Welsh v Ross - [2024] QCAT 367

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Welsh v Ross [2024] QCAT 367

PARTIES:

AARON JULIAN WELSH

(applicant)

v

PETER ROSS

(respondent)

APPLICATION NO:

BDL375-23

MATTER TYPE:

Building matters

DELIVERED ON:

10 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

1.     Mr Ross must pay Mr Welsh damages of $7,150.00 plus interest on that amount at the rate of 10% per annum as and from the date of this decision within 28 days of this decision.

2.     Mr Ross must pay Mr Welsh $12,669.80 within 28 days of this decision.

3.     Mr Ross must pay Mr Welsh’s costs fixed at $379.50 within 28 days of this decision.

CATCHWORDS:

JURISDICTION – DOMESTIC BUILDING DISPUTE – REVIEWABLE DOMESTIC BUILDING WORK – where domestic building work includes the renovation, alteration, extension, improvement or repair of a home

PROCEDURE – CIVIL PROCEEDINGS IN STATE TRIBUNAL – ENDING PROCEEDINGS EARLY – where one party unnecessarily disadvantages another party – where respondent failed to comply with Tribunal directions without reasonable excuse – where discretion of Tribunal exercised to make final decision in applicant’s favour

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – PERFORMANCE OF WORK – where domestic building contract does not comply with Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) – where work performed defective – whether breach of contract can be established – where breach of duty of care established – where claim for damages in negligence available – where interest payable on damages award at 10% as and from date of decision

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DAMAGES – MEASURES OF – where contract entered into for the performance of building work and consideration paid – where builder is unlicensed – where builder performs unlicensed building work – where builder not entitled to consideration for performing building work – where builder must repay consideration paid by owner

Queensland Building and Construction Commission Act 1991 (Qld), s 42(1), s 42(3), s 42(4), s 77; Sch 1B s 1, s 6, s 7(2), s 13(2), s 13(5); Sch 2
Queensland Building and Construction Commission Regulation2018 (Qld), s 45, s 54

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 32, s 48

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Bryan v Maloney (1995) 182 CLR 609
Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75
Corporation of the City of Adelaide v Jennings Industries Ltd [1985] HCA 7; (1985) 156 CLR 274

Harrison v Meehan [2017] QCA 315

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850; 154 ER 363

Ventura v Svirac (1961) WAR 63

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…

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 Welsh v Ross

Details

AGLC: Welsh v Ross [2024] QCAT 367
Case: [2024] QCAT 367
Decision Date: 10 September 2024

CaseChat Overview and Summary

In the matter of Welsh v Ross, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to resolve a domestic building dispute between the building owner, Mr Welsh, and the building contractor, Mr Ross. The dispute arose from domestic building work Mr Ross was contracted to perform for Mr Welsh, which included renovations, alterations, and repairs to Mr Welsh's home. The central issues before the Tribunal involved whether Mr Ross's work complied with the relevant statutory requirements and whether he could be held liable for the defective performance of the contract. Additionally, the Tribunal had to consider whether Mr Ross's failure to comply with Tribunal directions warranted bringing the proceedings to an early end in Mr Welsh's favour.

The Tribunal found that Mr Ross had failed to comply with its directions, including attending a compulsory conference, and had provided inadequate reasons for his non-compliance. This non-compliance unnecessarily disadvantaged Mr Welsh, who was unable to progress his claim to a final resolution. The Tribunal held that Mr Ross was liable for the defective performance of the contract and had breached his duty of care, making Mr Welsh eligible for a claim in negligence. The Tribunal also ruled that Mr Ross, having been unlicensed, was not entitled to the consideration paid by Mr Welsh for the building work and was required to repay the amount. Furthermore, interest on the damages award was to be paid at a rate of 10% per annum from the date of the decision.

As a result of the Tribunal's findings, it ordered Mr Ross to pay Mr Welsh damages of $7,150 plus interest at 10% per annum from the date of the decision. Additionally, Mr Ross was ordered to repay $12,669.80 to Mr Welsh, representing the amount paid for the defective work. Finally, Mr Ross was required to pay Mr Welsh's costs of $379.50. These payments were to be made within 28 days of the Tribunal's decision.

Orders

Orders of the court

1. Mr Ross must pay Mr Welsh damages of $7,150.00 plus interest on that amount at the rate of 10% per annum as and from the date of this decision within 28 days of this decision.

2. Mr Ross must pay Mr Welsh $12,669.80 within 28 days of this decision.

3. Mr Ross must pay Mr Welsh’s costs fixed at $379.50 within 28 days of this decision.

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

Mr Ross having failed to attend the compulsory conference, the Tribunal directed[7] that the matter be listed for hearing on the papers, and the parties file any final submissions. Neither party filed final submissions.Consideration and findings[7]Directions made at compulsory conference dated 24 July 2024.Tribunal’s jurisdiction The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The Tribunal has jurisdiction to hear and decide building disputes.[8] A building dispute includes a domestic building dispute.[9] A domestic building dispute includes a dispute between a building owner and building contractor relating to the performance of reviewable domestic work.[10] Both ‘building contractor’ and ‘building owner’ are defined in the QBCC Act.[11] Reviewable domestic work means domestic building work under s 4 of Schedule 1B of the QBCC Act. Domestic building work includes the renovation, alteration, extension, improvement or repair of a home.[12][8]QBCC Act, s 77.[9]Ibid, Schedule 2 (definition of ‘domestic building dispute’).[10]Ibid, (definition of ‘reviewable domestic work’).[11]Ibid, (definition of ‘building contractor’; definition of ‘building owner’).[12]Ibid, Schedule 1B, s 4(1)(b). A person involved in a building dispute may apply to the Tribunal to decide the dispute provided the person has complied with a process established by the QBCC to attempt to resolve the dispute.[13][13]Ibid, s 77(2). I am satisfied and find that:(a)Mr Welsh is a building owner and Mr Ross is a building contractor.(b)While Mr Stevens of Salty Landscapes and Constructions was included in the early exchange of emails regarding the revised 7 July 2023 quote, the contracting parties were Mr Welsh and Mr Ross. (c)Mr Ross contracted to carry out, and carried out, domestic building work for Mr Welsh.(d)The dispute between the parties is a domestic building dispute.(e)Mr Welsh complied with the QBCC pre-proceeding processes.(f)The Tribunal has jurisdiction to hear and decide the dispute.Bringing proceeding to an early end A proceeding in the Tribunal may be brought to an early end in circumstances where the Tribunal considers a respondent in the proceeding is acting in a way that unnecessarily disadvantages an applicant by not complying with a Tribunal order or direction without reasonable excuse. In such circumstances, the Tribunal may make its final decision in the proceeding in the applicant’s favour.[14][14]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48. I am satisfied and find that:(a)Mr Ross has paid no monies to Mr Welsh in respect of the amounts claimed.(b)Other than filing a response to Mr Welsh’s initial application, Mr Ross has since failed to comply with the Tribunal’s directions and failed to attend the compulsory conference.(c)Mr Ross’s advice to the Tribunal that his business was no longer operating and he is not able to assist demonstrates a lack of understanding and care on Mr Ross’s part in relation to his legal responsibilities associated with and consequent upon the conduct of his contracting business.(d)Mr Ross has unnecessarily disadvantaged, and continues to unnecessarily disadvantage, Mr Welsh. The disadvantage to Mr Welsh is that he has been unable to progress his claim to final resolution.