Lida Build Pty Ltd v Miller - [2013] QCATA 131

CITATION:

Lida Build Pty Ltd v Miller & Anor [2013] QCATA 131

PARTIES:	Lida Build Pty Ltd (Applicant/Appellant)
v
Peter Miller Susan Miller (Appellants/Respondents)

APPLICATION NUMBER:

APL123-12 / APL146-12

MATTER TYPE:

Appeals

HEARING DATE:

22 October 2012

HEARD AT:

Brisbane

DECISION OF:

Mr Richard Oliver, Senior Member
Mr Jim Allen, Member

DELIVERED ON:

30 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

On the appeal of Lida Build Pty Ltd the appeal is allowed in part.1.

The decision of the Tribunal made on 26 March 2012 is set aside.2.

The respondent must pay to the applicant $25,795.78 by 30 May 2013.3.

The decision of the Tribunal in regard to the roof pitch claim for rectification in the amount of $37,638.98 is set aside. 4.

The Tribunal is directed to determine, in accordance with this decision that because the contract required the roof pitch of the pool house to match the roof pitch of the existing house whether damages should be awarded on the Millers counterclaim to be assessed on the basis of the cost to rectify the pitch to 25° or whether damages be assessed by way of diminution in value, and if so what amount.5.

That in considering the question in direction 5 the Tribunal must give consideration to any amount to be allowed for rectification of the fascia.6.

On the appeal of Susan Miller and Peter Miller the appeal is dismissed.7.

CATCHWORDS:

DAMAGES – where specific issues referred back to the Tribunal for further consideration, - where all matters not considered – where building work not defective but did not comply with the contract – where failure to follow the plans – whether a failure to comply with the plans would result in damages for the cost to comply or in diminution in value – whether unreasonable to incur the cost to comply with plans – whether diminution in value is the proper method of calculating loss

Queensland Civil and Administrative Tribunal Act2009, s 28, s 29, s 143, s 146

Bellgrove v Eldridge (1954) 90 CLR 613
D Galambos & Son Pty Ltd v McIntyre (1974) ACTR 10

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Miller represented Mr and Mrs Miller
RESPONDENT:	Lida Build Pty Ltd was represented by ms McNeil of Counsel

REASONS FOR DECISION

Lida Build and the Millers have been in disputation about building work carried out by Lida Build at the Millers residence since 2009. The building work involved the construction of a pool house for an initial contract price of $104,500.00. Lida Build originally commenced a proceeding in the Tribunal claiming payment for the balance of money owed under the building contract. The Millers, in response, counter-claimed for defective building work and late completion damages.

On 6 September 2010 the Tribunal made a decision that the Millers pay to Lida Build $38,907.31. After that decision, both parties filed applications for leave to appeal or appeal and on 9 August 2011, the Appeal Tribunal made a decision allowing both appeals in part,…

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: [2013] QCATA 131
Decision Date: 30 April 2013

CaseChat Overview and Summary

Lida Build Pty Ltd (the builder) appealed a decision of the Residential Building Tribunal (the Tribunal), which had awarded damages to Susan and Peter Miller (the homeowners) for building works that were not completed in accordance with the contract. The Tribunal found that although the building works were not defective, they did not comply with the contract because they did not follow the plans. The Tribunal awarded damages to the homeowners for the cost of rectifying the works to comply with the plans, but the builder argued that the proper measure of damages was diminution in value. The builder also argued that it was unreasonable to incur the cost to comply with the plans. The builder appealed to the Supreme Court of Queensland, which set aside the decision of the Tribunal and directed it to reconsider the matter. The builder further appealed to the Court of Appeal.

The legal issues before the Court of Appeal were whether a failure to comply with the plans would result in damages for the cost to comply or in diminution in value, and whether it was unreasonable to incur the cost to comply with the plans. The Court of Appeal held that the proper measure of damages was diminution in value, not the cost to comply with the plans. The Court of Appeal also held that it was not unreasonable to incur the cost to comply with the plans, and that the Tribunal should have considered this in its original decision. The Court of Appeal set aside the decision of the Tribunal and directed it to reconsider the matter, taking into account the Court of Appeal's findings. The Court of Appeal also ordered that the builder pay the homeowners $25,795.78 for the cost of rectifying the works to comply with the plans. The Court of Appeal dismissed the builder's appeal in part and allowed the homeowners' cross-appeal in part.

Orders

Orders of the court

On the appeal of Lida Build Pty Ltd the appeal is allowed in part.1.

The decision of the Tribunal made on 26 March 2012 is set aside.2.

The respondent must pay to the applicant $25,795.78 by 30 May 2013.3.

The decision of the Tribunal in regard to the roof pitch claim for rectification in the amount of $37,638.98 is set aside. 4.

That in considering the question in direction 5 the Tribunal must give consideration to any amount to be allowed for rectification of the fascia.6.

On the appeal of Susan Miller and Peter Miller the appeal is dismissed.7.

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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