Tracey v Olinderidge Pty Ltd - [2013] QCAT 401

CITATION:

Tracey & Anor v Olinderidge Pty Ltd & Anor [2013] QCAT 401

PARTIES:	Martha-lee Tracey and Todd Anthony Tracey (Applicants)
v
Olinderidge Pty Ltd and Rodney Wagner (Respondents)

APPLICATION NUMBER:

BDL136-11

MATTER TYPE:

Building matters

HEARING DATE:

9, 10 August 2012, 7, 27 March 2013

HEARD AT:

Bundaberg, Hervey Bay

DECISION OF:

David Lewis, Member

DELIVERED ON:

5 August 2013

DELIVERED AT:

Hervey Bay

ORDERS MADE:

1. The respondents Olindaridge Pty Ltd and Rodney Wagner pay the applicants Martha-lee Tracey and Todd Anthony Tracey the sum of $98,600.00 within 28 days.

2. The applicants must file and serve on the respondents by 6 September 2013, any claim for their costs of the application, together with their submissions on that claim, full particulars of the amounts claimed, and copies of relevant invoices.

3. The respondents may file and serve on the applicants any submissions with respect to the claim for costs by 27 September 2013.

4. Unless the tribunal otherwise orders, the claim for costs will be decided by the tribunal on the papers, and without an oral hearing, not before 27 September 2013.

CATCHWORDS:

Domestic building dispute – severe termite damage – defects in slab construction – defects in termite barrier – whether infestation arose from the defects.

Queensland Building Services Act 1999, s 72(8).

Tracey v Rodney Wagner Olindaridge Pty Ltd [2013] QCATA 048

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Martha-lee Tracey and Todd Anthony Tracey represented by Mrs Martha-lee Tracey in person.

RESPONDENT:

Olinderidge Pty Ltd and Rodney Wagner represented by Mr C M Hall of Hall Lawyers.

REASONS FOR DECISION

The applicants Mr and Mrs Tracey purchased a block of land in the attractive little seaside town of Woodgate, south of Bundaberg, in October 2001, intending to build their home there.
The respondent Olindaridge Pty Ltd (in the proceedings misnamed as Olinderidge Pty Ltd) was a licensed builder, trading as RK & CA Wagner, and Mr Wagner was its nominee and one of its directors.
On 12 November 2001, Mr and Mrs Tracey and Mr Wagner on behalf of Olindaridge as builder signed a contract for it to build a house for them. Construction began at about the same time, and practical completion was reached on 21 December 2001. The house was a typical low set brick veneer building on a concrete slab.
While the builder was the company Olindaridge, the construction was carried out by Mr Wagner and of course the builder’s subcontractors. One of those was Termimesh. Its role was to install a product called termimesh around the perimeter of the slab, and to penetrations in the slab. The product is a stainless steel mesh, which forms part of the physical barrier against termite penetration. The other part of that barrier is the slab itself.
In April 2008, the Traceys noticed odd things about their house. The cornices were dropping in places, and doors were binding. They did not understand the problem. However in September that year they discovered what looked like dirt coming…

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 Tracey v Olinderidge Pty Ltd

Details

AGLC: Tracey v Olinderidge Pty Ltd [2013] QCAT 401
Case: [2013] QCAT 401
Decision Date

CaseChat Overview and Summary

The applicants, Martha-lee Tracey and Todd Anthony Tracey, brought proceedings against the respondents, Olindaridge Pty Ltd and Rodney Wagner, in relation to a house built by the respondents on a block of land the applicants purchased. The applicants alleged that the house suffered severe termite damage due to defects in the construction of the slab and the termite barrier. The case proceeded through various stages, including amendments to the claim, the dismissal and reinstatement of Mr Wagner as a respondent, and the exclusion and inclusion of the slab height issue. The primary legal issues for the tribunal to decide were whether the slab defects caused the termite infestation, and if so, whether the respondents were liable for the damage.

The tribunal found that the evidence pointed to two points of entry for the termites: a hole in the ensuite shower floor and a point near a vent pipe close to the main bathroom. The respondents argued that these points had not been conclusively proven as entry points and that there may have been other causes of the infestation. The tribunal rejected these arguments, finding that the evidence overwhelmingly supported the applicants' case and that the respondents were liable for the damage caused by the termite infestation due to the defects in construction.

The tribunal calculated the amount of compensation to be awarded to the applicants. It considered various quotes for rectification costs and ultimately decided on an amount of $93,000, with an additional 10% allowance for contingencies. The tribunal also allowed $3,000 for alternative accommodation during the reconstruction and $2,600 for termite treatment costs. The tribunal ordered the respondents to pay the applicants the sum of $98,600 within 28 days, and set out procedures for the applicants to claim their costs and for the respondents to respond to that claim.

The tribunal found that the respondents owed a duty of care to the applicants and were in breach of that duty, resulting in the termite damage to the house. The applicants were awarded compensation in the amount of $98,600, to be paid within 28 days of the decision. The tribunal also set out procedures for the applicants to claim their costs and for the respondents to respond to that claim.

Orders