McSwan & Anor v Weaver

Case [2023] QCAT 148

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 30

Queensland 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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McSwan & Anor v Weaver [2023] QCAT 148
Case
[2023] QCAT 148
Decision Date

CaseChat Overview and Summary

McSwan & Anor v Weaver involved the plaintiffs, McSwan and another, who were contesting a decision related to economic loss claims against the defendant, Weaver. The case was heard in the High Court of Australia. The central issue in this legal dispute was the interpretation and application of the statutory warranties and insurance scheme designed to protect subsequent purchasers of homes and original contracting owners from economic loss. The case hinged on whether sufficient factors of a relevant and significant degree had been demonstrated to warrant compensation for economic loss.

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

As Callinan J aptly put it in his reasons published separately from the majority:[82]In this area of claims, for economic loss, an evolving area of the law, cases will in practice only be resolved by closely and carefully examining the facts to ascertain whether a sufficiency of factors of a sufficient degree of relevance and importance has been demonstrated. ….It is unnecessary to deal with cases in other jurisdictions in any detail. They are summarised in the judgment of Brennan J in Bryan v Maloney. That summary indicates that the question for decision here has been given different answers in different jurisdictions at different times.What the debate in this appeal does show however is that this particular area is better regulated, as it has already in many respects and places been, by legislators. [82]Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor (2004) 216 CLR 515,593,[231] to [233]. Emphasis added. Footnote omitted. His Honour’s reference to the regulation then in place is, by content of the footnote thereto, shown to be to the statutory warranties and statutory insurance scheme in place in the various jurisdictions of Australia for the benefit of not only subsequent purchasers of homes but also original contracting owners. The different answers and the debate to which his Honour was referring almost 20 years ago still continues today. It would assist to have this finalised by the requisite legislative reform.

Ratio Decidendi

Legal Principle Established

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