Newnham Constructions Pty Ltd v Anikin - [2022] QCAT 374

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Newnham Constructions Pty Ltd v Anikin & Anor [2022] QCAT 374

PARTIES:

newnham constructions pty ltd

(applicant)

v

denis anikin
elena anikin

(respondents)

APPLICATION NO/S:

BDL179-21

MATTER TYPE:

Building matters

DELIVERED ON:

18 October 2022

HEARING DATE:

12 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1.     Denis Anikin and Elena Anikin are to pay Newnham Constructions Pty Ltd the sum of $2,600.40.

2.     The Registry is directed to provide a copy of this decision to the Master Builders Queensland and the funds held by the Master Builders Queensland in the amount of $2,600.40 are to be paid to Newnham Constructions Pty Ltd in satisfaction of order 1.

3.     Denis Anikin and Elena Anikin are to pay Newnham Constructions Pty Ltd’s costs fixed in the sum of $358 by 4.00pm on 18 November 2022.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – domestic building dispute – where builder performed work – whether amounts paid to be repaid – whether work performed was in breach of contract – whether proposed method of rectification both necessary and reasonable

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38(2), s 100, s 102, s 105, s 107
Queensland Civil and Administrative TribunalRegulation 2019 (Qld), s 5, s 8
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86
Bellgrove v Eldridge (1954) 90 CLR 613
Campbell v Queensland Building and Construction Commission [2021] QCATA 34
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272

APPEARANCES & REPRESENTATION:

Applicant:

Mr S Newnham

Respondents:

Mr D Anikin

REASONS FOR DECISION

Denis and Elena Anikin have had an unfortunate and stressful experience in renovating their home. Their expectations have not been met on multiple occasions. They successfully made a claim against the Queensland Building and Construction Commission (QBCC) statutory insurance scheme (SIS) in relation to works performed at their home by a previous contractor. The QBCC prepared a scope of works[1] and arranged for Newnham Constructions Pty Ltd, a licensed contractor, to perform those rectifying works in the Anikins’ home. The Anikins signed a contract dated 3 March 2021 with Newnham Constructions (Rectifying Contract) for $19,145.10.[2]
[1]Exhibit 5, attachment SN1.
[2]Ibid, attachment SN2.
Newnham Constructions also contracted to perform a small amount of additional work for the Anikins for $2,600.40. The signed contract is also dated 3 March 2021 (Extra Contract).[3] Under the Extra Contract payment was due upon completion of the works.[4] The parties agreed for the Master Builders Queensland (MBQ) to hold the money to be released by mutual consent or relevantly by order of a tribunal. The parties agreed that any interest on the deposit was to be…

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 Newnham Constructions Pty Ltd v Anikin

Details

AGLC: Newnham Constructions Pty Ltd v Anikin [2022] QCAT 374
Case: [2022] QCAT 374
Decision Date

CaseChat Overview and Summary

Newnham Constructions Pty Ltd brought an application against Denis and Elena Anikin in the Queensland Civil and Administrative Tribunal (QCAT) seeking payment for work performed under two contracts. The first contract, the Rectifying Contract, was for $19,145.10 and related to rectifying works under a scope of works prepared by the Queensland Building and Construction Commission (QBCC) to address issues arising from previous works performed by another contractor. The second contract, the Extra Contract, was for $2,600.40 for additional work. The Anikins paid $2,600.40 to Master Builders Queensland to be held in trust pending resolution of the dispute. Newnham Constructions submitted that it had completed the works under both contracts and that the Anikins refused to allow the moneys held in trust to be released. The Anikins disputed Newnham Constructions’ entitlement to payment and counterclaimed for a refund of the amounts paid. The issues for determination were whether Newnham Constructions breached the Rectifying Contract or the Extra Contract and if so, what damages are payable. The Tribunal found that Newnham Constructions did not breach either contract and that the Anikins were required to pay the amount claimed under the Extra Contract. The Tribunal found that Newnham Constructions was not entitled to be paid for inspection works. The Tribunal exercised its discretion to award costs to Newnham Constructions fixed at $358.

The Tribunal ordered that Denis and Elena Anikin pay Newnham Constructions Pty Ltd the sum of $2,600.40 in respect of the Extra Contract. The Registry was directed to provide a copy of this decision to the Master Builders Queensland and the funds held by Master Builders Queensland in the amount of $2,600.40 were to be paid to Newnham Constructions Pty Ltd in satisfaction of the order. Denis and Elena Anikin were to pay Newnham Constructions Pty Ltd’s costs fixed in the sum of $358 by 4.00pm on 18 November 2022.

Orders