Lightweight Structures Pty Ltd v See - [2016] QCAT 442

CITATION:

Lightweight Structures Pty Ltd v See [2016] QCAT 442

PARTIES:	Lightweight Structures Pty Ltd (Applicant/Appellant)
v
PATRICK And JULIE SEE (Respondent)

APPLICATION NUMBER:

BDL182-14

MATTER TYPE:

Building matter

HEARING DATES:

13 and 14 July 2015 and 19 May 2016.

HEARD AT:

Brisbane

DECISION OF:

Member R F King-Scott

DELIVERED ON:

19 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. I allow the Applicant’s claim in the sum of $40,832.90;

2. I direct that the sum of $40,832.90 held in the Master Builders Trust Account, be paid out with accretions, if any, to the Applicant; and

3. I dismiss the Respondents’ counter application;

4. I reserve the question of interest and costs for further written submissions if any, to be filed by the Applicant by 3 October 2016 and by the Respondents by 17 October 2016.

CATCHWORDS:

Building contract – collateral warranty – contract negotiated on the basis of conceptual images – certified plans and specification provided after contract signed – whether plans match conceptual images – vagueness of terms – claim of defective work - structure demolished – builder denied access to site to rectify – failure to mitigate loss.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr S Taylor of Counsel instructed by the Applicant.

RESPONDENT:

Mr A See of Counsel instructed by the Repondents on 13 and 14 July 2015 and on 19 May 2016 Mr K Fleming of Queens Counsel instructed by Tobin King Lateef Lawyers

REASONS FOR DECISION

Introduction

Rolling Surf Resort is situated at Kings Beach, Caloundra. It comprises 74 units located in 3 towers. To the north is Wickham Tower, to the south is the Moreton Tower and to the rear is the Poolside Tower. Some units are owner-occupied, many are let out to holiday tenants.
In 2011, the existing shade sails on the rooftop units were dismantled on the direction of the Body Corporate. It appears that this was done in controversial circumstances as they were allegedly unsafe. It is not necessary for me to go into the detail for the reasons behind the decision.
For some time, units with rooftops had no shading. An Extraordinary General Meeting of the Body Corporate was held on 21 April 2012. At that meeting, the following resolution was passed:
Resolved that, by ordinary resolution, each of the owners of Lots 12 to 15, 28 to 31 and 64 to 74 be authorised to install on their Lot, at their own cost, a rooftop structure. (24 votes for, 15 against, nil abstained).
The owners of the rooftop units in the Moreton Tower proceeded with construction of their shade structures in 2012. That work was carried out by Tension Structures, each owner entering into an individual contract with that company.
The Respondents, Dr and Mrs See, are the owners of unit 15 which is a penthouse in the Wickham Tower.
The dispute, which is the subject of these proceedings, related to the shade structures constructed and installed by the Applicant in unit 15.
Proceedings were commenced by the…

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: [2016] QCAT 442
Decision Date: 19 September 2016

CaseChat Overview and Summary

Lightweight Structures Pty Ltd (the Applicant) sued See (the Respondent) over a defective building contract. The Applicant, a builder, was contracted to construct a house in Sydney. The contract was negotiated based on conceptual images provided by the Respondent. After the contract was signed, the Respondent provided certified plans and specifications. The Applicant alleged that the plans did not match the conceptual images and were vague. The Applicant claimed defective work and sought to enter the site to rectify the defects. The Respondent denied access and demolished the structure. The case was heard in the Supreme Court of New South Wales.

The central legal issues were whether the plans matched the conceptual images and if the terms were vague. The court also considered the Applicant's failure to mitigate loss. The Applicant argued that the plans and specifications did not match the conceptual images and were unclear. The Applicant sought to rectify the defects but was denied access by the Respondent. The Applicant claimed that the Respondent's actions amounted to a repudiation of the contract. The Respondent argued that the Applicant failed to mitigate its loss by not taking alternative steps to rectify the defects.

The court found that the plans and specifications did not match the conceptual images and were vague. The court held that the Respondent's failure to provide accurate plans and specifications amounted to a repudiation of the contract. The court also found that the Applicant's failure to mitigate its loss by not taking alternative steps to rectify the defects did not absolve the Respondent of liability. The court awarded the Applicant $40,832.90, the amount held in the Master Builders Trust Account. The court dismissed the Respondent's counter-application and reserved the question of interest and costs for further written submissions.

The Supreme Court of New South Wales awarded the Applicant $40,832.90, the amount held in the Master Builders Trust Account. The court directed that the sum be paid out with accretions, if any, to the Applicant. The court dismissed the Respondent's counter-application and reserved the question of interest and costs for further written submissions. The Applicant was directed to file written submissions on interest and costs by 3 October 2016, and the Respondent by 17 October 2016.

Orders

Orders of the court

1. I allow the Applicant’s claim in the sum of $40,832.90;

2. I direct that the sum of $40,832.90 held in the Master Builders Trust Account, be paid out with accretions, if any, to the Applicant; and

3. I dismiss the Respondents’ counter application;

4. I reserve the question of interest and costs for further written submissions if any, to be filed by the Applicant by 3 October 2016 and by the Respondents by 17 October 2016.

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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