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Marsh v Walter Iezzi Property Group

Marsh v Walter Iezzi Property Group

Case [2021] QCAT 191 10 May 2021

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Marsh v Walter Iezzi Property Group [2021] QCAT 191

PARTIES:

ELAINE JANET MARSH
(applicant)

v

WALTER IEZZI PROPERTY GROUP

(respondent)

APPLICATION NO/S:

BDL024-20

MATTER TYPE:

Building matters

DELIVERED ON:

10 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where claim for defective or incomplete work – where lack of evidence of legally binding Agreement or Deed – where lack of evidence of defective building work sufficient to establish breach of agreement, breach of duty, causation and consequential loss

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Briginshaw v Briginshaw (1938) 60 CLR 336
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Eastwood v Kenyon (1840) 11 Ad & E 438
First National Securities Ltd v Jones [1978] Ch 109
Harris v Foxworth Pty Ltd [2013] QCATA 133
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212
Re Hudson (1885) 54 LJCh 811
Thomas v Thomas (1842) 2 QB 851
Xenos v Wickham (1863) 14 CBNS 435

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION
What is this Application about?

Elaine Marsh claims that Walter Iezzi Property Group damaged her former property while performing works on a neighbouring property. She is now seeking rectification of works that she claims Walter performed to fix the issues to her former property.
The difficulty for Ms Marsh is the lack of a coherent formulation of her claim and lack of evidence to support the essential elements of her claim. For the Tribunal to order rectification, Ms Marsh would need to address a number of fundamental issues:
(a)Was there a legally binding Deed or Agreement requiring Walter to perform the work?
(b)What is said to be defective?
(c)How is it defective?
(d)What is each defect worth?
Alternatively, Ms Marsh would need to claim damages in negligence based on a duty of care owed to her by Walter. As this claim would be based in pure negligence, Ms Marsh would need to address other fundamental issues:
(a)Did Walter owe her a duty of care?
(b)If so, what was the scope of the duty?
(c)Did Walter breach the duty?
(d)Did the breach cause loss?
Ms Marsh attached emails that she said constituted an Agreement.[1] However, there is no evidence of any consideration for this alleged Agreement.[2] Without evidence of consideration, the emails are more akin to a goodwill gesture by Walter rather than a legally enforceable agreement.[3] They also do not meet the requirements for a legally enforceable Deed.[4]
[1]Applicant Statement of Evidence dated 17 July 2020, Appendix 1, 2.
[2]Thomas v Thomas

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 Marsh v Walter Iezzi Property Group

Details

AGLC: Marsh v Walter Iezzi Property Group [2021] QCAT 191
Case: [2021] QCAT 191
Decision Date

CaseChat Overview and Summary

Elaine Janet Marsh applied to the Queensland Civil and Administrative Tribunal (QCAT) for an order requiring Walter Iezzi Property Group to rectify work on her former property that she claims was damaged by Walter during works on a neighbouring property. The Tribunal considered the matter on the papers, and dismissed the application. The key issue for the Tribunal was whether Ms Marsh had provided sufficient evidence to establish a legally binding agreement or deed requiring Walter to perform the work on her property, and whether she had provided sufficient evidence of defective work, breach of duty, causation and loss. Ms Marsh had attached emails to her application which she claimed constituted an agreement, but the Tribunal found that there was no evidence of consideration for this alleged agreement, and therefore it was not legally enforceable. The Tribunal also found that Ms Marsh had not provided sufficient evidence to establish a breach of duty of care, causation and loss. The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate, but it must also act fairly and according to principles of natural justice with as little formality and as much speed as matters permit. Ms Marsh must establish her case against Walter, and she must prove her claim to the reasonable satisfaction of the Tribunal. In the absence of sufficient evidence to prove a legally binding agreement or deed, breach of duty, causation and loss, the Tribunal was not satisfied that Ms Marsh had established her claim to the requisite standard of proof. The application was dismissed.

The Tribunal noted that the onus is always on the applicant to present their case, and in the face of poorly prepared material, the Tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The Tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case. The Tribunal also noted that QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. The Tribunal considered that it would not be fair to order Walter to rectify work without sufficient evidence of the elements required to establish Ms Marsh’s case. The application was dismissed with no orders for costs.

Orders