Waid v Casey

[2012] QCAT 533

CITATION: Waid v Casey [2012] QCAT 533

PARTIES:	Caroline Patricia Waid
v
Thomas Gerard Casey t/as Mackay Queensland Homes

APPLICATION NUMBER: BDL337-10

MATTER TYPE: Building matters

HEARING DATE: 7 October 2011

HEARD AT: Mackay

DECISION OF: Jim Allen, Member

DELIVERED ON: 26 October 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

Building dispute – Duragal posts – Builder duty of care – Limitation of action – Contributory negligence

Limitation of Actions Act 1974, s 10

Bryan v Maloney (1995) 182 CLR 609

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Ms Waid appeared for herself

RESPONDENT: Mr Casey appeared for himself

REASONS FOR DECISION

1. Ms Waid engaged Mr Casey to build her a house in 1995.  The house sat on Duragal posts and over the years these posts have become subject to rusting.  Ms Waid now seeks an order that Mr Casey pay the cost of replacing the 31 Duragal steel-in-concrete posts which support her house and where necessary to install bracing to any posts which were greater than 900 mm above ground level.  This bracing is said to be required in accordance with the Building Code of Australia.

2. During the course of the application Ms Waid contracted for all of the steel posts to be replaced by LGM House Restumping Pty Ltd at a cost of $19,075.  Ms Waid had earlier filed a quote by that company to replace any damaged posts at a cost of $550 per post plus GST.

3. There were further claims made in the course of the matter as follows:

   a)    Handrail to balustrade on deck 900 mm instead of 1000mm high as drawn on the plans;

   b)    Builders specifications on page 3 shows 4 mm cpw posts approved house plans specify 5 mm;

   c)    Front and back steps specify steel stringers according to builder’s specification and timber stringers were supplied;

   d)    Piers not set at 600 mm into footings in accordance with the approved plans for the house; and

   e)    Resealing of whirly bird on roof of house.

4. At the hearing Ms Waid accepted that the claims in regard to the handrail and the stairs were barred under the Limitation of Actions Act 1974[1] and agreed not to pursue those claims.  Those claims relate to breaches of contract in that the item specified was not constructed in accordance with the plans.  The breach occurred as at the date the contract was completed which date is more than 6 years prior to the date on which the claim has been brought.

   [1]Section 10(1) of the Limitation of Actions Act 1974 actions may not be brought after the expiration of 6 years from the date on which the cause of action arose.

5. The claim in regard to the posts may be brought in tort for negligence and a claim in negligence arises at the time when the latent defect is discovered or becomes manifest; that is discoverable by reasonable diligence[2].

   [2]        Bryan v Maloney (1995) 182 CLR 609.

Negligence

1. For Ms…