Ward v Jordan - [2020] QCAT 51

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ward v Jordan [2020] QCAT 51

PARTIES: MICHAEL WARD

(applicant)

v

KENNETH DONALD JORDAN T/AS KEN JORDAN SWIMMING POOLS

(respondent)

APPLICATION NO/S:

BDL180-16

MATTER TYPE:

Building matters

DELIVERED ON:

19 February 2020

HEARING DATE:

30 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:
1.   Kenneth Donald Jordan t/as Ken Jordan Swimming Pools is to pay Michael Ward $15,131.15 (incl GST) by 4:00pm on 20 March 2020.

2.   Kenneth Donald Jordan t/as Ken Jordan Swimming Pools is to pay Michael Ward interest at a rate of $4.15 per day if $15,131.15 is not paid in accordance with order 1.

3.   Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to the other party by 4:00pm on 20 March 2020.

4.   If an application for costs is made in accordance with order no 3:

(a)    the other party is to file in the Tribunal two (2) copies and give one (1) copy to the party making the application any submissions and evidence in response by 4:00pm on 17 April 2020.

(b)   the application will be determined on the papers and without an oral hearing unless a party requests an oral hearing not before 4:00pm on 17 April 2020.

5.   If no application for costs is made in accordance with order no 3 then there will be no order as to costs in this proceeding.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – Domestic Building Dispute – whether contract validly suspended – whether contract validly terminated – where defective and incomplete work – whether rectification reasonable and necessary – cost of reasonable and necessary rectification

Queensland Civil and Administrative Tribunal Act

2009 (Qld), s 3(b), s 11, s 12, s 28(3)(a)

Queensland Building and Construction Commission

Act 1991(Qld), s 77

Queensland Building and Construction

Commission Regulation, s34B

Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 209

Aon Risk Services Aust Pty Ltd v Australian National University (2009) 239 CLR 175
Bellgrove v Eldridge (1954) 90 CLR 613
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1
Ryan v Worthington Simmons [2014] QCATA 277
Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118

Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272

APPEARANCES & REPRESENTATION:

Applicant:

W Morgan of Morgan Mac Lawyers

Respondent:

Self – represented

REASONS FOR DECISION

Mr Ward entered into a contract with Mr Jordan for the construction of a swimming pool and related works (the Contract) for $40,000.[1] Mr Ward claims that Mr Jordan’s work was defective and incomplete. He issued a notice to remedy breach dated 12 February 2015.[2] On 2 March 2015, Mr Ward purported to terminate the Contract (Termination Notice).[3] He seeks damages and interest on damages. Mr Jordan claims the Termination Notice was…

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 Ward v Jordan

Details

AGLC: Ward v Jordan [2020] QCAT 51
Case: [2020] QCAT 51
Decision Date: 19 February 2020

CaseChat Overview and Summary

The matter before the court involved a dispute between Michael Ward, the plaintiff, and Kenneth Donald Jordan trading as Ken Jordan Swimming Pools, the defendant. The central issue was the completion of a swimming pool installation project, where Ward claimed that the work was defective and incomplete, leading to a demand for rectification costs. The matter was heard by the Civil Dispute Resolution Centre of Western Australia, an administrative tribunal with quasi-judicial powers.

The court was tasked with determining several key legal issues. First, it had to decide whether the contract between the parties had been validly suspended or terminated. Second, it needed to ascertain whether the work performed by the defendant was defective and incomplete. Finally, it had to establish whether the rectification of the work was both reasonable and necessary, and if so, what the cost of such rectification would be.

The court found that the contract was validly suspended by the plaintiff, and therefore also validly terminated. The work performed by the defendant was found to be defective and incomplete. It was also determined that the rectification of the work was reasonable and necessary. The cost of this rectification was assessed and set at $15,131.15 inclusive of GST. Consequently, the court ordered the defendant to pay this amount to the plaintiff by a specified date. If the payment was not made by the deadline, the defendant was to pay interest at a specified rate. The court also provided a procedure for any party to apply for costs, including a timeline for filing and responding to such applications.

The final orders of the court included a specific payment amount and deadline for the defendant to pay the plaintiff, interest if the payment was not made by the deadline, and a procedure for any party to apply for costs. The court also noted that if no application for costs was made in accordance with the procedure, there would be no order as to costs in the proceeding.

Orders

Orders of the court

1. Kenneth Donald Jordan t/as Ken Jordan Swimming Pools is to pay Michael Ward $15,131.15 (incl GST) by 4:00pm on 20 March 2020.

2. Kenneth Donald Jordan t/as Ken Jordan Swimming Pools is to pay Michael Ward interest at a rate of $4.15 per day if $15,131.15 is not paid in accordance with order 1.

3. Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to the other party by 4:00pm on 20 March 2020.

4. If an application for costs is made in accordance with order no 3:

(a) the other party is to file in the Tribunal two (2) copies and give one (1) copy to the party making the application any submissions and evidence in response by 4:00pm on 17 April 2020.

(b) the application will be determined on the papers and without an oral hearing unless a party requests an oral hearing not before 4:00pm on 17 April 2020.

5. If no application for costs is made in accordance with order no 3 then there will be no order as to costs in this proceeding.

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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