Lowik v Carl Linklater Pty Ltd

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.