Lowik v Carl Linklater Pty Ltd - [2010] QCAT 287

CITATION:	Lowik v Carl Linklater Pty Ltd [2010] QCAT 287
PARTIES:	Ron Lowik & Debbie Lowik
v
Carl Linklater Pty Ltd
APPLICATION NUMBER:	BD230-09

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Bridget Cullen Mandikos

DELIVERED ON:

21 June 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The Respondent, Carl Linklater Pty Ltd, to pay the Applicants', Ronald Lowik and Debra Lowik, the sum of $40,372.25 no later than 4.00 pm on Friday, 30 July 2010.

CATCHWORDS :

DOMESTIC BUILDING DISPUTE - BUILDING CONTRACT - DEFECTIVE WORKS - Where contractor failed to comply with QBSA Direction to Rectify - Measure of quantum - whether replacement or rectification cost.

DOMESTIC BUILDING DISPUTE - LEAVE FOR LEGAL REPRESENTATION - COSTS - Where applicant represented by counsel and instructing solicitor - Whether costs should be awarded - Costs awarded on Magistrates Court Scale, restricted to cost of either solicitor or barrister, whichever is the lesser.

Queensland Civil and Administrative Tribunal Act 2009
Commercial and Consumer Tribunal Act 2003 (Qld)

Bellgrove v Eldridge (1954) 90 CLR 613, applied
Pulitano v Mikescapes Pty Ltd [2010] QCAT 248, considered
Tamawood Ltd. & Anor v Paans [2005] QCA 111, applied
Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8, considered

APPEARANCES and REPRESENTATION (if any):

Decision on the papers

REASONS FOR DECISION

Background

The Applicants in this matter, Ronald Lowik and Debra Lowik (“Mr and Mrs Lowik”), entered into a contract with the Respondent, Carl Linklater Pty Ltd (“Linklater”) to recoat the pool located at their Jodie Street, Kallangur, property. The work performed at the property by Linklater was the subject of a Queensland Building Services Authority ("QBSA") Direction to Rectify, Number 32813, requiring Linklater to fix the following defects:

1. The applied coating to the pool is unsatisfactory and is not to industry standards in that it is delaminating, prematurely faded and has a powdery surface easily rubbed of {sic} by hand causing it to be unfit for purpose.
2. The steel shell of the pool has been damaged during the rectification of the applied coating making the pool unsatisfactory in that the steel shell has deformed.

Linklater did not rectify the defects in accordance with the QBSA's Direction, which led to Mr and Mrs Lowik lodging a Domestic Building Dispute application with the Commercial and Consumer Tribunal ("CCT") on 18 May 2009. The CCT has subsequently been amalgamated into the Queensland Civil and Administrative Tribunal ("QCAT").

Following an oral hearing on 12 April 2010, I delivered an ex tempore decision in Mr and Mrs Lowik's favour. Linklater did not dispute liability at the hearing. As a result of Mr and Mrs Lowik not having what I considered to be adequate evidence with regards to quantum, the matter was part-heard, and I ordered that the parties make written submissions as to the appropriate quantum of loss. Both parties have now filed additional evidence relating to quantum in QCAT.

Appropriate measure of quantum

Prior to receipt…

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 Lowik v Carl Linklater Pty Ltd

Details

AGLC: Lowik v Carl Linklater Pty Ltd [2010] QCAT 287
Case: [2010] QCAT 287
Decision Date: 21 June 2010

CaseChat Overview and Summary

In the case of Lowik v Carl Linklater Pty Ltd, the applicants Ronald Lowik and Debra Lowik engaged the respondent, Carl Linklater Pty Ltd, for building works on their property. The dispute arose due to the contractor's failure to comply with a Queensland Building and Construction Commission (QBCA) Direction to Rectify. The applicants sought to recover costs related to the defective works under the Queensland Civil and Administrative Tribunal Act 2009 and the Commercial and Consumer Tribunal Act 2003 (Qld). The primary issue was the measure of quantum in relation to the defective works, specifically whether the cost should be based on replacement or rectification.

The tribunal examined the appropriate measure of quantum, referencing previous cases such as Bellgrove v Eldridge and Pulitano v Mikescapes Pty Ltd. It found that the cost should be based on the lesser of the replacement or rectification costs. Additionally, the tribunal addressed the issue of costs for legal representation, considering the applicants were represented by counsel and an instructing solicitor. It ruled that costs should be awarded on the Magistrates Court Scale, but limited to the cost of either the solicitor or the barrister, whichever is the lesser. This decision was influenced by cases such as Tamawood Ltd. & Anor v Paans and Tabcorp Holdings Limited v Bowen Investments Pty Ltd.

The tribunal ultimately found in favour of the applicants, ordering the respondent to pay $40,372.25 to the applicants by a specified date. This decision was grounded in the statutory provisions and case law, ensuring that the applicants received a fair measure of compensation for the defective works. The tribunal's approach balanced the need for effective legal representation with the principles of cost proportionality.

Orders

Orders of the court

The Respondent, Carl Linklater Pty Ltd, to pay the Applicants', Ronald Lowik and Debra Lowik, the sum of $40,372.25 no later than 4.00 pm on Friday, 30 July 2010.

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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