Winchester v Knapp t/as Knapp Constructions Pty Ltd - [2022] QCAT 61

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Winchester v Knapp t/as Knapp Constructions Pty Ltd [2022] QCAT 61

PARTIES: JEANETTE WINCHESTER

(applicant)

v

MARK KNAPP T/AS KNAPP CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

BDL194-20

MATTER TYPE:

Building matters

DELIVERED ON:

15 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McDonald

ORDERS:

Mark Knapp t/as Knapp Constructions Pty Ltd shall pay Jeanette Winchester the sum of $320 forthwith.

CATCHWORDS:

BUILDING REPORT – whether breach of contract – whether report complies with Australian Standards – where report provided by licenced contractor – whether report caused loss

Queensland Building and Construction CommissionAct 1991 (Qld), s 42

Fair Trading Act 1989 (Qld), s 50, 50A

Billingham and Anor v Schluter t/as Better Building Inspections Qld [2018] QCATA 165

Clarke and Clarke V Prime Building and Pest Inspection

[2014] QCAT 325

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

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

Background

This application is brought by Mrs Winchester who has relied on a building report of the Knapp Constructions Pty Ltd (hereafter “the Respondent)” when purchasing her residential property.
Two major defects, in the roofing and flooring have become apparent in the months following settlement, and she argues that the Respondent has been negligent in failing to comply with the Australian Standards. She claims that due to this she has lost the opportunity to renegotiate the purchase price or repairs, or to terminate the contract within her rights.[1] She claims damages for the cost of replacement of the roof, $25,000, and replacement of the timber floor, $7,284, Restitution for unlicenced contracting, $420 and costs of $475, a total of $33,179. She asserts that she has rights and remedies available to her for breach of contract, negligence and for breach of the Australian Consumer Law.
[1]Applicant Submissions filed 8 April 2021, p 14.
Mrs Winchester, on 6 June 2018, entered into a contract to purchase a residential property subject to a satisfactory building and pest report being obtained with 14 days.[2]
[2]Contract, Attachment 1- Applicant Submissions filed 8 April 2021.
Mrs Winchester requested the real estate agent involved in the transaction to organise a building and pest report on her behalf. The agent contacted Amalgamated Pest Control, (APC), who undertook a pest inspection, and APC engaged the respondent to undertake a pre- purchase building report.[3] She paid APC $440 in cash on the date of inspection and received a receipt from APC for the requested works which stated building and pest inspection.[4] The respondent builder states that he was paid $220 by APC.[5] APC performed the pest inspection and reported the results of their inspection in a separate document.[6]
[3]Applicant Submission filed 8 April 2021, paragraph 5.
[4]Affidavit of Mark Darryl Knapp, sworn 17 February 2021, Attachment D, Receipt dated 7 June 2018
[5]Respondent Submissions Paragraph 70.
[6]Affidavit of Mark Darryl Knapp, sworn 17 February…

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.

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Details

Case: [2022] QCAT 61
Decision Date

CaseChat Overview and Summary

The applicant, Jeanette Winchester, sought a determination of whether the respondent, Mark Knapp trading as Knapp Constructions Pty Ltd, was liable for damages incurred as a result of the applicant purchasing a residential property based on an allegedly defective building report. The applicant claimed damages in the sum of $33,179 for the replacement of the roof, replacement of the timber floor, restitution for unlicensed contracting, and costs. The respondent argued that he was not liable as there was no contractual relationship between the parties, and that any deficiencies in the report did not cause the applicant’s losses. The court found that the respondent was not liable for damages for breach of contract or negligence as there was no contractual relationship between the parties. However, the court found that the respondent was liable to repay the inspection fee of $220 as his company was not licensed to perform building inspections at the time, and that the applicant was entitled to nominal damages in the sum of $100. The court ordered the respondent to pay the applicant $320 forthwith.

The central issue in this case was whether the respondent was liable for damages for breach of contract or negligence, or for breach of Australian Standards. The court found that there was no contractual relationship between the parties as the building inspection was arranged by a third party real estate agent. The court also found that the report complied with Australian Standards in relation to the roof and flooring, and that the respondent had not caused the applicant’s losses. However, the court found that the respondent was liable to repay the inspection fee as his company was not licensed to perform building inspections at the time. The court ordered the respondent to pay the applicant $320 forthwith.

Orders