Judd v McPhail

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.