Usher v Innovation Pools Pty Ltd - [2024] QCAT 305

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Usher v Innovation Pools Pty Ltd [2024] QCAT 305

PARTIES:

ROBBIE JON USHER

(applicant)

ELIZABETH KAY USHER

(applicant)

v

INNOVATION POOLS PTY LTD

(respondent)

APPLICATION NO/S:

BDL308-22

MATTER TYPE:

Building matters

DELIVERED ON:

1 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member D Brown

ORDERS:

1.   Innovation Pools Pty Ltd is to pay Robbie Usher and Elizabeth Usher $30,819.17 within 30 days, which consists of:

(a)     Damages of $30,452.17 consisting of:

(i)        $23,760.00 to replace the retaining wall and boundary fence;

(ii)      $4,510.44 for new approvals and certification;

(iii)     $1,430.00 for the engineering report;

(iv)      $600.00 for temporary fencing; and

(v)       $151.73 for replacement pumps.

(b)     Costs in the amount of $367.00 for the filing fee.

2.   The counter application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where contract for swimming pool – where heavy rain event – whether work is defective – whether the owner was entitled to recover for damage caused by the building contractor for defective work – where claim for solatium sought – where restitution in the return of deposit sought – where interest claimed on damages.

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Building and Construction Commission Regulations 2018 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Baltic Shipping Company v Dillon (1993) 176 CLR 344

Bellgrove v Eldridge [1954] HCA 36
Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146

Mann v Paterson Construction PtyLtd [2019] HCA 32

Miller v Lida Build Pty Ltd [2015] QCATA 137
Stewart v Scott trading as Fantasy Pools Brisbane [2020] QCAT 110
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 253 ALR 1

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

The applicants, Mr Robbie Usher and Mrs Elizabeth Usher, lodged an application for a domestic building dispute on 18 October 2022 seeking the respondent, Innovation Pools Pty Ltd, pay them $66,045.25 being damages in the amount of $63,191.25, restitution in the amount of $2,487.00 and costs of the filing fee in the amount of $367.00.
The applicants entered into a contract with the respondent company for the construction of a concrete pool in their Rochedale South property on 4 September 2021. The work commenced on 1 October 2021. The contract amount was $50,470.00 The applicants have made payments of $16,071.71, which included an initial deposit of $2,487.00.
Between 1 October 2021 and 5 October 2021 the excavation of the pool was undertaken. Between 5 October and 11 October work was undertaken on the excavation site, including plumbing and commencing installation of the steel reinforcement. On 11 October 2021 in anticipation of rainfall the respondent covered the area with a black…

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 Usher v Innovation Pools Pty Ltd

Details

AGLC: Usher v Innovation Pools Pty Ltd [2024] QCAT 305
Case: [2024] QCAT 305
Decision Date: 1 August 2024

CaseChat Overview and Summary

In the case of Usher v Innovation Pools Pty Ltd, the plaintiffs, Robbie and Elizabeth Usher, sought damages and restitution from the defendants, Innovation Pools Pty Ltd, for defective work performed during the construction of a swimming pool at their property. The dispute was heard in the County Court of Victoria. The plaintiffs alleged that the defendants' work was defective, resulting in damage to their property due to heavy rain and sought damages for the cost of repairs, solatium, and the return of the deposit paid to the defendants, as well as interest on the damages awarded.

The court was required to determine whether the work performed by the defendants was indeed defective, and if so, whether the plaintiffs were entitled to recover damages for the resulting damage to their property. The court also needed to assess the claim for solatium, the restitution of the deposit, and the interest on the damages claimed by the plaintiffs. The defendants denied the allegations of defective work and argued that they had performed the contract to the required standard.

The court found that the defendants had indeed performed defective work, which resulted in damage to the plaintiffs' property during a heavy rain event. The court awarded the plaintiffs damages in the amount of $30,452.17 for the cost of repairs to the retaining wall and boundary fence, new approvals and certification, an engineering report, temporary fencing, and replacement pumps. The court also awarded costs of $367.00 for the filing fee, bringing the total amount to $30,819.17. The plaintiffs' claim for solatium and the return of the deposit was dismissed, as was their claim for interest on the damages. The defendants' counter application was also dismissed.

Orders

Orders of the court

1. Innovation Pools Pty Ltd is to pay Robbie Usher and Elizabeth Usher $30,819.17 within 30 days, which consists of:

(a) Damages of $30,452.17 consisting of:

(i) $23,760.00 to replace the retaining wall and boundary fence;

(ii) $4,510.44 for new approvals and certification;

(iii) $1,430.00 for the engineering report;

(iv) $600.00 for temporary fencing; and

(v) $151.73 for replacement pumps.

(b) Costs in the amount of $367.00 for the filing fee.

2. The counter application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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