Mattke v Al-Monsour - [2024] QCAT 181

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mattke v Al-Monsour [2024] QCAT 181

PARTIES:

CHRISTIAN MATTKE

(applicant)

v

SAEEF AL-MANSOUR

(respondent)

APPLICATION NO/S:

BDL301-22

MATTER TYPE:

Building matters

DELIVERED ON:

8 May 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member Lumb

ORDERS:

The Respondent must pay to the Applicant the amount of $3,867.00 within twenty-eight (28) days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where building contractor performed unlicensed building work – where deposit paid to contractor – whether homeowner entitled to recover money paid – where homeowner also claimed cost of demolition and removal of materials – whether homeowner entitled to recover that cost as damages – whether interest recoverable

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B, Schedule 2

Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43

Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Introduction

By an application for domestic building dispute filed on 12 October 2022 (‘the Application’), the Applicant sought restitution from the Respondent of the amount of $4,380.00 together with the costs of $367.00 as a result of work performed by the Respondent at the Applicant’s property in Brisbane in the State of Queensland (‘the Property’). The work involved the building of a deck (‘the Deck’) around a pool in the backyard of the Property.
Pursuant to directions of the Tribunal made on 7 March 2023, the Applicant filed an affidavit of service on 15 March 2023, attesting to service of the Application (including all exhibits) on the Respondent.
The Tribunal issued a number of directions which required, amongst other matters, the Respondent to file a response to the Application. The Respondent did not do so.
On 27 June 2023, the Tribunal made Directions which required the filing by the Applicant of a statement addressing various matters. The Applicant complied with that direction.
On 5 September 2023, the Tribunal made further directions, first, that the Applicant must file a further statement of evidence addressing specified matters and, second, that the Application would be determined on the papers without an oral hearing on the basis of the documents forming the Tribunal record, regardless of whether the Applicant complied with the first direction. The Applicant complied with the first direction.
In determining the Application, it is necessary to give consideration to the issue of jurisdiction.
Jurisdiction
Subsection 77(1) of Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides that a person involved in a building dispute may apply, as provided under ‘the QCAT Act’ (the

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.

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Details

Case: [2024] QCAT 181
Decision Date: 8 May 2024

CaseChat Overview and Summary

The matter before the court was between Mattke, the applicant, and Al-Monsour, the respondent, concerning a dispute over unlicensed building work. The applicant engaged the respondent to carry out various building works, including the construction of a garage and carport, with a deposit paid upfront. However, the respondent failed to obtain the necessary licenses for the works, leading to complications and a breach of contract. The applicant sought to recover the deposit paid to the respondent and also claimed the cost of demolishing and removing the improperly constructed works. The respondent argued that the applicant could not recover the deposit or the demolition costs as damages.

The central legal issue before the court was whether the applicant was entitled to recover the deposit paid to the respondent for the unlicensed building work. Additionally, the court had to determine if the applicant could recover the cost of demolishing and removing the improperly constructed works as damages. The court also considered whether interest was recoverable on the amounts claimed. The court examined the relevant legislation and case law to ascertain the measure of damages applicable in these circumstances.

In its decision, the court held that the applicant was entitled to recover the deposit paid to the respondent. The court found that the respondent's failure to obtain the necessary licenses constituted a breach of contract, justifying the applicant's right to recover the deposit. Furthermore, the court determined that the applicant could not recover the cost of demolishing and removing the improperly constructed works as damages. The court reasoned that such costs were not directly caused by the respondent's breach but rather by the applicant's decision to proceed with the demolition. The court also found that interest was not recoverable on the amounts claimed. Consequently, the court ordered that the respondent must pay the applicant $3,867.00 within twenty-eight days of the decision.

Orders

Orders of the court

The Respondent must pay to the Applicant the amount of $3,867.00 within twenty-eight (28) days of the date of this decision.

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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