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Limbu & Limbu v Austyle Building Pty Ltd

Limbu & Limbu v Austyle Building Pty Ltd

Case [2023] QCAT 89 14 March 2023

Repayment of Consideration

Interest on Damages

Building and Construction Law

Consumer Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Limbu & Limbu v Austyle Building Pty Ltd [2023] QCAT 89

PARTIES:

TIKA LIMBU AND INDIRA LIMBU

(Applicants)

v

AUSTYLE BUILDING PTY LTD

(Respondent)

APPLICATION NO/S:

BDL027-22

MATTER TYPE:

Building matters

DELIVERED ON:

14 March 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Younger

ORDERS:

1.   Austyle Building Pty Ltd must pay Tika Limbu and Indira Limbu the amount of FOUR HUNDRED AND SEVEN THOUSAND, TWO HUNDRED AND NINETEEN DOLLARS ($407,219), within 28 days of this decision.

2.   Austyle Building Pty Ltd must pay Tika Limbu and Indira Limbu interest, on the sum of $407,219, at the rate of 10% from the date after this order until and including the day the amount is paid, within 28 days of this decision.

3.   Austyle Building Pty Ltd must pay Tika Limbu and Indira Limbu costs in the amount of THREE HUNDRED AND FIFTY-EIGHT DOLLARS ($358), within 28 days of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMEDIES FOR BREACH OF CONTRACT - DAMAGES – MEASURES OF – where contract entered into for the performance of building work – where builder becomes unlicensed after entering into contract and after money paid by the owner – where builder does not perform any building work under the contract – assessment of damages – whether owner entitled to recover money paid to builder under the contract – whether the applicant’s claim to contractually prescribed liquidated damages succeeds – whether owner entitled to recover damages to complete works

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48
Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 43, s 77, Schedule 1B, Schedule 2

Queensland Building and Construction Commission Regulation 2018, s 54

Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119
Blake v Burrows [2021] QCAT 115, considered
CG and HG Windsor Pty Ltd v Waterman [2013] QCAT 618 at [56] referring to Bellgrove v Eldridge (1954) 90 CLR 613 at [5], applied

Cook’s Construction P/L v SFS 007.298.633 P / L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75 (3 April 2009), cited

Harrison & Anor v Meehan [2017] QCA 315 at [55], referring to Miller v Lida Build Pty Ltd [2015] QCATA 137, applied
Kalkamoning Pty Ltd v Zuch & Anor [2021] QCAT 269 at [238], cited
Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207 at [41], considered

Robinson v Harman (1848) 1 Ex 850; 154 ER 363, cited;

Singh v The Dirt Guys Pty Ltd [2019] QCAT 85 at [32]-[33], referring to Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196, applied
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [15], cited

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228 at [45], referring to Mertens v Home Freeholds Co.[1921] 2 KB 526, 535, applied

APPEARANCES & REPRESENTATION:

This matter…

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.

Continue reading Limbu & Limbu v Austyle Building Pty Ltd

Details

AGLC: Limbu & Limbu v Austyle Building Pty Ltd [2023] QCAT 89
Case: [2023] QCAT 89
Decision Date

CaseChat Overview and Summary

This case concerns a domestic building dispute between Tika Limbu and Indira Limbu (the applicants) and Austyle Building Pty Ltd (the respondent). The applicants engaged Austyle to perform building works on a property at 33 Colville Street, Highgate Hill, Qld. The applicants paid a deposit and an advance to Austyle, but Austyle did not commence or complete any of the work. The applicants filed an application for a domestic building dispute with the Queensland Civil and Administrative Tribunal (the Tribunal). Austyle failed to comply with any directions made by the Tribunal, including to file a response to the application. The Tribunal found that the applicants were entitled to recover their deposit and advance, as well as the cost to complete the works, and to be awarded interest and costs. The Tribunal found that Austyle’s builder licence had been cancelled during the contract period, but that this did not impact the applicants’ right to recover their payments as Austyle had initially held an appropriate licence. The Tribunal found that Austyle had breached the contract and repudiated it, entitling the applicants to terminate the contract. The Tribunal assessed the applicants’ damages as the difference between the contract price and the estimated cost to complete the works, being $407,219, plus interest and costs. The Tribunal ordered that Austyle pay the applicants the amount of $407,219 within 28 days of the decision, plus interest at the rate of 10% from the day after this order until and including the day the amount is paid, and costs in the amount of $358.

Orders