Lida Build Pty Ltd v Miller - [2014] QCAT 129

CITATION:

Lida Build Pty Ltd v Miller [2014] QCAT 129

PARTIES:	Lida Build Pty Ltd (Applicant)
v
Peter Miller and Susan Miller (Respondent)

APPLICATION NUMBER:

BD314-09

MATTER TYPE:

Building matters

HEARING DATE:

20 March 2014

HEARD AT:

Brisbane

DECISION OF:

Member Cotterell

DELIVERED ON:

7 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Peter Miller and Susan Miller shall pay Lida Build Pty Ltd the sum of $31,238.98.

2. Peter Miller and Susan Miller shall pay Lida Build Pty Ltd interest on the sum of $31,238.98 at the rate of 14.98 per cent payable from the date of this Order until and including the day the amount is paid.

3. Lida Build Pty Ltd shall allow Peter Miller and Susan Miller a deduction from the amount to be paid to it for interest on the sum of $4,450.00 at the rate of 14.98 per cent payable from the date of this Order until and including the day the amount is paid.

CATCHWORDS:

Damages – where specific issues referred back to the Tribunal for further consideration – 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 Act 2009 s 146

Bellgrove v Eldridge (1954) 90 CLR 613
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272 at 286
Willshee v Westcourt Ltd [2009] WASCA 87
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance & Ors [2007] NSWCA 253 Ruxley Electronics and Construction Ltd v Forsyth [1994] 1 WLR 650 at 655; [1994] 3 All ER 801 at 806 followed
D Galambos & Son Pty Ltd v McIntyre (1974) ACTR 10
The Commonwealth v Amann Aviation Pty Ltd [1991] HCA54; (1991) 174 CLR 64
Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361

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 Pty Ltd (Lida Build) and the Peter and Susan Miller (the Millers) have been in disputation about issues arising from 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 plus materials supplied by the Millers. 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.
This Tribunal delivered a decision on 6 September 2010, which…

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 129
Decision Date

CaseChat Overview and Summary

Lida Build Pty Ltd (Applicant) has brought this proceeding against Peter Miller and Susan Miller (Respondents) in the Queensland Civil and Administrative Tribunal (QCAT). Lida Build Pty Ltd 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. This is the latest in a series of hearings to determine the issues arising from building work carried out by Lida Build at the Millers residence. The Respondents are now required to pay Lida Build Pty Ltd $31,238.98 and interest at the rate of 14.98 per cent. The legal issues for the Tribunal to determine were whether the Millers were entitled to damages on the basis of the cost to rectify the pitch of the pool house roof or whether damages should be assessed by way of diminution in value. The Tribunal found that the building was substantially in accordance with the contract and Lida Build’s failure to abide by the contract was not a serious and significant breach. The Tribunal found that it would be unreasonable to carry out the works at a cost which was wholly disproportionate to the benefit to be achieved. The Tribunal awarded the Millers nominal damages in relation to the overhang, which it fixed in the sum of $2,500. This is in addition to the $1,950 awarded to them by the Appeals Tribunal to rectify the fascia height.

Orders