Marsh v Walter Iezzi Property Group

[2021] QCAT 191

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?

1. 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.

2. 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?

3. 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?

4. 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 (1842) 2 QB 851, 859.

   [3]Re Hudson (1885) 54 LJCh 811; Eastwood v Kenyon (1840) 11 Ad & E 438, 451.

   [4]First National Securities Ltd v Jones [1978] Ch 109; Xenos v Wickham (1863) 14 CBNS 435, 473.

5. The emails are sufficient to establish that Walter owed Ms Marsh a duty of care.  However, no independent expert evidence of defective building work or the standard of workmanship was provided to establish a breach of duty. No evidence of causation was adduced. No evidence of loss was adduced.

6. The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[5] However, it must also act fairly[6] and according to principles of natural justice[7] with as little formality and as much speed as matters permit.[8]  Ms Marsh must establish her case against Walter. She must prove her claim to the reasonable satisfaction of the Tribunal:

   … “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[9]

   [5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c).

   [6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

   [7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

   [8]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d).

   [9]Briginshaw v Briginshaw (1938) 60 CLR 336, 346 (Dixon J).

7. It would not be fair to order Walter to rectify work without sufficient evidence of the elements required to establish Ms Marsh’s case.[10] Ms Marsh has an obligation to act in her own best interests:

   The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. 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.[11]

   [10]The photographs included in the Applicant Statement of Evidence are undated and not attached to any sworn statement. Moreover, they are not sufficient to establish causation, breach of duty or loss.

   [11]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.

8. The onus is always upon Ms Marsh to present her case.[12] The Tribunal cannot make orders without sufficient proof:

   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.[13]

   [12]Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [47]; Harris v Foxworth Pty Ltd [2013] QCATA 133, [18].

   [13]Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [3].

9. In the absence of sufficient evidence to prove a legally enforceable agreement or Deed,  breach of duty, causation and consequential loss, I am not satisfied that Ms Marsh has established her claim to the requisite standard of proof.

10. The application is dismissed.