Rakus v Bennett t/as Tough Floors - [2021] QCAT 328

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rakus v Bennett t/as Tough Floors [2021] QCAT 328

PARTIES: JASA RAKUS

(applicant)

v

EUAN DOUGLAS BENNETT T/AS TOUGH FLOORS

(respondent)

APPLICATION NO/S:

BDL035-20

MATTER TYPE:

Building matters

DELIVERED ON:

22 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

Euan Douglas Bennett t/as Tough Floors is to pay to Jasa Rakus the amount of Five Thousand Six Hundred and Thirty-Five Dollars and Fifty Cents ($5,635.50).

CATCHWORDS:

DUTY OF CARE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – DAMAGES AND CAUSATION – GENERALLY – where an owner relied upon the builder to provide an appropriate system of coating over an existing tiled floor – where breach of duty by builder in undertaking building work – assessment of damages

Queensland Building and Construction Commission Act (1991) Qld, s77(h)

Cerda v Jacob [2020] QCATA 57

Kirkby v Coote [2006] QCA 61

Bellgrove v Eldridge (1954) 90 CLR 613

APPEARANCES & REPRESENTATION:

Applicant:

Self-Represented

Respondent:

Self-Represented

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

Jasa Rakus (‘the owner’) contracted with Euan Douglas Bennett t/as Tough Floors (‘the builder‘) to apply an epoxy coating to the front patio and rear alfresco area of the owner’s home at Springfield Lakes in Brisbane.
The work involved the application of an epoxy coating over existing floor tiles.
The builder gave an initial quote number TF1292 dated 24 October 2015 to the owner for $4,635 (ex GST), which is $5,098.50 (incl. GST).
Two later quotes for the work dated 16 October 2016 were also given to the owner. Quotation number TF1292-1 as to the rear patio was for $3,240 (ex-GST). Quotation TF1400 as to the front patio was $860 (ex-GST). The total of those quotes was $4,100 (ex-GST), which is $4,510 (incl GST).
After the work was completed, the owner noted defects in the work, including visible ghosting lines, dents and bumps in the flooring, inconsistencies of topcoat application, missing flakes particularly around the edges, visible scratches of the surface and bubbling of the flooring.
The owner initially commenced an application for minor civil dispute in relation to the matter on 17 April 2009 seeking refund of the amount of $4,100.00 (excl GST), he subsequently sought to amend the amount claimed to $4,510 include GST. He also seeks the filing fee of $120.50.
The matter was transferred to the Building Disputes list of the Tribunal on 12 February 2020.
A direction was given on 1 October 2020 for the matter to be determined on the papers. These are the reasons, and decision, in the matter.

Owners submissions

The owner sent an email to the builder on 3 January 2017, shortly after the work was completed, as follows:
Thanks again for working over the holidays on our patio, we really appreciate it.
I just wanted to share some photos we took yesterday afternoon before…

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 328
Decision Date

CaseChat Overview and Summary

Jasa Rakus, the applicant, sought a refund from Euan Douglas Bennett t/as Tough Floors, the respondent, for the amount of $4,510 (including GST) in relation to work undertaken by the respondent to apply an epoxy coating over existing tiles on the patio and alfresco area of the applicant's home. The applicant claimed that the work was defective, and sought a refund or for the respondent to rectify the defects. The respondent disputed the applicant's claims. The Queensland Civil and Administrative Tribunal was required to decide whether the respondent had breached any duty of care owed to the applicant, and if so, to determine the appropriate remedy.

The tribunal found that the respondent had breached a duty of care owed to the applicant by recommending and providing an unsuitable system of coating over the tiles. The respondent had represented himself as an expert in coatings, and the applicant relied upon the respondent's expertise in proposing and providing an appropriate system of coating over the tiles. The respondent had not provided evidence that would contradict the applicant's contention that the system and materials used by the respondent were not suitable for the purpose of being used over existing tiles in an outdoor setting. The tribunal was satisfied that the respondent had breached a duty of care owed to the applicant.

The tribunal assessed the appropriate remedy for the breach of duty of care. The applicant sought a refund of the amount paid to the respondent, however had also obtained a quote for the installation of an alternative system, of removing the existing work and polishing the concrete for $5,115.00 (including GST). The tribunal found that the work could not be satisfactorily rectified, and the only option was to remove and replace the work. The applicant was entitled to recover the cost of removing the unsatisfactory work and replacing it with a suitable comparable finish. The respondent had not challenged that polishing the concrete would be a suitable comparable finish, and had not challenged the quote by OzGrind. The tribunal awarded the applicant the amount of the quote by OzGrind in the amount of $5,515.00, plus costs of $120.50.

The tribunal ordered that the respondent pay to the applicant the amount of $5,635.50 being an amount of $5,515 for damages plus costs of $120.50.

Orders