Nazzari v Gray - [2023] QCAT 156

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nazzari & Anor v Gray [2023] QCAT 156

PARTIES:

GRAHAM NAZZARI AND RACHAEL COSSENS

(applicants)

v

JOHN GRAY

(respondent)

APPLICATION NO/S:

BDL 001-20

MATTER TYPE:

Building matters

DELIVERED ON:

11 May 2023

HEARING DATE:

31 October 2022

1 November 2022

HEARD AT:

Townsville

DECISION OF:

Member Taylor

ORDERS:

1.     The respondent is to pay to the applicants $197,681.24 in damages for breach of contract.

2.     The applicants’ claim for an order that the respondent provide a Form 15 Compliance Certificate for truss design, a Form 16 Inspection Certificate for truss installation, and a Form 21 Final Inspection Certificate, is dismissed.

3.     Costs are reserved.

4.     Should the parties not agree on the issue of costs within 21 days of the date of this order, the issue of costs will be determined by this Tribunal in accordance with the following directions:

(a)     The applicants are to file 2 copies and serve 1 copy on the respondent of any further material upon which they seek to rely, together with their submissions, on costs within 28 days of the date of this order.

(b)     The respondent is to file two copies and serve one copy on the applicants any further material on which he seeks to rely, together with his submissions, on costs including his reply (if any) to the applicants’ submissions, within 14 days of being served with the applicants’ material and submissions.

(c)     The applicants are to file two copies and serve one copy on the respondent of their submissions in reply (if any), within 7 days of being served with the respondent’s material and submissions.

(d) Unless either party requests a hearing on costs within their submissions filed as per (a) to (c) herein, the issue of costs will thereafter be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – homeowners allege substantial defects in building works constructed by the builder – no claim for rectification – claim is for payment of damages for rectification – builder denied the work was defective – builder did not make alternative claim for rectification - whether building work is defective – whether as-built work was a permissible deviation from the contract plans and specification - whether the cost of cure or diminution in value was the proper level of remedy – where there was an absence of evidence as to the proposed remedial action being reasonable – where a Form 16 Inspection Certificate provided covered defective building work – where a Form 21 Final Inspection was not provided – where the homeowners asserted the absence of the Form 16 and/or Form 21 was incomplete building work – whether the respondent builder should be ordered to complete the work by providing the Form 16 and Form 21

Building Act 1975 (Qld), s 10

Building Regulation

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 Nazzari v Gray

Details

AGLC: Nazzari v Gray [2023] QCAT 156
Case: [2023] QCAT 156
Decision Date

CaseChat Overview and Summary

Nazzari and Cossens (the applicants) brought a claim for damages for breach of contract against Gray (the respondent). The applicants alleged that the respondent, as builder, had constructed their house in a defective manner. They did not seek an order for rectification but rather they claimed payment of damages against the respondent premised on breach of contract, more particular a breach of warranties given under contract as imposed via statute. The respondent denied the work was defective. He defended the claim in its entirety denying liability for payment of any damages. Although he conceded in his defence that some of the allegedly defective work required some attention in terms of remedial work, he did not seek within his defence on those issues, or in the alternative to any of the remaining issues, relief by way of an order that he be permitted to rectify the work in question. Rather, he maintained a blanket denial of liability for any breach of contract. He did so at his peril. The dispute turned on expert opinion evidence. The evidence of the applicants’ two experts was reasonably well presented and of assistance to the Tribunal in understanding the substantive factual disputed issues for which the claim was being pressed. It was not seriously challenged either by competing expert opinion evidence or under cross-examination. In contrast, the evidence of the respondent’s singular expert was of no effective assistance save only for where, under cross-examination, he made concessions which favoured the applicants. The Tribunal was entirely satisfied that the building work performed by the respondent was substantially defective. The outcome of this proceeding is thus against the respondent. The Tribunal’s decision is that he must pay to the applicants $197,681.24 in damages for breach of contract. The applicants have also claimed costs. The Tribunal’s decision on costs is reserved pending submissions on this aspect of the claim should the parties not otherwise be able to reach an agreement on it.

Orders