QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Lu v Emerson [2024] QCAT 249
PARTIES:
YI LU (applicant)
v
LEIGH EMERSON (respondent)
APPLICATION NO/S:
BDL 365-22
MATTER TYPE:
Building matters
DELIVERED ON:
14 June 2024
HEARING DATE:
On the papers
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
1. The respondent is to pay to the applicant $6,000 in restitution of that which the applicant paid to him for the construction of hard-landscaping works.
2. The applicant is relieved from paying to the respondent the remaining $21,000 of that which the applicant agreed to pay to the respondent for the construction of hard-landscaping works.
3. The respondent is to pay to the applicant $367 in costs of this proceeding.
4. To the extent the applicant pressed a claim in damages in this proceeding, that claim is dismissed.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where a home owner contracted with a brick & block-laying trade contractor for the construction of hard-landscaping works - where there was no written contract between the parties – where under statute the contract was of no effect – where the home owner had paid a deposit against the purported contract - where the works were only partially performed – where the works performed were defective and the only effective remedy was to demolish and reconstruct it – where the contractor refused to return to and continue with the work unless he was paid further payments - where the homeowner asserts he terminated the contract – where the owner claimed damages
RESTITUTION – CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS – UNENFORCEABLE CONTRACT – BUILDING CONTRACT - where a home owner contracted with a brick & block-laying trade contractor for the construction of hard-landscaping works including a substantial retaining wall, concrete pavement, and timber stairs on a structural steel frame - where there was no written contract between the parties – where under statute the contract was of no effect – where the home owner had paid a deposit against the purported contract - where the works were only partially performed – where the works performed were defective – where the only effective remedy to the defective work was to demolish and reconstruct it – where the contractor refused to return to and continue with the work unless he was paid further payments - where the homeowner asserts he terminated the contract – where the evidence supported relief in the form of restitution of the amount paid as a deposit
Queensland Building and Construction Commission Act 1991 (Qld) s 42, s 75, s 76, s 77, Schedule 1A s 8, Schedule 1B s 3, s 4, s 5, s 7, s 14, s 22, Schedule 2
Queensland Building and Construction CommissionRegulation 2018 (Qld) s 7(2)(b), s 8, Schedule 2 Part 3.Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(c), s 32, s 100, s…
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- AGLC
- Lu v Emerson [2024] QCAT 249
- Case
- [2024] QCAT 249
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the contract was enforceable despite its ineffectiveness under statute, the measure of damages for defective works, and the appropriate remedy for Mr. Lu in the form of restitution or damages. The court had to determine whether Mr. Lu could claim restitution of the deposit paid and whether damages were an appropriate remedy for the defective works. Additionally, the court had to consider whether Mr. Lu's assertion of terminating the contract was valid and if so, whether that would affect the contractor's right to further payments.
The court found that since there was no written contract, the agreement between the parties was ineffective under statute. It was held that Mr. Lu could claim restitution of the deposit paid as the ineffective contract could not be enforced. The court found that the works performed were defective, and the only effective remedy was to demolish and reconstruct them. As Mr. Emerson refused to continue the work unless further payments were made, the court ruled that Mr. Lu was justified in terminating the contract. The court further held that damages were not an appropriate remedy because the only effective remedy was to demolish and reconstruct the defective works. Consequently, the court ordered Mr. Emerson to pay Mr. Lu $6,000 as restitution of the deposit and dismissed Mr. Lu's claim for damages. The court also ordered Mr. Emerson to pay $367 in costs and relieved Mr. Lu from paying the remaining $21,000 agreed upon for the works.
Orders
Orders of the court
1. The respondent is to pay to the applicant $6,000 in restitution of that which the applicant paid to him for the construction of hard-landscaping works.
2. The applicant is relieved from paying to the respondent the remaining $21,000 of that which the applicant agreed to pay to the respondent for the construction of hard-landscaping works.
3. The respondent is to pay to the applicant $367 in costs of this proceeding.
4. To the extent the applicant pressed a claim in damages in this proceeding, that claim is dismissed.
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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