Lida Build Pty Ltd v Miller ( No 2) - [2014] QCAT 179

CITATION:

Lida Build Pty Ltd v Miller ( No 2) [2014] QCAT 179

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

APPLICATION NUMBER:

BD314-09

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cotterell

DELIVERED ON:

28 April 2014

DELIVERED AT:

Brisbane

AMENDED ORDERS MADE:

1. Peter Miller and Susan Miller shall pay Lida Build Pty Ltd the sum of $33,188.98.

2. Peter Miller and Susan Miller shall pay Lida Build Pty Ltd interest on the sum of $33,188.98 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 $2,500.00 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:

Correction of an error arising from an accidental slip

Queensland Civil and Administrative Tribunal Act 2009 s 135

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

The matter came back to this Tribunal on the basis of the Appeal Tribunal’s decision of 30 April 2013 which involved the following decisions and Orders:

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

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

3. The respondent must pay to the applicant $25,795.78 by 30 May 2013.

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

5. 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.

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

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

The Appeals Tribunal acknowledged that Lida Build was entitled to the amount of $72,767.47 in respect of its claim subject to the following counterclaims by the Millers:
a)     Late completion damages = $4,200
b)     Claim for shuttering = $3,865.21
c)     Minor defect = $1,267.50
Total = $9,332.71
Accordingly, there was a balance of $63,434.76 ($72,767.47 less $9,323.71) payable from the Millers to Lida Build, which amount did not include damages of $1,950 in relation to the height of the fascia.

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 179
Decision Date

CaseChat Overview and Summary

Lida Build Pty Ltd filed an application against Peter Miller and Susan Miller, seeking compensation for building defects in a property. The case, Lida Build Pty Ltd v Miller (No 2), was heard and determined by Member Cotterell of the Queensland Civil and Administrative Tribunal (QCAT). The dispute arose from an appeal against a previous QCAT decision regarding the amount owed by the Millers to Lida Build for building defects and late completion damages. The legal issues included determining the correct amount owed by the Millers to Lida Build, considering various counterclaims and deductions, and rectifying an error made in a prior decision.

The court examined the Appeals Tribunal's decision, which had set aside a previous QCAT decision and ordered the Millers to pay Lida Build $61,484.76. However, the court identified an error in the Appeals Tribunal's decision, which had inadvertently included a deduction for damages related to the fascia height, which had already been accounted for. The tribunal acknowledged that the Millers should pay Lida Build $72,767.47, less the counterclaims and a deduction for the fascia height, resulting in a balance of $33,188.98. The tribunal also addressed the interest on the amount owed and allowed a deduction for nominal damages for the overhang.

In light of the identified error, the tribunal issued amended orders. Peter Miller and Susan Miller were directed to pay Lida Build the sum of $33,188.98, plus interest at 14.98% from the date of the order until the amount is paid. Lida Build was allowed a deduction from the amount to be paid for interest on the sum of $2,500 at the same interest rate, from the date of the order until payment. This decision corrected the error from the prior tribunal's decision and clarified the financial obligations between the parties.

Orders