QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
McSwan & Anor v Weaver [2023] QCAT 148
PARTIES:
KRYSTAL AND JEREMY MCSWAN (applicant)
v
LUKE WEAVER (respondent)
APPLICATION NO/S:
BDL236-21
MATTER TYPE:
Building matters
DELIVERED ON:
2 May 2023
HEARING DATE:
5 April 2023
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
The applicants’ claim is dismissed.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where home owners contracted with a builder to construct a carport with the roof colour to have matched the colour of their existing house roof – where the colour did not match – where there was no other error in construction and the work was defect free – where the owners sought damages for the cost of replacing the carport roof - where the contract was not reduced to writing – where under statute the contract was thus of no effect
RESTITUTION – CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS – UNENFORCEABLE CONTRACT – BUILDING CONTRACT - where home owners contracted with a builder to construct a carport with the roof colour to have matched the colour of their existing house roof – where the contract was not reduced writing – where under statute the contract was thus of no effect - where the colour did not match – where there was no other error in construction and the work was defect free - where the owners sought damages for the cost of replacing the carport roof
TORTS – NEGLIGENCE – DUTY OF CARE : EXISTENCE – where home owners engaged a builder to construct a carport with the roof colour to have matched the colour of their existing house roof – where home owners asserted a reliance on the builder to identify the correct colour - where the colour did not match - where the owners sought damages for the cost of replacing the carport roof – whether the builder owed a duty of care to the owner in the circumstances of a statutory requirement for a contract to be entered into before work commenced and be reduced to writing – where if such a contract had been entered into the owners would have had the benefit of a statutory warranty covering the work in issue
Civil Liability Act 2003 (Qld), s 7
Design and Building Practitioners Act 2020 (NSW), s 37
Queensland Building and Construction Commission Act 1991 (Qld), sch 1B s 3, s 4, s 7, s 14, s 19, s 22, s 30Queensland Building and Construction Commission Regulation 2018 (Qld), s 45
Bellgrove v Eldridge (1954) 90 CLR 369, applied
Bocquee v Baltus [2019] QCAT 280, cited
Brookfield Multiplex Ltd v Owners Corporation Strata
Plan 61288 & Anor (2014) 254 CLR 185, followed
Bryan v Maloney (1995) 182 CLR 609, cited
Clarke v Queensland Building and Construction Commission [2020] QCAT 88, cited
Cerda v Jacob [2020] QCATA 57
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- AGLC
- McSwan & Anor v Weaver [2023] QCAT 148
- Case
- [2023] QCAT 148
- Decision Date
CaseChat Overview and Summary
The legal issues before the court required careful examination of the facts to determine whether the statutory warranties and insurance scheme, which were in place to provide protection against economic loss, adequately covered the circumstances of this case. The court was tasked with interpreting the existing legislation and determining its applicability to the specific claims made by the plaintiffs. The judgment highlighted the evolving nature of this area of the law and the necessity for a detailed analysis of the facts in each case to ascertain the sufficiency of the factors involved.
In its reasoning, the court noted that the resolution of such claims often depended on a detailed examination of the relevant facts. The court emphasised that while the area of economic loss claims was still evolving, legislative measures were better suited to regulate and provide clarity. The court also referenced the statutory warranties and insurance scheme in place in various Australian jurisdictions, highlighting the need for legislative reform to address the ongoing debate and differing interpretations across jurisdictions. The court's decision underscored the importance of legislative intervention to provide definitive guidelines and protections in this area of law.
The final orders of the court were to leave the resolution of the specific claims to further detailed examination and potentially to legislative reform, as the court found that the existing statutory framework and jurisprudence did not sufficiently address the issues presented in this case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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