Keinath v Fleming - [2024] QCAT 81

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Keinath v Fleming [2024] QCAT 81

PARTIES:

CHRISTA LORE KEINATH

(applicant)

v

JEFFREY WILLIAM FLEMING

(respondent)

APPLICATION NO/S:

BDL079-22

MATTER TYPE:

Building matters

DELIVERED ON:

15 February 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Younger

ORDERS:

1.     Jeffrey William Fleming must pay to Christa Lore Keinath within 28 days of this decision:

(a)     Damages of $19,610; and

(b)     Costs of $358.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – where domestic building contract does not comply with Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) – where no formal contract for building work – whether a breach of contract can be established

REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURES OF – TORTS – NEGLIGENCE – ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHERS – whether builder owed duty of care to homeowner – defective work – where work is defective – where builder becomes unlicensed after work performed – assessment of damages – whether owner entitled to recover money paid to builder under the contract

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – where failure by respondent to comply with tribunal directions – where applicant entitled to final decision – whether costs should be awarded in favour of applicant

Queensland Building and Construction Commission Act1991 (Qld), s 32, s 77, Schedule 1B, Schedule 2

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 48

Admiralty Commissioners v SS Valeria [1922] AC 242
Atkinson and Anor v Van Uden [2020] QCAT 259

Barbi v Brewer [2013] QCAT 348

Bryan v Moloney (1995) 182 CLR 609
Cameron v Guise [2019] QCAT 220
Ghama v Crew & Anor [2020] QCAT 149
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388
Robinson v Harman (1848) 1 Ex 850; 154 ER 363
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
Zhang v Todd [2019] QCAT 208

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Christa Keinath, an owner-builder, had an informal agreement with Jeffrey Fleming, then a licensed builder, to construct a concrete slab and conduct associated earthworks (‘the building work’) at her residential property. Upon Ms Keinath paying a deposit, Mr Fleming commenced the building work. At completion, the price of the work was varied, and full payment was made by Ms Keinath to Mr Fleming. Ms Keinath then noticed certain defects, which she notified Mr Fleming of. She arranged for third party advice and reported the matter to the Queensland Building and Construction Commission (‘QBCC’).
The QBCC inspected the work and found a number of defects and issued a Direction to Rectify and/or Complete to Mr Fleming. 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.

Continue reading Keinath v Fleming

Details

AGLC: Keinath v Fleming [2024] QCAT 81
Case: [2024] QCAT 81
Decision Date: 15 February 2024

CaseChat Overview and Summary

The case of Keinath v Fleming involved a dispute between Christa Lore Keinath, the plaintiff, and Jeffrey William Fleming, the defendant, over a domestic building contract. The central issue was whether a breach of contract could be established where the contract did not adhere to Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld). Furthermore, the case also addressed whether the builder owed a duty of care to the homeowner in light of the defective work, and if the homeowner could recover the money paid to the builder under the contract. The plaintiff sought damages for the defective work, and the defendant contested liability and the quantum of damages. The court was also required to consider whether costs should be awarded to the plaintiff due to the defendant's failure to comply with tribunal directions.

The legal issues that the court needed to resolve included whether the plaintiff could establish a breach of contract in the absence of a formal written agreement and whether the defendant's failure to comply with tribunal directions warranted an award of costs to the plaintiff. The court had to examine if a duty of care was owed by the defendant to the plaintiff due to the defective work and assess the measure of damages, considering the builder became unlicensed post-completion of the work. The court had to balance the statutory requirements of the Queensland Building and Construction Commission Act 1991 (Qld) with the common law principles of contract and tort.

The court determined that the absence of a formal written contract did not preclude the establishment of a contractual relationship between the parties. It found that the defendant's failure to comply with tribunal directions warranted an award of costs in favour of the plaintiff. The court held that the defendant owed a duty of care to the plaintiff due to the defective work and assessed the damages based on the contract price. The court awarded damages of $19,610 and costs of $358 to the plaintiff, requiring the defendant to pay these amounts within 28 days of the decision.

The orders of the court mandated that the defendant pay the plaintiff damages of $19,610 and costs of $358 within 28 days of the decision. This judgment underscored the importance of compliance with statutory requirements in building contracts and the implications of a builder's failure to adhere to tribunal directions. The court's decision reinforced the legal principle that a formal written contract is not a prerequisite to establishing a breach of contract, provided there is a clear agreement between the parties.

Orders

Orders of the court

1. Jeffrey William Fleming must pay to Christa Lore Keinath within 28 days of this decision:

(a) Damages of $19,610; and

(b) Costs of $358.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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