Sharma v The Dirt Guys - [2019] QCAT 279

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sharma v The Dirt Guys [2019] QCAT 279

PARTIES: AWADHESH KUMAR SHARMA

(applicant)

v

THE DIRT GUYS PTY LTD

(respondent)

APPLICATION NO/S:

BDL214-18

MATTER TYPE:

Building matters

DELIVERED ON:

17 September 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:
1. The Dirt Guys Pty Ltd must pay Awadhesh Kumar Sharma FIFTY-SEVEN THOUSAND, TWO HUNDRED AND NINETY-THREE DOLLARS AND SIXTY-FIVE CENTS ($57,293.65) within fourteen (14) days.

2. The Dirt Guys Pty Ltd must pay Awadhesh Kumar Sharma’s costs fixed in the amount of FOUR HUNDRED AND NINE DOLLARS AND FORTY CENTS ($409.40) within fourteen (14) days.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DAMAGES – MEASURES OF – where contract entered into for the performance of building work – assessment of damages

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – where failure by respondent to comply with tribunal directions – where applicant unnecessarily disadvantaged by respondent’s failure to comply with tribunal directions – whether applicant entitled to final decision – whether costs should be awarded in favour of applicant

Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 42.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48(1)(a), s 48(2)(b)(ii), s 48(3), s 100.

Bellgrove v Eldridge (1954) 90 CLR 613.

Cedar Meats Pty Ltd v Five Star Lamb Pty Ltd [2013] VSC 164
Dunlop Pneumatic Tyre CO Ltd v New Garage and Motor Co Ltd [1915] AC 79.
Forestry Commission of NSW v Stefanetto (1976) 133 CLR 507.

Lester v White [1992] 2 NZLR 483.

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.

Mertens v Home Freehold Co [1921] 2 KB 526.

Ventura v Svirac [1961] WAR 63.

REPRESENTATION:

Applicant:

Self-represented

Respondent:

No appearance

APPEARANCES:

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

Mr Sharma entered into a contract with The Dirt Guys Pty Ltd (TDG) for the performance of building work. The parties fell into dispute. Mr Sharma has commenced proceedings in the Tribunal. TDG has not filed a response or played any active part in the proceedings.
The background
On 12 January 2018 the parties entered into a written contract (the contract) for the performance of building work by TDG (the building works).[1] The contract was the standard QBCC Level 2 Renovation, Extension and Repair Contract. The contract included the General Conditions included in the Homeowner’s and Contractor’s Booklets dated August 2017, and any special conditions. The contract contained no special conditions.
[1]QBCC Level 2 Renovation, Extension and Repair Contract, dated 12 January 2019.
The contract provided that the scope of the building works was ‘as per quote 1275 and in accordance with the plans supplied.’ Quote 1275 referred to the following building works:
(a)2 flights of stairs as per plans supplied front and back;
(b)Concrete slab to under…

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 Sharma v The Dirt Guys

Details

AGLC: Sharma v The Dirt Guys [2019] QCAT 279
Case: [2019] QCAT 279
Decision Date: 17 September 2019

CaseChat Overview and Summary

Mr Sharma brought an action against The Dirt Guys Pty Ltd (TDG) in the Queensland Civil and Administrative Tribunal (QCAT) for breach of contract in relation to building work. TDG failed to respond to Mr Sharma's application or engage in the proceedings. The legal issues before the Tribunal were whether Mr Sharma was entitled to a final decision due to TDG's failure to comply with Tribunal directions, and if so, whether Mr Sharma was entitled to terminate the contract and recover the contract price. The Tribunal found that TDG's failure to comply with the Tribunal's directions caused Mr Sharma unnecessary disadvantage, and that Mr Sharma was entitled to a final decision. The Tribunal also found that Mr Sharma was entitled to terminate the contract and recover the contract price, which was $57,293.65. Additionally, the Tribunal ordered TDG to pay Mr Sharma's costs in the amount of $409.40.

Orders

Orders of the court

1. The Dirt Guys Pty Ltd must pay Awadhesh Kumar Sharma FIFTY-SEVEN THOUSAND, TWO HUNDRED AND NINETY-THREE DOLLARS AND SIXTY-FIVE CENTS ($57,293.65) within fourteen (14) days.

2. The Dirt Guys Pty Ltd must pay Awadhesh Kumar Sharma’s costs fixed in the amount of FOUR HUNDRED AND NINE DOLLARS AND FORTY CENTS ($409.40) within fourteen (14) days.

