Muqaddas v Faraimo - [2022] QCAT 303

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Muqaddas v Faraimo [2022] QCAT 303

PARTIES:

BUSHRA MUQADDAS

(applicant)

v

SAPATI MICHAEL FARAIMO

(respondent)

APPLICATION NO/S:

BDL218-21

MATTER TYPE:

Building matters

DELIVERED ON:

20 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

Sapati Michael Faraimo must pay Bushra Muqaddas the amount of $5,600 by 4.00pm on 31 August 2022.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – JUDGMENT IN DEFAULT OF OTHER REQUIRED STEP – where respondent repeatedly failed to comply with directions made by the Tribunal – where the applicant applied for default judgment

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – domestic building dispute – where builder undertook to perform and performed unlicensed building work – whether amounts paid to be repaid – where one informal agreement effective – where work performed defective and incomplete – breach of contract – where one informal agreement ineffective – failure to complete work – whether claim for damages in negligence available

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B s 4, s 6, s 13, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), s 5, Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 50A

Atkinson & Anor v Van Uden [2020] QCAT 259

Bellgrove v Eldridge (1954) 90 CLR 613
Bocquee v Baltus [2019] QCAT 280
Canavan v Sutton [2020] QCAT 374
Cook's Construction P/L v SFS 007.298.633 Pty Ltd (formerly trading as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75
Ghama v Crew & Anor [2020] QCAT 149
Knox v Bellamy [2021] QCAT 192
Marshall v Marshall [1999] 1 Qd R 173
Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196
Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272
Williams v Stone Homes P/L & Anor [2014] QDC 64

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

REASONS FOR DECISION

Bushra Muqaddas (the Homeowner) says that she and her neighbours entered into informal agreements with Sapati Michael Faraimo (the Contractor) for work including the demolition and reconstruction of dividing fences and retaining walls and a gate at their homes. The Homeowner says that she paid amounts to the Contractor, he commenced the work but despite request failed to complete the works and that she and her neighbours have been required to engage other contractors to rectify and complete the works at additional cost.
The Homeowner applied for orders that the Contractor refund $2,950 paid to him by her, pay the cost to rectify and complete his defective and incomplete work and pay costs.[1]
[1]Application for domestic building disputes filed 1 September 2021 (the Application).
The evidence is that the Homeowner applied…

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 Muqaddas v Faraimo

Details

AGLC: Muqaddas v Faraimo [2022] QCAT 303
Case: [2022] QCAT 303
Decision Date

CaseChat Overview and Summary

Bushra Muqaddas (the Homeowner) sought a decision from the Queensland Civil and Administrative Tribunal (QCAT) that Sapati Michael Faraimo (the Contractor) refund $2,950 paid to him by her, pay the cost to rectify and complete his defective and incomplete work and pay costs. The Contractor failed to comply with directions to file a response to the Application. The Homeowner has requested a decision by default. The Contractor has also failed to comply with directions to file any statements of evidence. The Contractor has failed to engage in these proceedings at all. The Homeowner's evidence is undisputed. The evidence is that there were two 'projects'. The Contractor is to pay the Homeowner $4,350 in respect of the Back fence works and $1,250 in respect of the Left fence works. The Contractor is to pay damages for breach of contract in the sum of $3,000. The Contractor is to pay the Homeowner a total of $5,600.

Orders