Matthew & Dwyer v Caesar's Tiling Laidley
[2010] QCAT 253
•17 March 2010
| CITATION: | Matthew & Dwyer v Caesar’s Tiling Laidley [2010] QCAT 253 |
| PARTIES: | Mr & Mrs Matthew & Jacqueline Dwyer |
| v | |
| Mr Wayne Barry Caesar t/a Caesar’s Tiling Laidley |
APPLICATION NUMBER: BD481-09
| MATTER TYPE: | Building matters |
HEARD AT: Brisbane
| DECISION ON THE PAPERS OF: | Dr Bridget Cullen Mandikos |
DELIVERED ON: 17 March 2010
DELIVERED AT: Brisbane
| CATCHWORDS : | Default of Respondent in filing defence; unliquidated claim; section 48 Queensland Civil and Administrative Tribunal Act 2009. |
ORDERS MADE: The Tribunal Orders that:
1. In accordance with section 48(2)(b)(i) of the QCAT Act, the Tribunal makes a decision in favour of Mr and Mrs Dwyer, with quantum to be assessed on the papers; and
2. Mr and Mrs Dwyer are to complete an affidavit outlining the quantum of their loss, containing supporting materials, no later than 4.00 pm on Wednesday 31 March 2010.
REASONS FOR DECISION
The applicants, Matthew & Jacqueline Dwyer (“Mr and Mrs Dwyer”), filed an application – domestic building dispute in the former Commercial and Consumer Tribunal registry (“the CCT”) on 15 November 2009. The affidavit of service was lodged in the CCT registry on 24 November 2009.
The respondent, Mr Wayne Barry Caesar t/a Caesar’s Tiling Laidley (“Caesar’s Tiling”) has not filed a defence to the application.
The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the CCT: section 256 Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
On 27 January 2010, it was ordered by QCAT, that Mr and Mrs Dwyer file and serve upon Caesar’s Tiling any documentary evidence that they wished the Tribunal to consider with regard to their loss on or before 4.00pm on 3 February 2010. Mr and Mrs Dwyer have not filed any further material. Caesar’s Tiling was to have filed any submissions in response to Mr and Mrs Dwyer’s material on or before 4pm 17 February 2010. Caesar’s Tiling has not filed any material. However, as Mr and Mrs Dwyer did not file any new material, this is of no particular moment.
Mr and Mrs Dwyer claim that:
(1) the architrave in their ensuite became discoloured as a consequence of the respondent having incorrectly installed a floor waste;
(2) that the Queensland Building Services Authority (“QBSA”) determined that it was Caesar Tiling’s responsibility to rectify three category one defects identified by the BSA; and
(3) allege that Caesar’s Tiling has not responded to the QBSA’s Direction to Rectify. There is no information before me, other than Mr and Mrs Dwyer’s originating application, which substantiates any of this information.
The orders that Mr and Mrs Dwyer seeks are, in their own terms, as follows:
(1) that the BSA home warranty insurance scheme should cover the type of category one defect identified and that work to correct the defect be ordered to commence as soon as possible to avoid further damage to the en-suite and bathroom;
(2) that the interpretation that these type of defects are outside the ambit of deemed residential construction work be reversed. Any reasonable person would expect that substandard tiling work and the subsequent water damage to newly built bathrooms would be covered under the insurance scheme. The policy should be amended if necessary; and
(3) as an alternative solution, the owner would accept as cash payment of $9,500 and arrange the rectification work independently.
The QBSA is not a party to this proceeding
There are number of difficulties with the release sought by the applicant. Mr & Mrs Dwyer has not included the QBSA as a respondent, and therefore it is not possible for me to make any order against the QBSA.
Caesar Tiling’s failure to comply with Tribunal directions
In view of Caesar Tiling’s failure to (1) serve a defence to Mr and Mrs Dwyer’s application either within the ordinary time allowed or following the direction of the Tribunal issued on the 22 January 2010, the Tribunal may, in accordance with section 48 of the QCAT Act, make a final decision in Mr and Mrs Dwyer’s favour.
As Mr and Mrs Dwyer have proceeded against Caesar’s Tiling only, and have not joined the QBSA, any relief must be confined to a determination in Mr and Mrs Dwyer’s favour against Caesar’s Tiling.
The difficulty that the Tribunal faces in making a final determination in favour of Mr and Mrs Dwyer relates to the lack of information about the quantum of their loss. Indeed, this was the point of having issued the direction on 27 January 2010, requiring that Mr and Mrs Dwyer substantiate the extent of their loss by filing and serving further submissions. It is not acceptable for Mr and Mrs Dwyer to nominate a figure of $9,500.00 as being a sufficient payment to rectify the work that has been done by Caesar’s Tiling.
In order to make an appropriate assessment as to Mr and Mrs Dwyer’s loss, they are required to provide documentation that substantiates the actual cost of rectification; for example, an estimate prepared by a licensed builder, outlining the rectification work necessary, and detailing the work to be done.
Orders
The Tribunal finds that Caesar’s Tiling has failed to comply with a tribunal order or direction without reasonable excuse, in contravention of Section 48 of the QCAT Act. Though Caesar’s Tiling has elected not to defend Mr and Mrs Dwyer’s application, the Tribunal must have some satisfactory indication as to what rectification will cost, so that appropriate compensation can be ordered.
The Tribunal Orders that:
(1) In accordance with Section 48(2)(b)(i) of the QCAT Act, the Tribunal makes a decision in favour of Mr and Mrs Dwyer, with quantum to be assessed on the papers; and
(2) Mr and Mrs Dwyer are to complete an affidavit outlining the quantum of their loss, containing supporting materials, no later than 4.00 pm on Wednesday 31 March 2010.
In the event that Mr and Mrs Dwyer do not comply with this direction, their application will be dismissed by the Tribunal.
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