Lida Build Pty Ltd v Miller & Anor - [2013] QCATA 139

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.

Keep reading for free

Create a free CaseChat account to read Lida Build Pty Ltd v Miller & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QCATA 139
Decision Date: 30 April 2013

CaseChat Overview and Summary

Lida Build Pty Ltd brought an appeal against the decision of the Civil and Administrative Tribunal (Tribunal), which was concerned with a dispute arising from building works performed on a property. The Tribunal had found that Lida Build had failed to comply with the building contract in several respects, leading to a finding against Lida Build for the cost of rectification. The Tribunal also found that Lida Build was not entitled to the costs of the appeal. Susan Miller and Peter Miller, the respondents, appealed against the Tribunal's decision. The central legal issues involved whether the failure to comply with the building plans resulted in damages calculated as the cost to comply with the plans or as a diminution in value, and whether it was reasonable to incur the cost to comply with the plans. Furthermore, the court had to determine whether diminution in value was the proper method of calculating loss.

The court considered the nature of the contractual obligations and the extent to which the building work deviated from the plans. It noted that while the building work was not defective, it did not comply with the contract, primarily due to a failure to follow the specified plans. The court examined whether the cost to comply with the plans was a reasonable measure of damages and whether the diminution in value approach was more appropriate. The court concluded that the Tribunal had not adequately considered the alternative measure of damages, specifically whether diminution in value was a more appropriate method. The court found that the Tribunal had not given sufficient consideration to the alternative measure of damages and the reasonableness of incurring the cost to comply with the plans.

The appeal by Lida Build was allowed in part, and the Tribunal's decision was set aside to the extent that it did not consider the alternative measure of damages. The court ordered that the Tribunal reconsider the matter, focusing on whether damages should be assessed based on the cost to rectify the roof pitch to 25° or by way of diminution in value. The court directed the Tribunal to also consider the amount to be allowed for rectification of the fascia. The appeals by Susan Miller and Peter Miller were dismissed. The Tribunal was instructed to determine the appropriate measure of damages and the amount to be awarded, considering the specific circumstances of the case.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.