McNulty & Ralph v Sel - [2017] QCAT 10

CITATION:

McNulty & Ralph v Sel [2017] QCAT 10

PARTIES:	Marnie McNulty Robyne Ralph (Applicants)
v
Tony Sel (Respondent)

APPLICATION NUMBER:

BDL114-16

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

17 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Tony Sel pay to Marnie McNulty and Robyne Ralph the sum of $19,931.32 by 27 January 2017; and

2. Tony Sel pay to Marnie McNulty and Robyne Ralph costs of $305.00 by 27 January 2017.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – DAMAGE TO LAND AND BUILDINGS – where informal and unsigned contract with unlicensed builder – where builder did not file response – where damages to be assessed – where Tribunal may consider informal agreement in claim for negligence – where builder had duty to take reasonable care in performing work – where purpose of damages to restore applicants to position they would have been in had wrongful acts not occurred – where costs to rectify and complete directly attributable to builder performing work without licence, without due care and skill, not to proper standard or at all, without authorisation and supplying and using materials not fit for purpose – where partial refund not recoverable in addition to costs to rectify and complete

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

A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319

Barbi v. Brewer [2013] QCAT 348
Bellgrove v. Eldridge (1954) 90 CLR 613
Bryan v. Maloney (1995) 182 CLR 609
Faulks v. New World Constructions Pty Ltd (No. 2) [2014] QCAT 329
Hitchman v. Prime Building & Pest Consultants Pty Ltd (No. 2) [2016] QCAT 476
Robinson v. Harman [1848] EngR 135
Voli v. Inglewood Shire Council (1963) 110 CLR 74

APPEARANCES and REPRESENTATION (if any):

This application was determined on the papers pursuant to section 32 of the

Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

Entering into informal and unsigned contracts with unlicensed builders is fraught with risk. Marnie McNulty and Robyne Ralph paid $30,000.00 to Tony Sel to replace their decking. Unfortunately, Ms McNulty and Ms Ralph did not sign a contract with Mr Sel, who is not a licensed builder and did not complete the work.
Mr Sel did not file a response to the claim or engage with the Tribunal process. Ms McNulty and Ms Ralph are therefore entitled to a final decision in the proceeding, with damages to be assessed.[1]
[1] Directions dated 31 August 2016, paragraph 4.
The Tribunal must now assess their damages.

On what basis does the Tribunal assess damages?

The work agreed to be performed by Mr Sel is ‘reviewable domestic work’.[2] The application relates to the performance of that work.[3] The Tribunal may therefore award damages, interest thereon, restitution and costs.[4]
[2] Queensland Building and Construction Commission Act 1991 (Qld), Schedule…

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 McNulty & Ralph v Sel

Details

AGLC: McNulty & Ralph v Sel [2017] QCAT 10
Case: [2017] QCAT 10
Decision Date: 17 January 2017

CaseChat Overview and Summary

In the matter of McNulty & Ralph v Sel, the applicants, Marnie McNulty and Robyne Ralph, sought damages from the respondent, Tony Sel, for work done on their property by an unlicensed builder. The dispute was heard and determined in the Civil and Administrative Tribunal of New South Wales. The applicants alleged that the builder engaged by the respondent did not possess the required licence, performed the work without due care and skill, and used materials that were not fit for purpose. The builder failed to file a response, leading to the need for the tribunal to assess the damages claimed.

The primary legal issue before the tribunal was to determine the appropriate measure of damages for the harm caused by the respondent's actions. Given that the builder did not file a response, the tribunal had to consider the nature of the damages claimed, which included the cost to rectify and complete the work properly. The tribunal also needed to decide if a partial refund, which the applicants had received from the builder, could be considered in addition to the rectification costs. The tribunal had to balance the purpose of damages, which is to restore the applicants to the position they would have been in had the wrongful acts not occurred, with the need to prevent double recovery.

The tribunal concluded that the cost to rectify and complete the work was directly attributable to the builder's failure to perform the work with the required licence, care, skill, and proper materials. The tribunal determined that the partial refund already received by the applicants from the builder could not be considered in addition to the rectification costs, as this would result in double recovery. The tribunal assessed the total damages to be $19,931.32, which included costs for rectification and completion, and ordered the respondent to pay this sum to the applicants. Additionally, the tribunal awarded costs of $305.00 to the applicants.

The final orders of the tribunal were that Tony Sel pay to Marnie McNulty and Robyne Ralph the sum of $19,931.32 by 27 January 2017, and also pay costs of $305.00 by the same date. The tribunal's decision provides a clear framework for assessing damages in cases involving unlicensed builders and highlights the importance of preventing double recovery.

Orders

Orders of the court

1. Tony Sel pay to Marnie McNulty and Robyne Ralph the sum of $19,931.32 by 27 January 2017; and

2. Tony Sel pay to Marnie McNulty and Robyne Ralph costs of $305.00 by 27 January 2017.

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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