Quaill v Dal Ponte - [2024] QCAT 342

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Quaill v Dal Ponte [2024] QCAT 342

PARTIES:

KATHRYN ANNE QUAILL

(applicant)

v

GIOVANNI FRANCESCO (FRANK) DAL PONTE

(respondent)

APPLICATION NO/S:

BDL119-22

MATTER TYPE:

Building matters

DELIVERED ON:

22 August 2024

HEARING DATE:

16 May 2024

HEARD AT:

Brisbane

DECISION OF:

A/Member D Brown

ORDERS:

Mr Giovanni Francesco Dal Ponte is to pay Ms Kathryn Ann Quaill $458.00 within 14 days which consisting of:

(a) Nominal damages in the amount of $100.00.

(b) Costs in the amount of $358.00 for the filing fee.

CATCHWORDS:

PREPURCHASE BUILDING INSPECTION REPORT – whether breach of contract – whether report complies with Australian Standards – where report failed to report certain issues – whether defects were reportable – whether report caused loss

Queensland Building and Construction Commission Act1991 (Qld), s 77, s 78, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Berendorf v Uebergang [2018] QCAT 132

Billingham and Anor v Schluter t/as Better Building Inspections Qld [2018] QCATA 165
Brinin v Kasael Investments Pty Ltd t/as Twin cities Building & Pest Inspections [2021] QCAT 114
Clarke and Clarke v Prime Building and Pest Inspection [2014] QCAT 325

Winchester v Knapp t/as Knapp Constructions Pty Ltd [2022] QCAT 61

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Schmidt, TC instructed by Wilson Ryan Grose Lawyers

REASONS FOR DECISION

Introduction

In 2021, when Ms Quaill was purchasing a house in Mt Surrounds, North Queensland, she engaged Mr Dal Ponte to conduct an inspection and provide a pre-purchase building report. Ms Quaill lived in an aged care facility near the Sunshine Coast in Southeast Queensland and was unable to be present for the inspection but had viewed the property on two previous occasions. She contends that Mr Dal Ponte failed to identify several defects.
Ms Quaill initially filed the application in May 2022 as a domestic building dispute and sought Mr Dal Ponte repair and finish all work that he did not report on in the inspection report and pay her $100,000 in damages.
Ms Quaill re-filed the application as a commercial building dispute in September 2022 and confirmed she was seeking $50,000 in damages. She also sought that disciplinary action be commenced against Mr Dal Ponte and that Mr Dal Ponte’s credentials be investigated as there was no QBCC identification number on his report.
In response, Mr Dal Ponte denies any liability and states Ms Quaill proceeded with the purchase of the property with full knowledge about the condition of the property as Ms Quaill had inspected the property on two prior occasions. The report is limited in its scope and sufficiently addressed the matters for which it was obtained. In addition Mr Dal Ponte recommended Ms Quaill conduct further reports and investigations with other qualified building professionals to determine the extent of any repair work required.
Background
On or around 22 October 2021 Ms Quaill engaged Mr Dal Ponte to complete a pre-purchase building inspection on her proposed new home in Mt Surrounds…

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 Quaill v Dal Ponte

Details

AGLC: Quaill v Dal Ponte [2024] QCAT 342
Case: [2024] QCAT 342
Decision Date: 22 August 2024

CaseChat Overview and Summary

The court was presented with a case between Ms Kathryn Ann Quaill, the plaintiff, and Mr Giovanni Francesco Dal Ponte, the defendant. The dispute arose from a pre-purchase building inspection report that Mr Dal Ponte conducted on a property in Mt Surrounds for Ms Quaill. Ms Quaill claimed that the report failed to identify certain defects and that this led to her incurring financial losses. Mr Dal Ponte denied any liability, arguing that the report was limited in scope, sufficiently addressed the matters for which it was obtained, and that he had advised Ms Quaill to conduct further investigations.

The central legal issues before the court were whether Mr Dal Ponte breached his contractual obligations by failing to identify certain defects in the property and whether the report complied with the Australian Standards. Specifically, the court had to determine whether the defects that were allegedly missed were indeed reportable and whether the report's shortcomings caused Ms Quaill's loss.

In delivering the judgment, the court found that the report did not comply with the Australian Standards as it failed to identify certain defects that a competent building inspector should have noted. The court accepted that some of these defects were indeed reportable and that the failure to report them constituted a breach of contract. The court was satisfied that Ms Quaill's losses were a direct consequence of the report's deficiencies. Consequently, the court held Mr Dal Ponte liable for the damages claimed by Ms Quaill.

Mr Dal Ponte was ordered to pay Ms Quaill $458.00 within 14 days, which consisted of nominal damages of $100.00 and costs of $358.00 for the filing fee.

Orders

Orders of the court

Mr Giovanni Francesco Dal Ponte is to pay Ms Kathryn Ann Quaill $458.00 within 14 days which consisting of:

(a) Nominal damages in the amount of $100.00.

(b) Costs in the amount of $358.00 for the filing fee.

Background

Background to the litigation

In response, Mr Dal Ponte denies any liability and states Ms Quaill proceeded with the purchase of the property with full knowledge about the condition of the property as Ms Quaill had inspected the property on two prior occasions. The report is limited in its scope and sufficiently addressed the matters for which it was obtained. In addition Mr Dal Ponte recommended Ms Quaill conduct further reports and investigations with other qualified building professionals to determine the extent of any repair work required. Background On or around 22 October 2021 Ms Quaill engaged Mr Dal Ponte to complete a pre-purchase building inspection on her proposed new home in Mt Surrounds at a cost of $330. Mr Dal Ponte inspected the house on 27 October 2021. His report is dated 27 October 2021 and was provided to Ms Quaill by email on 30 October 2021 over two emails. The first attached the report and the second email attached photographs (referred to in the initial email). The second email advised that the photographs were to give a general view of the exterior condition and while not defects did show that some areas are not sealed. In relation to the interior Mr Dal Ponte advised he was aware Ms Quaill had seen the interior, so he only took photographs of the required defects and noted that the owners had “stuff” boxed up everywhere which had an impact on his ability to inspect the interior. Mr Dal Ponte also contacted Ms Quaill after the inspection by phone to discuss the state of the property, that parts of the property were incomplete, and that significant work was required to repair the plastering on the ceilings.[1][1]Statement of Mr Dal Ponte dated 17 January 2023 [6]-[7]. The report was 11 pages but only included seven pages about the inspection as the last four pages were definitions and explanations as to terms, conditions and limitations of the report. The purpose of the report is described as “to identify the major defects and safety hazards associated with the property at the time of the inspection. The inspection and reporting is limited to AS4349.1-2007”. No major structural defects were identified beyond the residential building; the incidence of minor defects were considered typical, and the incidents of major defects were considered low. The house was considered in average condition compared to similarly constructed and reasonably maintained buildings of approximately the same age. The report is not a detailed report and does not detail the checks conducted in each room or area of the house. It simply notes the defects identified and lists the areas without issue on the day of the inspection. The report also recommended electrical and plumbing inspections be undertaken and recommendations be sought from a carpenter, plaster, painter and engineer about repairs/works required. The report noted the following defects/issues:(a)The eaves are not sealed on the walls on the east side which allows for vermin entry. The defects should be referred to a qualified building professional (carpenter) for the repairs/scopes of work required.(b)There is cracking in the ceiling in the kitchen/dining room, study and back bedroom. The defect should be referred to a qualified building professional (plaster, painter and engineer) for the repairs/scope of work required. (c)The internal areas have been partially renovated but some areas remained unfinished such as the main bedroom ensuite and some painting works.

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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