Judd v McPhail - [2022] QCAT 125

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Judd v McPhail [2022] QCAT 125

PARTIES:

KYLIE JUDD

(applicant)

v

SAMUEL MCPHAIL

(respondent)

APPLICATION NO/S:

BDL114-20

MATTER TYPE:

Building matters

DELIVERED ON:

11 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Samuel McPhail must pay to Kylie Judd $33,173.80 within 28 days of the date of this decision.

2. Samuel McPhail must pay to Kylie Judd costs fixed in the amount of $345.80 within 28 days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – consideration of the requirements of domestic building contract and regulated contract pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) – finding that the domestic building contract is non-compliant and is of no effect.

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where the respondent builder failed to complete the construction of a retaining wall – where the constructed retaining wall encroached on an existing easement – finding that the respondent builder was negligent – consideration of damages.

RESTITUTION – GENERAL PRINCIPLES – where the respondent builder received payments for building work not performed – consideration of unjust enrichment –– finding that the applicant is entitled to relief in restitution.

Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) sch 1B, s 3(1), s 5, s 13(2), s 13(5)

Brookfield Multiplex Ltd v Owners Corp Strata Plan 61288 [2014] HCA 36

Bryan v Maloney (1995) 182 CLR 609
Campbelltown City Council v Mackay (1989) 15 NSWLR 501
Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) 10 BCL 63

Olindaridge Pty Ltd v Tracey [2016] QCATA 23

APPEARANCES:

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

Ms Judd engaged Mr McPhail to build a retaining wall at her home. She says that the building work undertaken by Mr McPhail is defective. Ms Judd has commenced these proceedings claiming damages for the cost of rectifying the defective building work.
In the originating application, Ms Judd says:
(a)Mr McPhail built Ms Judd’s home in 2017/2018;
(b)During the course of the construction of the home, Mr McPhail was requested by Ms Judd to provide a quote for the construction of a retaining wall at the property;
(c)Mr McPhail was subsequently instructed by Ms Judd to undertake the construction of the retaining wall;
(d)When Ms Judd moved in to the home the retaining wall was approximately 75% complete;
(e)Approximately 11 months after Ms Judd moved in to the home Ms Judd made enquiries with Mr McPhail as to when the retaining wall would be completed;
(f)After some period of time it became apparent that Mr McPhail was not intending to complete the wall and had in fact relocated to Townsville;
(g)Mr McPhail offered to pay…

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 Judd v McPhail

Details

AGLC: Judd v McPhail [2022] QCAT 125
Case: [2022] QCAT 125
Decision Date

CaseChat Overview and Summary

Kylie Judd brought an application against Samuel McPhail, a building contractor, seeking damages for the cost of rectifying defective building work. The Tribunal found that the contract between the parties was not enforceable as it did not comply with the requirements of the Queensland Building and Construction Commission Act 1991 (Qld). The Tribunal then considered whether a claim in negligence against Mr McPhail could succeed. The Tribunal found that the relationship between a builder and a homeowner is a special category of relationship whereby a duty of care is owed by the builder to the homeowner. The Tribunal found that Ms Judd was vulnerable in the sense that she falls into the class of home owners generally unaware of the need for, and how to obtain, adequate contractual protections that were against structural weakness and who expect building work to be undertaken without substantial defects. The Tribunal found that Mr McPhail failed to carry out the construction of the retaining wall so as to avoid a foreseeable and not insignificant risk of harm to Ms Judd. The Tribunal ordered that Mr McPhail pay to Ms Judd $33,173.80 within 28 days of the date of this decision and pay to Ms Judd costs fixed in the amount of $345.80 within 28 days of the date of this decision.

Orders