Landman v Lauder

[2018] QCAT 395

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Landman v Lauder & Anor [2018] QCAT 395

PARTIES:

LOUIS EMMANUEL LANDMAN
and
SONJA LANDMAN
(applicant)

v

BRUCE ARTHUR LAUDER t/as LAUDER & SONS
and
KEVIN JAMES KELLY

(respondent)

APPLICATION NO/S:

BDL059-16

MATTER TYPE:

Building matters

DELIVERED ON:

30 October 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The application is dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – building and construction – where claim by subsequent home buyer – where claim based in pure negligence – where lack of evidence to establish duty of care, defective building work sufficient to establish breach of duty, causation or value of alleged defective work

Briginshaw v Briginshaw (1938) 60 CLR 336
Bryan v Maloney (1995) 182 CLR 609

Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

1. Louis and Sonja Landman bought a home they say had defects including bathroom drainage, brickwork articulation and termite parching. They have applied for orders against Bruce Arthur Lauder and Kevin James Kelly, who performed some work on the home. 

   What is the basis of the claim?

2. Because Mr and Mrs Landman did not contract with either Mr Lauder or Mr Kelly, their claim would need to be based in negligence based on a duty of care owed by builders to subsequent home owners.[1]   

   [1]Bryan v Maloney (1995) 182 CLR 609.

3. As the claim is based in pure negligence, Mr and Mrs Landman must establish that they were owed a duty of care, the scope of that duty, a breach of that duty, loss caused by that breach of duty and proof of that loss. 

   Is there sufficient evidence to support the claim?

4. The difficulty for Mr and Mrs Landman is their lack of evidence to support the essential elements of their claim. Because it is unclear when the involvement of

   
   

   Mr Lauder and Mr Kelly begins and ends, there is no temporal connection to establish a duty of care owed by either.

5. While Mr Kelly remained as the nominal builder, his involvement appeared to end at the frame stage.[2] No evidence was adduced of any defects at that stage or that any of the work complained of was performed by Mr Kelly or Mr Lauder.

   [2]Letter QBCC to Louis Landman dated 16 April 2015.

6. Even if Mr and Mrs Landman could establish that Mr Kelly or Mr Lauder owed a duty of care, they have not adduced evidence of defective building work sufficient to establish a breach of that duty. No independent evidence was adduced that the work is currently defective - the work was completed on 18 February 2010 and Mr and Mrs Landman’s purchase of the property settled on 25 November 2014.

7. At most, Mr…