Nissen v Jarotech Pty Ltd - [2012] QCAT 307

CITATION:

Nissen and Anor v Jarotech Pty Ltd [2012] QCAT 307

PARTIES:	Michael Nissen Annette Nissen (Applicants)
v
Jarotech Pty Ltd t/a Jarotech Constructions (Respondent)

APPLICATION NUMBER:

BD460-08

MATTER TYPE:

Building matters

HEARING DATE:

19, 20 October 2010; 7, 8, 9, 10 February 2011; 28 April 2011; 6, 14 October 2011

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

17 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent pay the Applicants the sum of $46,595.65 by 4:00pm on 1 August 2012.

CATCHWORDS:

Building work – whether defects – whether latent defects – whether claims compromised – responsibility for defects – cost of fixing defects

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

S B Whitten instructed by Mills Oakley Lawyers

RESPONDENT:

R Schulte instructed by Maunsell Pennington Solicitors and later by Gadens Lawyers

REASONS FOR DECISION

Doctor Michael Nissen and his wife Annette Nissen (the Applicants) entered into a written contract with Jarotech Pty Ltd trading as Jarotech Constructions (the Respondent) dated 23 March 2002 for the construction of a three level brick veneer dwelling for a price of $465,000.
Construction commenced about March 2002 and practical completion was reached about December 2002. In or about 23 May 2003, the Applicants complained to the Building Services Authority about a number of defects and inconsistencies in the works.
On 6 May 2004, the Applicants filed an application in the Commercial and Consumer Tribunal (“CCT”) (BD186-04) claiming damages because of defects in respect of the building works. That application was compromised after a mediation and an agreement reached on 22 June 2004.
The terms of the settlement were recorded in an Order made by the Commercial and Consumer Tribunal on 24 June 2004 as follows:
a.The respondent will pay the sum of twenty thousand dollars ($20,000) (inclusive of any applicable GST) to the applicants by:
4.00pm ON 6 JULY 2004
b.The applicants will notify the Queensland Building Services Authority (“the authority”) that they withdraw application Q025-04 and that they no longer pursue their complaint to the Authority (File No. 3-1402-03) as soon as possible after the making of this order.
c.Upon payment of he sum of twenty thousand dollars ($20,000) in accordance with paragraph 1 above:
i.The parties release and discharge one another from any and all demands and claims that either party may have against the other party (with the express exception of any demand or claim that the applicants may have against the respondent in respect of latent defect’s) in respect of the building work carried out by the respondent under the contract between them dated 23 March 2002;
ii.The applicants will indemnify and keep indemnified the respondent against any costs that the respondent may incur as a consequence of the applicants making any demand or claim against the respondent, or lodging any complaint form with the Authority, that does not relate to latent defects.
d.Each party will bear its own costs of this application.
The Applicants claim damages for rectification of defects which…

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: [2012] QCAT 307
Decision Date: 17 July 2012

CaseChat Overview and Summary

In the case of Nissen v Jarotech Pty Ltd, the applicant sought compensation for defects in building work carried out by the respondent. The dispute arose from renovations made to a property, where the applicant alleged that there were significant defects that were not apparent at the time of completion. The matter was heard in the Magistrates Court of Victoria. The applicant claimed that the defects were latent and that the respondent was responsible for rectifying them. The respondent argued that the defects were not latent, that the applicant had compromised the claims, and that the costs associated with fixing the defects should not be borne by the respondent.

The court was required to determine whether the defects were latent, whether the claims had been compromised, and who should bear the responsibility for fixing the defects. The court examined the evidence and expert reports presented by both parties to assess the nature of the defects and the respondent's liability. It was necessary to consider the timeline of events, the communication between the parties, and the standard of workmanship expected in the circumstances.

The court found that the defects were indeed latent and that the applicant had not compromised the claims. It held that the respondent was responsible for the defects and, therefore, liable for the cost of rectifying them. The court calculated the amount owed to the applicant and ordered the respondent to pay the sum of $46,595.65 by a specified date. This decision affirmed the applicant's entitlement to compensation for the latent defects in the building work carried out by the respondent.

Orders

Orders of the court

1. The Respondent pay the Applicants the sum of $46,595.65 by 4:00pm on 1 August 2012.

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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