Pulitano v Mikescapes Pty Ltd

[2010] QCAT 248

Pulitano v Mikescapes Pty Ltd [2010] QCAT 248

PARTIES:	Filip & Anna Pulitano
v
Mikescapes Pty Ltd

APPLICATION NUMBER:   BD218-08     

MATTER TYPE: Building matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Dr Bridget Cullen Mandikos

DELIVERED ON: 7 June 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The Respondent, Mikescapes  Pty Ltd, to pay the Applicants’ Filip and Anna Pulitano, the sum of $12,012.00 no later than 4:00 pm on Friday, 9 July 2010.

CATCHWORDS :  Rectification of defective building work pursuant to contract, measure of quantum, Bellgrove v Eldridge (1954) 90 CLR 613; Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8.

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

Background

1. The Applicants in this matter, Filip and Anna Pulitano (“The Pulitanos”), entered into a contract with the Respondent, Mikescapes Pty Ltd (“Mikescapes”) for landscaping works at their Jasmine Crescent, Shailer Park, property. 

1. Following an oral hearing on 15 April 2010, I delivered an ex tempore decision in the Pulitano's favour, and ordered that the parties make written submissions as to the appropriate quantum of loss, with respect to the paving works that took place at the property.  The reason for the matter being part-heard with regard to the issue concerning quantum was that I was not satisfied with the material before QCAT on this issue.

1. Although there were allegations raised in the Pulitano’s Statement of Claim relating to a retaining wall and the proper planting of plants, at hearing, the matters that were disputed related to the paving works that took place at the property.  It was alleged that:

Pavers

1.        Pavers used in the works were broken, chipped and cracked;

2.        Mikescapes' workmanship was uneven, pavers were loose or became loose over time;

3.        Grout washing not completed in initial stages of the works;

4.        Grout washing completed in March 2007 was ineffective and failed to rectify the cracked pavers;

Driveway

1.        The works completed on the driveway at the worksite were uneven;

2.        Concrete laid on the surface of the driveway was uneven;

3.        Pavers laid on driveway were uneven, chipped and broken;

4.        Pavers on the driveway are not secure, and move when walked or driven on.

1. I have now received submissions on the issue of quantum from both parties. 

1. The Pulitano's annex to their solicitor's covering letter the affidavit of Mr Jason Flynn, of Brisbane's Prestige Walls, sworn to on 13 May 2010, together with one exhibit consisting of a quotation to "renew paved driveway and make good".

1. Mikescapes submission consists of a solicitor's covering letter, a solicitor's affidavit sworn to on 14 May 2010, and an exhibit from ADA Paving and Landscaping, in the form of a paving quote.

Appropriate measure of quantum

1. Prior to receipt of the parties' submissions on quantum, and following the hearing on 15 April 2010, I advised the parties that it was my view that the appropriate measure of loss in this matter would be the cost of rectification,…