunal found that the amount Mr Hutchins had outlaid in the restitution of his driveway, calculated above as being $9,166.10 and that this amount fairly represented his loss. The Tribunal found that Mr Ouk, as an unlicensed builder, was disentitled to receive payment for his work, so Mr Hutchins, as a homeowner, was entitled to recover the monies he paid to him. This was an amount of $3,000.00 which must be added to the damages assessed above. The total being $12,166.10. The Tribunal found that Mr Hutchins was entitled to the costs he incurred in these proceedings, being the original QCAT filing fee of $120.50. The total amounts of the restitution cost, the refund amount and the costs of the proceedings was $12,286.60. The Tribunal ordered Parath Ouk trading as Aussie Painterz pay to David Hutchins the sum of $12,286.60 within 21 days of the date of this order.

Orders