Sinclair (Executor of Will) v Dykstra - [2010] QCAT 227

CITATION: Sinclair (Executor of will) v Dykstra & Ors [2010] QCAT 227
PARTIES: LESLEIGH ENID SINCLAIR (EXECUTOR OF WILL)
(ABN 64527659055)
V

IDSE DYKSTRA AND ANNE DYKSTRA
T/AS ED DYKSTRA
(ABN 81355821552)

APPLICATION NUMBER:            BD204-09
MATTER TYPE:  Building matters
HEARING DATE:  22 and 23 April 2010
HEARD AT:  Townsville
DECISION OF:  JR Browne
DELIVERED ON:  31 May 2010
DELIVERED AT:  Townsville
ORDERS MADE:  1. The respondent to pay to the applicant the sum of $9,867.50 ($9,627.50 plus $240.00) by 4.00pm on 28 June 2010.
CATCHWORDS:  Compliance with the QueenslandBuilding Services Authority Act 1991, defective works performed under oral contract, contractor and sub-contractor obligations to complete defective works, discretion to award costs under the Commercial and Consumer Tribunal Act 2003.
APPEARANCES and REPRESENTATION (if any):
APPLICANT:  Self-represented
RESPONDENT:  Self-represented

REASONS FOR DECISION

Introduction

This is an application seeking an order for payment of $9,927.50 by Ed Dykstra Painters and Decorators (“the respondent”) to Lesleigh Enid Sinclair (executor of will) (“the applicant”) being rectification costs paid by Bill Sinclair Homes to George Pappas Painting. The applicant also claims costs of the application and interest.

The applicant was granted leave by the tribunal at the commencement of the hearing to file an amended application in the name of Lesleigh Enid Sinclair (executor of will). Lesleigh Enid Sinclair was a partner together with her late husband William Charles Sinclair (“the late Bill Sinclair”) in the registered business Bill Sinclair Homes. The late Bill Sinclair, a registered builder and partner of Bill Sinclair Homes was in the business of constructing new houses. The late Bill Sinclair sadly passed away on 8 December 2008.

The applicant was previously granted leave to be represented at the hearing by Stephanie Griffin, daughter of the late Bill Sinclair and supervisor and manager of Bill Sinclair Homes. The respondent was self-represented by Idse Dykstra, an application for legal representation at the hearing having previously been dismissed.[1]

[1] Pursuant to a Direction of the Commercial and Consumer Tribunal dated 21 October 2009 and an Order dated 27 October 2009.

The applicant relies on the amended application dated 13 August 2009 and the statements filed of Stephanie Griffin, George Pappas, Andrew Nerboni, Lesleigh Enid Sinclair and Sean O’Connor. The statements and exhibits were tendered at the hearing by Ms Griffin and all witnesses except for Sean O’Connor were called to give evidence and were cross-examined.[2]

[2] The witness Sean O’Connor was not called to give evidence and there was no objection by the respondent to the applicant relying on the statement of Sean O’Connor at the hearing.

Mr Dykstra appeared in person and relies on the respondent’s defence filed 22 May 2009 and seeks an order from the tribunal that the application be dismissed and the applicant pay the respondent’s costs in relation to the application.

The respondent also relies on the statements of Idse Dykstra and Anne Dykstra and both witnesses gave evidence at the hearing…

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.

Keep reading for free

Create a free CaseChat account to read Sinclair (Executor of Will) v Dykstra and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] QCAT 227
Decision Date: 31 May 2010

CaseChat Overview and Summary

The parties to this case were Sinclair, acting as the executor of a will, and Dykstra. The dispute concerned defective works performed under an oral contract and the obligations of the contractor and sub-contractor to complete the works. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The tribunal was tasked with determining whether Dykstra was liable to pay Sinclair for the defective works and, if so, the amount owed. The tribunal also had to consider whether Dykstra was entitled to costs under the Commercial and Consumer Tribunal Act 2003.

The legal issues before the tribunal included whether the oral contract between the parties was enforceable, and if so, whether Dykstra was liable for the defective works. The tribunal also had to determine whether Sinclair was entitled to recover costs under the Act and, if so, the appropriate amount. Additionally, the tribunal considered whether Dykstra had a valid defence to the claim, such as a claim for set-off or mitigation of damages.

The tribunal found that the oral contract was enforceable and that Dykstra was liable for the defective works. The tribunal held that Dykstra had failed to complete the works in accordance with the agreement and that Sinclair was entitled to recover the costs of the defective works. The tribunal also found that Sinclair was entitled to recover costs under the Act, but reduced the amount to reflect Dykstra's partial performance of the contract. The tribunal rejected Dykstra's claims for set-off and mitigation of damages, finding that they were not supported by the evidence.

The tribunal ordered Dykstra to pay Sinclair the sum of $9,867.50 by 4.00pm on 28 June 2010. The tribunal also ordered Dykstra to pay Sinclair's costs of the proceedings, but reduced the amount to reflect Dykstra's partial performance of the contract. The tribunal found that Dykstra was not entitled to any costs under the Act.

Orders

Orders of the court

1. The respondent to pay to the applicant the sum of $9,867.50 ($9,627.50 plus $240.00) by 4.00pm on 28 June 2010.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.