Portelli v Kereszteny - [2021] QCAT 228

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Portelli v Kereszteny [2021] QCAT 228

PARTIES: VICKI-ANN PORTELLI

(applicant)

v

ALEX KERESZTENY

(respondent)

APPLICATION NO/S:

BDL298-19

MATTER TYPE:

Building matters

DELIVERED ON:

14 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

1. Alex Kereszteny must pay Vicki-Ann Portelli the sum of $113,401.84 by 4pm on 21 July 2021; and

2. Alex Kereszteny must pay Vicki-Ann Portelli costs of $874.80 by 4 pm on 21 July 2021.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where builder performed unlicensed building work – where builder did not complete works – where defective work – where home owner entitled to recover money paid under Agreement plus damages to rectify and complete

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

A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319
Bellgrove v Eldridge (1954) 90 CLR 613
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2009] QCA 75
Faulks v. New World Constructions Pty Ltd (No. 2) [2014] QCAT 329
Marshall v Marshall [1999] 1 Qd R 173
Robinson v Harman [1848] Eng R 135
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
Budge & Anor v JMK Building Pty Ltd (No. 2) [2018] QCAT 199.
Zhang & Lin v Lane [2017] QCAT 366

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales[1982] HCA 24.

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)

REASONS FOR DECISION

What is this Application about?

Ms Portelli entered into an agreement with Mr Kereszteny. She agreed to a price of $55,800 and paid $46,800.00 to Mr Kereszteny for building works. Mr Kereszteny was not appropriately licensed. He did not complete the works and what he did complete was alleged to be defective.
Mr Kereszteny did not file a response to the claim or engage with the Tribunal process despite being afforded multiple opportunities to do so. On 29 October 2020 the Tribunal issued a direction stating that a final decision be issued in favour of Ms Portelli against Mr Kereszteny conditional upon assessment of damages.
These reasons set out the assessment of these damages.

Assessment of damages

Mr Kereszteny gave Ms Portelli two written agreements that had been signed by him. The first of these was on a form called the QBCC Minor Works Subcontract. This document included the following details: the project work was described as a bathroom extension and a walk-in wardrobe at an address in Brisbane. The price was $55,800, and Ms Portelli was listed as the principal and Mr Kereszteny as the contractor.
The second document, also dated 16 September 2017, was on a QBCC Minor Works Subcontract form. It included the following: the project work…

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: [2021] QCAT 228
Decision Date

CaseChat Overview and Summary

Vicki-Ann Portelli brought an application against Alex Kereszteny, alleging that he had failed to complete building works in accordance with their agreement, which was worth $55,800. Ms Portelli paid $46,800 to Mr Kereszteny for the works, but he did not complete the works and the work that he did complete was defective. Mr Kereszteny did not file a response to the claim or engage with the Tribunal process despite being afforded multiple opportunities to do so. The Tribunal found that the agreement was legally binding and that Mr Kereszteny had breached the agreement by not completing the works and by performing the work in a defective manner. The Tribunal assessed the damages payable by Mr Kereszteny to Ms Portelli. The Tribunal found that Ms Portelli was entitled to recover the amount she paid to Mr Kereszteny under the agreement, plus damages to rectify and complete the works. The Tribunal found that Ms Portelli was also entitled to recover costs incurred in the Tribunal process, including legal costs, and other costs attributable to Mr Kereszteny's breach of contract. The Tribunal ordered that Mr Kereszteny pay Ms Portelli $113,401.84 plus costs of $874.80 by 4pm on 21 July 2021.
The court was required to decide whether the agreement between the parties was legally binding, whether Mr Kereszteny had breached the agreement, and if so, what damages were payable by Mr Kereszteny to Ms Portelli. The court also had to determine what costs were recoverable by Ms Portelli. The court found that the agreement was legally binding and that Mr Kereszteny had breached the agreement by not completing the works and by performing the work in a defective manner. The court assessed the damages payable by Mr Kereszteny to Ms Portelli, finding that she was entitled to recover the amount she paid to him under the agreement, plus damages to rectify and complete the works. The court also found that Ms Portelli was entitled to recover costs incurred in the Tribunal process, including legal costs, and other costs attributable to Mr Kereszteny's breach of contract. The court ordered that Mr Kereszteny pay Ms Portelli $113,401.84 plus costs of $874.80 by 4pm on 21 July 2021.

Orders