Jones v Lewis - [2021] QCAT 119

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Jones & Anor v Lewis [2021] QCAT 119

PARTIES:
DEAN JONES

KIM-MAREE JONES

(applicants)

v

KEELAN LEWIS

(respondent)

APPLICATION NO/S:

BDL326-18

MATTER TYPE:

Building matters

DELIVERED ON:

13 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

Keelan Lewis pay to Dean Jones and Kim-Maree Jones the total amount of thirty-four thousand and sixty-two dollars and ninety cents ($34,062.90) comprising of damages in the amount of $33,724.69 plus $338.20 for costs, within 28 days from the date of this order.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where homeowners engaged builder to renovate kitchen – where builder unlicensed to perform building work – where builder ordered to pay homeowners damages to be assessed – whether builder owed duty of care to homeowners – where homeowners claim damages for defective and incomplete work and for costs

Queensland Building and Construction Commission Act 1991 (Qld), s 4, s 42, s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

Bellgrove v Eldridge (1954) 90 CLR 613

Bryan v Maloney (1995) 182 CLR 609
Cook's Construction P/L v SFS 007.298.633 Pty Ltd (formerly trading as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75
Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49

Robinson v Harman (1848) 1 Ex 850

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

No appearance

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

The applicants engaged the respondent to renovate their kitchen.
The parties signed a handwritten document that identifies the work to be performed by the respondent and specifies the amount of $30,000.00 as being payable by the applicants to the respondent (‘the contract’).[1]
[1]Statement of the applicants filed 23 September 2019, attachment 1.
On 21 February 2018, the respondent removed the existing kitchen and arranged for the installation of cabinets, glass splash back and stone bench tops.
The applicants paid to the respondent the total amount of $19,300.00 on various dates between 22 November 2017 to 15 January 2018, inclusive, for the work performed. The applicants contend that they also paid other amounts to various contractors for work to be done to the kitchen; for example, the amount of $2,000.00 was paid directly to ‘Willis Bros’ for the preparation and installation of ‘stone mason labour’.[2]
[2]Ibid, [52] and see attachment 9.
Before the respondent completed the kitchen renovation work, the applicants contacted the Queensland Building and Construction Commission (‘the QBCC’) for assistance and were advised that the respondent had no record of a licence held with them.
A complaint to the QBCC followed.
On 26 June 2018, the QBCC notified the applicants that their dispute lodged on 9 May 2018 regarding the respondent and the kitchen work performed was not able to be mediated.[3]
[3]Ibid, attachment 19.
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.

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Details

Case: [2021] QCAT 119
Decision Date

CaseChat Overview and Summary

The case of Jones & Anor v Lewis is a matter heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). The applicants, Dean Jones and Kim-Maree Jones, engaged the respondent, Keelan Lewis, to renovate their kitchen. They signed a contract specifying the work to be done and a payment amount of $30,000. The applicants paid the respondent $19,300 for work completed but alleged that the remaining work was defective and incomplete. Lewis was unlicensed to perform building work, which the applicants discovered after contacting the Queensland Building and Construction Commission (QBCC). The applicants applied to QCAT for damages for defective and incomplete work and for relief from any payment to Lewis. The primary issue before QCAT was determining the amount of damages, if any, that Lewis should pay the applicants. QCAT found that Lewis failed to comply with its directions and determined the matter on the papers. QCAT found that Lewis owed a duty of care to the applicants and was liable for any negligence arising from defective work. QCAT allowed the applicants' claims for rectification of defective and incomplete work, totalling $14,424.69, and the cost of a building inspection report, totalling $300. QCAT also awarded the applicants their costs of filing the application, totalling $338.20. QCAT ordered Lewis to pay the applicants the total amount of $34,062.90, comprising damages, the return of the amount paid for work completed, and costs.
In summary, QCAT determined that Lewis must pay the applicants damages for defective and incomplete work and the return of the amount paid for work completed. QCAT also awarded the applicants their costs of filing the application. The total amount payable by Lewis is $34,062.90, to be paid within 28 days of the decision.

Orders