QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Lohmann v Jaques [2021] QCATA 28
PARTIES: GRAHAM JOHN LOHMANN
MERYL COLLEEN LOHMANN(appellants)
v
IAN CLARK JAQUES (respondent)
APPLICATION NO/S:
APL248-19; APL259-19
ORIGINATING APPLICATION NO/S:
BDL225-17
MATTER TYPE:
Appeals
DELIVERED ON:
19 March 2021
HEARING DATE:
5 November 2020
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC
ORDERS:
1. The Applications for Miscellaneous Matters filed in APL259-19 by Ian Clark Jaques on 11 June 2020 and on 4 January 2021 are both dismissed.
2. In each appeal the applicant have leave to appeal.
3. Each appeal is allowed, the appeal in APL259-19 in part.
4. The decision of the Tribunal in BDL225-17 on 26 August 2019 is varied by substituting, for the amount of $6,141.63, the amount of $1,322.10.
5. From the money held by the Tribunal Trust Account pursuant to the decision of Senior Member Howard on 11 February 2020, $1,322.10 be paid to Ian Clark Jaques, and the balance of $4,819.53 be paid to Graham J Lohmann and Meryl C Lohmann, with any accretions to be divided pro rata between them.
6. There be no order as to the costs of the appeals, unless within twenty-one days from the date of this decision a party files in the Tribunal and serves written submissions contending that some other order as to those costs should be made.
7. If such submissions are filed, the other party can file and serve written submissions in opposition within twenty-one days of the service of such submissions, provided that, if those submissions contend for some other order as to the costs of the appeals, the first party may file and serve within twenty-one days written submissions in reply; and the Appeal Tribunal will decide the issue on the papers on a date to be fixed.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – GENERALLY – REMUNERATION – EXTRAS AND ALTERATIONS – nature of contract between the parties – domestic building work – renovations to dwelling – extent of work covered by the contract – whether interest recoverable - costs
Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102, s 143, s 147.
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- AGLC
- Lohmann v Jaques [2021] QCATA 28
- Case
- [2021] QCATA 28
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court had to address were whether the contract between the parties covered the work performed, the extent of the work done, and the amount of interest that could be recovered. The court also had to determine whether the appeal was within the jurisdiction of the tribunal.
In reaching its decision, the court examined the terms of the contract, the nature of the work done, and the evidence presented by both parties. The court found that the contract did cover the work performed, and that the parties had an agreement for an extra charge for work outside the scope of the original contract. The court also held that interest was recoverable under the terms of the contract, but only on a quantum meruit basis. The court found that the tribunal had correctly calculated the amount owed to the Lohmanns but had erred in its calculation of the interest.
The court allowed the appeals, varying the decision of the tribunal by reducing the amount owed to Jaques and increasing the amount owed to the Lohmanns. The court also ordered that the money held by the tribunal be paid to the appropriate parties. The court did not make an order regarding the costs of the appeal, but invited the parties to submit written contentions if they wished to argue for a different order regarding costs.
Orders
Orders of the court
1. The Applications for Miscellaneous Matters filed in APL259-19 by Ian Clark Jaques on 11 June 2020 and on 4 January 2021 are both dismissed.
2. In each appeal the applicant have leave to appeal.
3. Each appeal is allowed, the appeal in APL259-19 in part.
4. The decision of the Tribunal in BDL225-17 on 26 August 2019 is varied by substituting, for the amount of $6,141.63, the amount of $1,322.10.
5. From the money held by the Tribunal Trust Account pursuant to the decision of Senior Member Howard on 11 February 2020, $1,322.10 be paid to Ian Clark Jaques, and the balance of $4,819.53 be paid to Graham J Lohmann and Meryl C Lohmann, with any accretions to be divided pro rata between them.
6. There be no order as to the costs of the appeals, unless within twenty-one days from the date of this decision a party files in the Tribunal and serves written submissions contending that some other order as to those costs should be made.
7. If such submissions are filed, the other party can file and serve written submissions in opposition within twenty-one days of the service of such submissions, provided that, if those submissions contend for some other order as to the costs of the appeals, the first party may file and serve within twenty-one days written submissions in reply; and the Appeal Tribunal will decide the issue on the papers on a date to be fixed.
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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