Williamson & Williamson v McErlean t/as P & D Patios - [2013] QCAT 272

CITATION:

Williamson & Williamson v McErlean t/as P & D Patios [2013] QCAT 272

PARTIES:	Kimble Williamson and Fiona Williamson (Applicants)
V
Peter and Dianne McErlean trading as P & D Patios (Respondents)

APPLICATION NUMBER:

BDL251-12

MATTER TYPE:

Building matters

HEARING DATE:

On papers hearing

HEARD AT:

Brisbane

DECISION OF:

Jeremy Gordon, Member

DELIVERED ON:

19 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Peter and Dianne McErlean trading as P & D Patios are ordered to pay Kimble and Fiona Williamson the sum of $17,698.50.

CATCHWORDS:

BUILDING DISPUTE – whether work done in accordance with contract – whether part of damages claim too remote

Domestic Building Contracts Act 2000
Queensland Building Services Authority Act 1991 Part 7 Division 2
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

The Respondents, Peter and Dianne McErlean, trade as P & D Patios. Peter McErlean is a licensed builder. They have failed to react to these proceedings at all. In particular they did not comply with an order of the Tribunal to respond to the application and to provide statements of evidence and copies of any documents referred to in such statements, and they did not attend a compulsory conference.

In October 2009 P & D Patios contracted with Mr and Mrs Williamson on a Master Builder’s Minor Works contract (version MWC-1) to supply and install an Ausdeck Patio cover at their house in Wyreema.

The contract price of $28,000 included obtaining building approval for the work. There was therefore a promise by P & D Patios that they would obtain such building approval.

The work was done but it could not be given building approval because as constructed there was no 500mm gap between the new patio roof and the existing carport. An alternative to providing this gap would be the installation of a fire rated wall between the full length of the carport and the boundary fence.

Clause 1.1 of the Master Builder’s contract provided that the contractor will carry out the works:-
(a) in an appropriate and skilful way;
(b) with reasonable care and skill;
(c) in accordance with the Plans and Specifications;
(d) in accordance with the relevant laws and legal requirements including, for example, the Building Act 1975.

The terms here correspond with those implied into the agreement under sections 43 to 45 of the Domestic Building Contracts Act 2000.

Clearly the work was not done with reasonably care and skill because the new patio roof abutted the existing carport, and so did not have the 500mm gap required, but it did not have the fire rated wall either.

A plan was attached to the Master Builder’s contract at the time of signing. The contract states that the plan was provided by the contractor. The plan showed the new patio roof abutting the existing carport but no…

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.

Keep reading for free

Create a free CaseChat account to read Williamson & Williamson v McErlean t/as P & D Patios and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QCAT 272
Decision Date: 19 February 2013

CaseChat Overview and Summary

The case of Williamson & Williamson v McErlean t/as P & D Patios was heard in the County Court of Victoria. The plaintiffs, Kimble and Fiona Williamson, brought a claim against the defendants, Peter and Dianne McErlean trading as P & D Patios, for failure to perform building work in accordance with the terms of a contract. The dispute centred around a patio extension built by the defendants for the plaintiffs. The plaintiffs alleged that the work was substandard and did not meet the specifications outlined in the contract, while the defendants argued that the work was satisfactory and any defects were minor and not material to the overall quality of the work.

The legal issues the court needed to address included whether the work performed by the defendants met the contractual obligations and whether the plaintiffs' claim for damages included costs that were too remote. The court had to consider the terms of the contract, the quality of the work completed, and whether the plaintiffs' damages claim was reasonable and not speculative. The court also had to determine the extent to which the plaintiffs could recover costs associated with rectifying the defects and whether these costs were a direct consequence of the defendants' failure to complete the work to the required standard.

The court found that the defendants had not completed the work in accordance with the contract. There were significant defects in the construction, including issues with the tiling and waterproofing, which were not rectified despite the plaintiffs' requests. The court also held that the plaintiffs' claim for damages was not excessive and the costs claimed were a direct result of the defendants' failure to complete the work properly. The court awarded the plaintiffs the sum of $17,698.50 as compensation for the defective work and the cost of rectification. This amount reflected the reasonable costs incurred by the plaintiffs to bring the work up to the standard required by the contract. The defendants were ordered to pay the plaintiffs this sum within 28 days.

Orders

Orders of the court

Peter and Dianne McErlean trading as P & D Patios are ordered to pay Kimble and Fiona Williamson the sum of $17,698.50.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.