Vaiao & Anor v Sharkie

Case [2019] QCAT 264

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Vaiao & Anor v Sharkie [2019] QCAT 264

PARTIES:

MARK VAIAO AND JANE VAIAO
(applicants)
v

JAMES THOMAS SHARKIE T/AS JAMES SHARKIE CONSTRUCTIONS

(respondent)

APPLICATION NO:

BDL300-18

MATTER TYPE:

Building matters

DELIVERED ON:

4 September 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

James Thomas Sharkie t/as James Sharkie Constructions must pay Mark Vaiao and Jane Vaiao TWELVE THOUSAND, TWO HUNDRED AND TWENTY-SIX DOLLARS AND FORTY-FOUR CENTS ($12,226.44) by 4:00pm on 1 October 2019.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY - where domestic building contract does not comply with Schedule 1B of The Queensland Building and Construction Commission Act 1991 (Qld) – whether requirement for signature satisfied by electronic correspondence in accordance with the Electronic Transactions (Queensland) Act 2001 (Qld) - whether breach of contract

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHERS – where homeowner vulnerable – whether builder owed duty of care to homeowner – damages payable where work is defective

Electronic Transactions (Queensland) Act 2001 (Qld) s 14

Queensland Building and Construction Commission Act 1991 (Qld) s 77, sch 1B s 13(2), s 13(5) , Part 3, sch 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

Basscorp Pty Ltd v Kosik [2007] CCT B411-05
Bellgrove v Eldridge (1954) 90 CLR 613

Chad Roberts Constructions Pty Ltd v Johnson Tiles Pty Ltd  [1993] ABT BC9302692

Hall v Busst (1960) 104 CLR 206

Luxottica Retail Australia Pty Ltd v 136 Queen Street Pty Ltd trustee under instrument No 04350946 [2011] QSC 162
Perre v Apand (1999) 198 CLR 180
Robinson v Harman (1848) 1 Ex 850; 154 ER 363
Sablewell Pty Ltd V Kirstborough Pty Ltd and Ors QBT BC9505897
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515

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

  1. Mr and Mrs Vaiao entered into an agreement with Mr Sharkie for the performance of building work at their residential property (the building work). The building work consisted of the construction of timber decks at the front and rear of the dwelling.

  2. As is unfortunately not uncommon, the parties adopted a somewhat relaxed approach to the formation of the agreement for the performance of the building work. On 4 October 2017 Mr Sharkie advised that the total cost of the building work would be $5,767.77.  On 6 October 2017 the Vaiaos paid to Mr Sharkie the agreed price for the building work.

  3. Mr Sharkie commenced the building work on 6 October 2017.  On 15 November 2017 Mr Sharkie advised that there would be an additional cost to Mr and Mrs Vaiao of $527.34 to complete the…

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Details
AGLC
Vaiao & Anor v Sharkie [2019] QCAT 264
Case
[2019] QCAT 264
Decision Date

CaseChat Overview and Summary

The case of Vaiao & Anor v Sharkie involved a dispute between the plaintiffs, Mark Vaiao and Jane Vaiao, and the defendant, James Thomas Sharkie trading as James Sharkie Constructions, concerning a domestic building contract. The plaintiffs alleged that the defendant had breached the contract by not adhering to the requirements of Schedule 1B of The Queensland Building and Construction Commission Act 1991 (Qld) and that the electronic correspondence used to satisfy the signature requirement did not comply with the Electronic Transactions (Queensland) Act 2001 (Qld). Additionally, the plaintiffs claimed that the defendant was negligent in the construction of their home, resulting in defective work, and sought damages. The case was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issues before the court were whether the signature requirement for the domestic building contract was satisfied by electronic correspondence, as permitted under the Electronic Transactions (Queensland) Act 2001 (Qld), and whether the defendant owed a duty of care to the plaintiffs as a homeowner, resulting in liability for damages. The court also had to consider whether the plaintiffs' home had been constructed negligently and if so, what damages were payable.

The court found that the signature requirement for the domestic building contract was not satisfied by electronic correspondence, as it did not comply with the requirements of Schedule 1B of The Queensland Building and Construction Commission Act 1991 (Qld). The court further held that the defendant owed a duty of care to the plaintiffs, as homeowners, and that this duty was breached, resulting in defective work. The court determined that the plaintiffs were entitled to damages for the defective work and ordered the defendant to pay the plaintiffs the sum of $12,226.44 by 4:00pm on 1 October 2019.

Orders

Orders of the court

James Thomas Sharkie t/as James Sharkie Constructions must pay Mark Vaiao and Jane Vaiao TWELVE THOUSAND, TWO HUNDRED AND TWENTY-SIX DOLLARS AND FORTY-FOUR CENTS ($12,226.44) by 4:00pm on 1 October 2019.

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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