Mikita v Kontek Constructions Pty Ltd - [2024] QCAT 315

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mikita v Kontek Constructions Pty Ltd [2024] QCAT 315

PARTIES:

DAVID MIKITA

(applicant)

v

KONTEK CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

BDL273-21

MATTER TYPE:

Building matters

DELIVERED ON:

7 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

1. The Respondent must pay to the Applicant the amount of $77,442.23 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 – domestic building dispute – where respondent/building contractor performed concreting work for applicant/homeowner – where homeowner paid contract price – where homeowner claimed work was defective – where no signed and dated contract between the parties – whether regulated contract under the Queensland Building and Construction Commission Act 1991 (Qld) – whether claim in contract available – whether claim in negligence available – where claim is for pure economic loss – whether duty of care owed by contractor to homeowner – whether contractor breached duty of care in carrying out, and attempting to rectify, the concreting work – assessment of damages

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, s 1, s 4, s 5, s 6, s 7, s 14, s 30, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), s 45

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

Astley v Austrust Ltd (1999) 197 CLR 1
Batterham v Makeig [2010] NSWCA 86
Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665

Bryan v Maloney (1995) 182 CLR 609

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & Anor (2014) 254 CLR 185

Burnell v Jarvis [2024] QCAT 126

Cerda v Jacob [2020] QCATA 57

Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498

Gnych v Polish Club Ltd (2015) 255 CLR 414

Mousa v Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49

Perre v Apand Pty Ltd (1999) 198 CLR 180

Townsend and Anor v Roussety and Co (WA) Pty Ltd and Anor (2007) 33 WAR 321

Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205

Mallonland Pty Ltd v Advanta Seeds PtyLtd [2023] QCA 24

McSwan v Weaver [2023] QCAT 148

Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor (2004) 216 CLR 515

Prestia v Aknar (1996) 40 NSWLR 165

Zhang v Hardas (No 2) [2018] NSWSC 432

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 disputes filed on 26 October 2021 (‘the Application’), the Applicant claims damages and restitution from the Respondent as a result of concreting work performed by the Respondent at the Applicant’s property in Brisbane in the State of Queensland (‘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 315
Decision Date: 7 August 2024

CaseChat Overview and Summary

The applicant, Mikita, brought a claim against the respondent, Kontek Constructions, in relation to concreting work carried out at a property the applicant owned. The applicant paid the contract price but claimed that the work was defective. The respondent did not admit to liability and the case proceeded to a trial. The central issue for determination was whether the contract between the parties was regulated under the Queensland Building and Construction Commission Act 1991 (Qld). The court found that the contract was indeed regulated and that the applicant could not bring a claim under the Act due to the absence of a signed and dated contract. The court then considered whether the applicant could bring a claim in contract and found that this was also precluded by the absence of a signed and dated contract. The court then considered whether the applicant could bring a claim in negligence. The court found that the respondent owed a duty of care to the applicant in carrying out, and attempting to rectify, the concreting work. The court found that the respondent breached this duty of care and awarded damages to the applicant. The court assessed the damages and ordered that the respondent pay the applicant the sum of $77,442.23 within twenty-eight days of the date of the decision.

Orders

Orders of the court

1. The Respondent must pay to the Applicant the amount of $77,442.23 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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