Richards v Garner
[2015] QCAT 416
•2 November 2015
| CITATION: | Richards v Garner [2015] QCAT 416 |
| PARTIES: | Dionne Elizabeth Richards (Applicant) |
| v | |
| Neil Robert Garner (Respondent) |
| APPLICATION NUMBER: | BDL083-15 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Brown |
| DELIVERED ON: | 2 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Neil Robert Garner pay to Dionne Elizabeth Richards the sum of $15,758.00 |
| CATCHWORDS: | Building matters - damages – decision by default – unliquidated damages Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Dionne Richards is the owner of a house in Maryborough (‘the house’). Ms Richards engaged Neil Garner to undertake works in respect of the house including:
a) Constructing a new back deck;
b) Replacing a number of stumps;
c) Installing a glass sliding door (‘the works’).
After the works were completed, Ms Garner complained that the works had been carried out in a defective and unworkmanlike manner.
Ms Garner complained to the Queensland Building and Construction Commission (‘the QBCC’).
An Initial Inspection Report was prepared by the QBCC identified the following defects in respect of the works (‘the defects’):
a) The southern corner of the kitchen had been lifted approximately 70mm resulting in the compromise of the structural integrity of the dwelling;
b) The cranked bolts connecting the bearer to the posts in the kitchen had been detached;
c) The metal termite caps had been removed from a number of the stumps;
d) Replacement of stump with an unsuitable stump which had not been installed correctly;
e) The installation of timber decking which was of an unsuitable cosmetic finish;
f) Steel posts on the deck had not been connected correctly to the timber bearers;
g) Steel posts installed were not in accordance with the Building Code of Australia;
h) The sliding door had been installed out of level and out of square.
Ms Richards filed an application in the Tribunal on 4 May 2015 seeking restitution in respect of the defects and the recovery of the filing fees on the application.
The Tribunal directed Mr Garner to file and serve his response to Ms Richards’s application by 16 June 2015. Mr Garner failed to comply with this direction.
A compulsory conference was scheduled at which Mr Garner failed to appear.
On 23 September 2015 the Tribunal made directions:
a) Permitting substituted service on Mr Garner; and
b) Requiring the filing of a response by Mr Garner and an explanation for his failure to attend at the compulsory conference.
Mr Garner failed to comply with the directions.
In accordance with direction 4 of the directions made 23 September 2015, and in the absence of Mr Garner filing a response to the application, Ms Garner has applied to the Tribunal for a decision by default.
Ms Garner has produced three quotes for the required rectification works. Those quotes are for $9,400.00, $12,550.00 and $11,758.00.
It is clear from the quotes that most if not all of the work undertaken by Mr Garner will be required to be demolished or removed. Ms Garner also claims the repayment of the monies she has paid to Mr Garner.
Ms Richards claims an amount of $500.00 being lost wages, bailiff’s fees and phone bills and postage. This claim is not particularised further.
Mr Garner has not paid any monies to Ms Richards in respect of the cost of the rectification of the defects.
The amount allowed for the rectification works is $11,758.00 being neither the highest nor the lowest of the submitted quotes and is therefore the most reasonable basis to permit recovery. Ms Garner is also entitled to recover the amount paid to Mr Garner on the basis that most if not all of the works he carried out will be required to be demolished or replaced and undertaken again.
The claim for $500.00 is not allowed on the basis that the amounts in respect of lost wages, postage and phone calls are not recoverable. Any amount claimed in respect of bailiff’s fees is not particularised and therefore cannot be allowed.
The decision of the Tribunal is that Neil Robert Garner pay to Dionne Richards:
a) Damages for undertaking rectification of the defective painting works $11,758.00
b) Repayment of monies paid by Ms Richards to Mr Garner $ 4,000.00
TOTAL $15,758.00
Accordingly there is judgement for Ms Richards in the total amount of $15,758.00.
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