Background

Background to the litigation

Mr Sharma entered into a contract with The Dirt Guys Pty Ltd (TDG) for the performance of building work. The parties fell into dispute. Mr Sharma has commenced proceedings in the Tribunal. TDG has not filed a response or played any active part in the proceedings. The background On 12 January 2018 the parties entered into a written contract (the contract) for the performance of building work by TDG (the building works).[1] The contract was the standard QBCC Level 2 Renovation, Extension and Repair Contract. The contract included the General Conditions included in the Homeowner’s and Contractor’s Booklets dated August 2017, and any special conditions. The contract contained no special conditions. [1]QBCC Level 2 Renovation, Extension and Repair Contract, dated 12 January 2019. The contract provided that the scope of the building works was ‘as per quote 1275 and in accordance with the plans supplied.’ Quote 1275 referred to the following building works:(a)2 flights of stairs as per plans supplied front and back;(b)Concrete slab to under storey area as per plan including driveway and cross over;(c)141.25m2 of treated pine timber battens as per the plans designed with 2 gates to car access area. The contract was signed by the parties and dated 12 January 2018. The starting date for the building works was 15 January 2018. The date for completion was 30 days from 15 January 2018. The contract price was $30,910 payable by 7 instalments, including the initial deposit. The contract documents included the plans and specifications supplied by the owner and the foundations data supplied by the builder. The building works commenced on 15 January 2018.[2][2]Statement of Awadhesh Kumar Sharma, filed 2 March 2019, 1 [f]. Mr Sharma says that the parties agreed to a variation of the building works however the agreed variation was not recorded in writing. The variation consisted of completing plumbing work for an additional amount of $6,050. Mr Sharma says that the works ceased on 22 June 2018[3] and that he terminated the contract on 14 July 2018.[4][3]Ibid, 1 [g].[4]Ibid, 1 [h]. Mr Sharma says that:[5](a)The stairs as constructed did not accord with the design requirements;(b)Preparatory works for the concrete slab did not follow the plan;(c)Preparatory works for the construction of the battens did not follow the plan.[5]Ibid, 2 [i]. Mr Sharma says that the building works and the variation works were defective and the totality of the building work was required to be undertaken again. He says that he was required to engage contactors to undertake the required works and has incurred expense as a result. ConsiderationMr Sharma’s entitlement to a final decision The Tribunal may, where a respondent in a proceeding causes unnecessary disadvantage to an applicant by not complying with Tribunal directions or orders without reasonable excuse, make a final decision in favour of the applicant.[6][6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48(1)(a), s 48(2)(b)(ii).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Sharma says that the building works and the variation works were defective and the totality of the building work was required to be undertaken again. He says that he was required to engage contactors to undertake the required works and has incurred expense as a result. ConsiderationMr Sharma’s entitlement to a final decision The Tribunal may, where a respondent in a proceeding causes unnecessary disadvantage to an applicant by not complying with Tribunal directions or orders without reasonable excuse, make a final decision in favour of the applicant.[6][6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48(1)(a), s 48(2)(b)(ii). I am satisfied that the Application for domestic building dispute was served on TDG.[7] I am satisfied that TDG has, without reasonable excuse, failed to comply with Tribunal directions, and specifically has failed to file a response to Mr Sharma’s application. I am satisfied that Mr Sharma is being unnecessarily disadvantaged by TDG’s failure to file a response. The specific disadvantage is that Mr Sharma is being prevented from progressing his claim to a final determination. I have had regard to the matters set out at s 48(3) of the Queensland Civil and Administrative Tribunal Act 1991 (Qld) (QCAT Act). TDG has not engaged in the proceedings in any way which appears to be a deliberate act. I am satisfied that Mr Sharma is entitled to a final decision in the proceedings. [7]Affidavit of service, filed 28 August 2018.Jurisdiction I am satisfied that TDG was a building contractor and that Mr Sharma was a building owner, that the building work performed by TDG was domestic building work and that the dispute between the parties is a domestic building dispute. I am satisfied that the Tribunal has jurisdiction to hear and decide the dispute. Mr Sharma’s entitlement to terminate the contract Mr Sharma terminated the contract by notice to TDG dated 14 July 2018. The contract included the General Conditions for QBCC level 2 contracts and the plans, specifications and foundations data.[8] Clause 26 of the General Conditions provides that if a party is in substantial breach of the contract and the other party gives a notice to remedy the breach and such breach is not remedied within 10 business days of the giving of the notice, the party not in breach may give notice terminating the contract. Clause 26.4(d) of the contract provides that a substantial breach by the contractor includes unreasonably failing to perform the work diligently or unreasonably delaying, suspending or failing to maintain reasonable progress. [8]Although not in evidence, the General Conditions are available on the QBCC website. The General Conditions, like the Schedule which is in evidence, are dated August 2017. I have reference to General Conditions pursuant to s 28(3)(c) of the QCAT Act. The notice to remedy breach is not before the Tribunal. However the notice of termination refers to the ‘final notice’ (presumably a reference to the notice given pursuant to clause 26.1(b) of the contract) as having been given on 26 June 2018. The notice of termination refers to the failure by TDG to ‘complete the work up till now, which is a substantial breach by the contractor.’