JW & Mm Haylock Pty Ltd v Bakker & Kramer - [2014] QCAT 120

CITATION:

JW & MM Haylock Pty Ltd v Bakker & Kramer [2014] QCAT 120

PARTIES:	JW & MM Haylock Pty Ltd (Applicant)
V
Mr Jan Bakker and Ms Anna Kramer (Respondent)

APPLICATION NUMBER:

BDL266-11

MATTER TYPE:

Building matters

HEARING DATE:

28 January 2014

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Bakker and Ms Kramer are ordered to pay to JW & MM Haylock Pty Ltd the amount of $5,149.75 within 14 days of today.

CATCHWORDS:

BUILDING DISPUTE – swimming pool - wrongful termination of contract – whether subject to Anshun Estoppel - calculation of damages

Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Building and Construction Commission Regulations 2003 (Qld)

Ms Anna Kramer and Anor v JW & MM Haylock Pty Ltd [2011] QCAT 296

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Wayne Haylock, director appeared for JW & MM Haylock Pty Ltd

RESPONDENT:

Mr Bakker and Ms Kramer were self-represented

REASONS FOR DECISION

Introduction

JW & MM Haylock Pty Ltd trades as Burleigh Pools as a pool builder and was engaged by Mr Bakker and Ms Kramer to build a pool on their land at 10 Barton Street, Reedy Creek for the amount of $24,890.00 under a contract dated 1 September 2007[1]. Mr Bakker and Ms Kramer terminated the contract when the pool shell was completed due to their belief that it was at an incorrect height. They made application to the Tribunal claiming that Burleigh Pools failed to carry out the works in an appropriate and skilful way and sought damages in the amount of $21,400.05 for the money paid to Burleigh Pools of $17,421.00 and the amount of $3,983.05 paid to have the pool removed. That application[2] was dismissed on the ground that Mr Bakker and Ms Kramer were not entitled to terminate the contract.
[1]Exhibit 7.
[2]Ms Anna Kramer and Anor v JW & MM Haylock Pty Ltd [2011] QCAT 296.
Burleigh Pools made this application seeking damages due to Mr Bakker and Ms Kramer not being entitled to terminate the contract. The claim was for:-
a)        Excavation
Cancellation of excavation due to
owners not showing up
(incl. GST plus 20%)  $1,161.00
Extra rock excavation as invoiced
(incl. GST plus 20%)  6,597.00
Less contract allowance  2,000.00
$5,758.00
Interest from 14/11/07 to 10/08/12  6,388.00
Sub-Total  $12,146.00
b)        Loss of profit due to cancellation
of contract  1,489.00  Interest from 23/11/07 to 10/08/12  1,628.00
Sub-total  $ 3,117.00

c)Filing costs $ 250.00

Total $15,513.00

ANSHUN ESTOPPEL

Mr Bakker and Ms Kramer have raised the question of whether an Anshun Estoppel[3] applies in relation to the application made by Burleigh Pools on the basis that the claim for damages should have been made at the time of the first application to the Tribunal. The Tribunal notes that Burleigh Pools was the respondent in that application and the decision was made in their favour.…

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: [2014] QCAT 120
Decision Date

CaseChat Overview and Summary

JW & MM Haylock Pty Ltd, trading as Burleigh Pools, brought this action against Mr Jan Bakker and Ms Anna Kramer seeking damages for wrongful termination of a contract for the construction of a swimming pool at Reedy Creek. The original contract was dated 1 September 2007, with a total price of $24,890.00. The respondents terminated the contract after the pool shell was completed, alleging that the pool was at an incorrect height. Burleigh Pools sought damages for the costs incurred due to the wrongful termination, including excavation costs, loss of profit, and interest.

The primary legal issues in the case were whether Anshun Estoppel applied to prevent Burleigh Pools from claiming damages after the initial application was dismissed, and the calculation of the damages Burleigh Pools was entitled to. The Tribunal considered whether the doctrine of Anshun Estoppel prevented Burleigh Pools from claiming damages after the dismissal of the respondents' application, and concluded that it did not. The Tribunal also examined the invoices provided by Burleigh Pools and accepted the sub-contractor invoices supporting the claimed amounts. The Tribunal found that the respondents were liable for the costs incurred due to their failure to attend the site or have an authorized agent sign the mark out form. The Tribunal calculated the damages due to Burleigh Pools, considering the costs to date, loss of profit, and interest. The Tribunal found that the total damages owed to Burleigh Pools were $5,149.75.

The Tribunal ordered Mr Bakker and Ms Kramer to pay Burleigh Pools the amount of $5,149.75 within 14 days of the decision. The Tribunal's decision provides guidance on the application of Anshun Estoppel and the calculation of damages in building disputes under Queensland law.

Orders