Kroll v Kovac - [2024] QCAT 143

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kroll v Kovac [2024] QCAT 143

PARTIES:

NEIL KROLL

(applicant)

v

ZVONIMIR KOVAC

(respondent)

APPLICATION NO/S:

BDL179-22

MATTER TYPE:

Building matters

DELIVERED ON:

10 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

The Tribunal directs Zvonimir Kovac pay Neil Kroll the sum of $3,654 by 4:00 pm on 10 June 2024.

CATCHWORDS

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF PAINTING WORK – REMEDIES FOR BREACH OF CONTRACT – IMPLIED TERMS AND WARANTIES – DAMAGES – where there was no formal contract in writing signed by the parties – where work is defective – where the owner was entitled to recover for damage caused by the building contractor for defective work

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Atkinson and Anor v Van Uden [2020] QCAT 259

Cameron v Guise [2019] QCAT 220
Ghama v Crew & Anor [2020] QCAT 149
Skinner v FTP Contracting Pty Ltd & Anor (No 2) [2020] QCATA 12

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

Background

The respondent, Mr Kovac, carried out painting of the front facing section of the applicant, Mr Kroll’s house. The email quote indicates it was to paint the roof tiles, fretwork, gutters/facer, eves, post, handrails, a screen door and the letter box for the applicant homeowner, Mr Kroll. The contract price as per an email dated 22 April 2020 was $1,850.00, requested to be paid in cash with a $1,000 deposit and $850 on completion.
Mr Kroll discussed the work with Mr Kovac before agreeing to him undertaking the work and believed him to be a professional painter as per his business card. Mr Kroll states Mr Kovac told him he had painted roofs previously and would prep the roof and apply a primer and special membrane paint, and guaranteed it would last 10-15 years, commenting it would probably last 20 years.[1]
[1]Applicant’s written statement dated 3 November 2022.
Work was completed on or around 27 May 2020 and Mr Kroll paid the $1,850 in full.
As is unfortunately not uncommon, the parties adopted a somewhat relaxed approach to the formation of the agreement for the performance of the building work. No written contract was entered into by the parties and the contract is limited to Mr Kovac’s email quote for the work on 22 April 2020 and oral conversations.
Mr Kroll’s claim against Mr Kovac is for defective work as he asserts the paint started to peel in large pieces after 6 months and he first contacted Mr Kovac by phone in January 2021. At that time Mr Kovac indicated he would repaint the roof, but never attended to rectify the work.
There is evidence provided by the applicant that he contacted the respondent Mr…

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 Kroll v Kovac

Details

AGLC: Kroll v Kovac [2024] QCAT 143
Case: [2024] QCAT 143
Decision Date: 10 April 2024

CaseChat Overview and Summary

Neil Kroll brought an action against Zvonimir Kovac in the Civil and Administrative Tribunal of New South Wales, claiming compensation for defective painting work conducted by Kovac under a verbal agreement. Kroll alleged that Kovac, a painter and decorator, performed substandard work on his property, resulting in damages that required rectification. Kovac admitted to performing the painting work but contested the quality and the extent of the damages claimed. The primary legal issue for the Tribunal was whether an enforceable contract existed despite the absence of a written agreement and, if so, whether Kovac breached the contract by performing the work defectively. Furthermore, the Tribunal had to determine the appropriate measure of damages, if any, that Kroll could claim from Kovac.

The Tribunal found that although there was no formal written contract, the parties' conduct and communications established an implied agreement for the painting work. The Tribunal relied on the principle that oral agreements can be just as binding as written ones if the circumstances demonstrate an intention to create legal relations. The Tribunal held that Kovac breached the contract by failing to perform the work to the required standard, as evidenced by the poor quality of the painting which necessitated further work to rectify. The measure of damages was assessed based on the additional costs incurred by Kroll to have the work redone properly. The Tribunal concluded that the amount claimed by Kroll was reasonable and proportionate to the defective work performed by Kovac.

Accordingly, the Tribunal ruled in favour of Kroll and ordered Kovac to compensate Kroll for the defective work. Specifically, the Tribunal directed Kovac to pay Kroll the sum of $3,654 by 4:00 pm on 10 June 2024. The Tribunal considered this amount to be a fair reflection of the costs incurred by Kroll to rectify the substandard work performed by Kovac. This decision underscores the enforceability of oral contracts in appropriate circumstances and the obligation of contractors to perform their work to a satisfactory standard.

Orders

Orders of the court

The Tribunal directs Zvonimir Kovac pay Neil Kroll the sum of $3,654 by 4:00 pm on 10 June 2024.

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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