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  • Unreported Judgment

Jones v Rubin

 

[2016] QCAT 46

CITATION:

Jones v Rubin [2016] QCAT 46

PARTIES:

Bradley John Jones

(Applicant)

v

Paul Rubin

(Respondent)

APPLICATION NUMBER:

BDL128-15

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

31 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Paul Rubin must pay to Bradley John Jones the sum of $11,205.88 within twenty-eight (28) days of this decision.

CATCHWORDS:

DECISION BY DEFAULT – building dispute – where respondent failed to file response or comply with directions made by the Tribunal – where applicant sought recovery of equipment supplied to the respondent

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42, s 50A

APPEARANCES:

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

REASONS FOR DECISION

  1. [1]
    On 12 March 2015, Bradley John Jones entered into a contract with Paul Rubin for the construction of a swimming pool. Mr Jones completed the installation of the concrete shell of the pool. Mr Rubin has failed to pay to Mr Jones an amount of $9,733.85 which Mr Jones says is the amount due and owing under the terms of the contract.
  2. [2]
    Mr Jones filed an application in the Tribunal on 7 July 2015 seeking recovery of the amount which he says is due and owing by Mr Rubin. In the application Mr Jones also sought orders that the Tribunal declare the contract terminated and also sought the return from Mr Rubin of a Maytronics Swash robotic pool cleaner and 2 LED lights supplied by Mr Jones at the time of the installation of the concrete pool shell.
  3. [3]
    Mr Jones filed an affidavit of service in tribunal on 10 July 2015. The application was served by forwarding it by prepaid post to Mr Rubin’s address.
  4. [4]
    The Tribunal has made a number of directions in the matter:
    1. 14 July 2015 – requiring Mr Rubin to file a response to the application by 12 August 2015 and scheduling the matter for a compulsory conference on 8 September 2015;
    2. 8 September 2015 – listing the matter for a directions hearing on 30 September 2015;
    3. 30 September 2015 – requiring Mr Rubin to file a response to the application and explain his non-attendance at the compulsory conference on 8 September 2015 by 14 October 2015. These directions also provided that in the absence of Mr Rubin’s compliance with the directions, Mr Jones would be at liberty to request a decision by default.
  5. [5]
    Mr Rubin has failed to comply with all of the Tribunal’s directions.
  6. [6]
    On 16 November 2015, Mr Jones filed in the Tribunal a request for decision by default.
  7. [7]
    Mr Jones seeks the following relief:
    1. Payment by Mr Rubin of the sum of $9,733.85;
    2. Pool cleaner described in the original application’.
  8. [8]
    Mr Jones has filed in the Tribunal a copy of the contract with Mr Rubin for the construction of the pool. The contract was for the construction of a concrete pool, 8 metres by 4 metres.
  9. [9]
    The contract provided for the payment of a deposit and 6 staged payments thereafter. The deposit and the stage 1 payment were paid by Mr Rubin. The stage 2 payment in the sum of $9,733.85 payable upon the completion of the structural shell and internal plumbing has not been paid by Mr Rubin. It is this amount which Mr Jones seeks recovery of.
  10. [10]
    The contract refers to a number of items identified as ‘pool/spa equipment’ which were required to be supplied by Mr Jones. This includes a ‘Maytronics Swash Robot’ (‘the cleaner’).[1]
  11. [11]
    In submissions to the Tribunal, Mr Jones says that the cleaner was delivered direct to the site of the pool installation by Maytronics, together with pool lights which were required to be installed at the time of the pool shell installation. Mr Jones says that these lights have been installed. Mr Jones seeks the return of the pool cleaner from Mr Rubin.
  12. [12]
    Mr Jones has placed before the Tribunal evidence indicating that the pool cleaner and lights were delivered by Maytronics directly to Mr Rubin. There is evidence that Mr Jones paid $550.00 to Maytronics for these items.
  13. [13]
    Mr Jones has placed before the Tribunal copies of communications between himself and Mr Rubin in which Mr Rubin undertakes to attend to the payment of the outstanding stage 2 payment to Mr Jones. Mr Rubin has not paid any monies to Mr Jones in respect of the monies payable under the contract nor has the pool cleaner been returned by Mr Rubin to Mr Jones.[2]
  14. [14]
    Mr Jones has filed in the Tribunal an affidavit of service in relation to the service upon Mr Rubin of the request for a decision by default. I am therefore satisfied that Mr Rubin has been given a copy of the application.[3]
  15. [15]
    I am satisfied that Mr Rubin’s failure to comply with the directions of the Tribunal is an appropriate basis for granting Mr Jones final relief under the Act.[4] Further or in the alternative I am satisfied that, as a result of Mr Jones’s failure to file a response, the requirements of s 50A of the QCAT Act in regard to the granting of a decision by default have been met.
  16. [16]
    I am satisfied that Mr Jones is entitled to recover against Mr Rubin the amount of $9,733.85. I am also satisfied that Mr Jones is entitled to interest on this amount from March 2015.
  17. [17]
    Mr Jones does not articulate the basis upon which he says he is entitled to the return of the pool cleaner. The evidence before the Tribunal is that Mr Jones paid $550.00 to Maytronics for the pool cleaner and pool lights and that these items were delivered by Maytronics to Mr Rubin. Presumably Mr Rubin retains the benefit of these items. Mr Jones is entitled to recover $550.00 in respect of the pool cleaner and pool lights being the amount he paid to Maytronics.
  18. [18]
    Accordingly, there will be judgement for Mr Jones as follows:
    1. Stage 2 progress payment $ 9,733.85
    2. Payment for pool cleaner and lights $ 550.00

$ 10,283.85

  1. Interest on $10,283.85 @ 6% from 01.04.15 to date $ 617.03
  2. Costs – filing fees $ 305.00

TOTAL $ 11,205.88

Footnotes

[1]Pool Building Specifications - Item 16.

[2]Affidavit of Christopher John Jones for claim of unliquidated damages sworn 16 November 15.

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 50A(6).

[4]QCAT Act, s 42(2)(b)(i).

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Editorial Notes

  • Published Case Name:

    Bradley John Jones v Paul Rubin

  • Shortened Case Name:

    Jones v Rubin

  • MNC:

    [2016] QCAT 46

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    31 Mar 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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