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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Lynch v Rodgers Building Enterprises Pty Ltd  QCAT 290
rodgers building enterprises pty ltd
24 July 2020
On the papers
Rodgers Building Enterprises Pty Ltd is to pay Jeanette Lynch $13,051.90 by 7 August 2020.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – Domestic Building Dispute – whether works defective – reasonable costs of necessary rectification work
Domestic Building Contracts Act 2000 (Qld), s 7, s 8, s 26, s 41, s 42, s 43, s 44, s 51, s 92
Limitations of Actions Act 1974 (Qld), s 10
Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 72A, s 77
Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 62
Bellgrove v Eldridge (1954) 90 CLR 613
Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes v Dunne  QCATA 112
Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272
Robert Phillips, husband
Cameron Rodgers, director
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
- Ms Lynch engaged Rodgers Building Enterprises Pty Ltd (‘the Builder’) to ‘remove asbestos roof and ceiling bats and replace with 3.5 bats and colourbond roof and gutter including all dumping costs and scaffolding including air cell and cyclone brackets for solar hot water system and cyclone upgrade to roof’ following cyclones Anthony and Yasi impacting the area in which her home is located. Ms Lynch paid $33,690 on 6 September 2011.
- Ms Lynch claims that the work requires rectification. Ms Lynch seeks rectification costs and costs associated with establishing the work was defective and bringing this proceeding. She claims that she relied upon the Builder, a member of the Master Builders Association of Queensland, to perform the works to an appropriate standard.
- The evidence is that no written contract was entered into between the parties contrary to the requirements under section 26 of the Domestic Building Contracts Act 2000 (Qld) (‘DBC Act’). A failure by a building contractor to comply with a requirement under the DBC Act does not make the contract illegal, void or unenforceable. Although the DBC Act has been repealed, it continues to apply to domestic building contracts entered into before 1 July 2015.
- The following warranties are implied into such a contract:
- (a)the building contractor warrants that all materials to be supplied for use in the subject work will be good and, having regard to the relevant criteria, suitable for the purpose for which they are used.
- (b)the building contractor warrants work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975 (Qld).
- (c)the building contractor warrants the work will be carried out in an appropriate and skilful way and with reasonable care and skill.
- If the works are not performed in accordance with the warranties, then the homeowner is entitled to damages.
- Following cyclone Debbie, Ms Lynch engaged Ambrose Building to inspect the roof for damage. In mid May 2017, Ambrose Builders identified some items of defective work including that the roof sheeting used did not comply with Australian Standards and the manufacturer’s specifications.
- Ms Lynch and her husband, Mr Phillips, have attempted to resolve the issues of defective work with the Builder, through Mr Rodgers, the Builder’s director. They also sought the assistance of the Master Builders Association of Queensland.
- An independent contractor, JD Roofing Pty Ltd, inspected the work and confirmed the Builder’s work required rectification including because the roof pitch is less than recommended for the product used. JD Roofing produced a report, at a cost of $302.50 (incl GST), a copy of which was attached to the Application.
- A further independent contractor, Rydec Homes, inspected the roof on or about 13 November 2019 and produced a report, a copy of which was produced to the Tribunal. Rydec Homes confirmed that the works required rectification, including because the corrugated profile sheeting installed was not appropriate for a roof with a pitch of 3.5 degrees and needed to be replaced to meet AS 1652.
- Ms Lynch and Mr Phillips have obtained a number of quotes from contractors, copies of which were produced to the Tribunal. The quotes range from $12,142.50 to $23,907.71 (incl GST).
- Mr Rodgers’ evidence is essentially that:
- (a)the Builder engaged a sub-contractor to perform the work.
- (b)the works have not been performed in accordance with Australian standards.
- (c)materials not suitable to the application were used.
- (d)certain of the work requires rectification.
- (e)the scope of works set out in a quote by Rydec Homes are reasonable to rectify the defective work and he disputes the other quotes because he contends they include work which is not reasonable to rectify the defective work.
- (f)the amount quoted by Rydec Homes of $12,142.50 (incl GST) is excessive.
- (g)an amount of $10,000 is reasonable.
- The Builder’s focus has not been to dispute that the work is defective and requires rectification at the Builder’s cost but rather has disputed the scope of work reasonably required to rectify and the reasonable cost of such work.
- Ms Lynch made a written complaint to the QBCC on 15 June 2018. By letter dated 5 July 2018 the QBCC decided that it could not issue a direction to rectify to the Builder as the works were performed more than six years and six months prior, being the statutory defect liability period for structural defects. Shortly afterwards these proceedings were commenced.
- The evidence is that the contract was completed no later than 6 September 2011 upon payment. Ms Lynch commenced this proceeding on 17 July 2018.
- The Builder did not specifically raise the issue of the Limitations of Actions Act 1974 (Qld) (LAA), which provides that an action based on contract or negligence shall not be brought after the expiration of six years from the date on which the cause of action arose.
- The DBC Act provides that a proceeding for breach of warranty must be started within six years and six months after the work is finished. Ms Lynch, who was not legally represented, does not clearly articulate her claim against the Builder by reference to an identifiable cause of action e.g. breach of contract or for breach of duty nor does she expressly rely upon a breach of warranty under the DBC Act.
- The Appeal Tribunal has observed that:
The LAA is, with limited exceptions, procedural. It has the effect of barring the remedy but not extinguishing the right. As Lindgren J observed in Commonwealth v Mewett:
The fact that proceedings have been commenced within a limitation period is not an element of the cause of action and so need not be pleaded by the plaintiff/applicant but must be pleaded by way of defence, and unless and until this happens the limitation has no effect….A court will not, of its own motion, refuse a remedy although the “lateness” of the commencement of proceedings is apparent.
There are no pleadings in the Tribunal. Nevertheless, in order to rely upon a defence based upon the LAA a party in the Tribunal must, in our view, raise the application of the LAA sufficiently clearly to enable the other party to identify and address the issues relevant to any time limitation defence relied upon.
- I am not satisfied that the Builder clearly raised a defence under the LAA and so it is unnecessary to consider whether the claim by Ms Lynch for breach of contract is out of time and in particular to consider whether there was a concurrent cause of action in negligence, when such a cause of action arose and whether such a claim was out of time.
- I am satisfied that the work performed on behalf of the Builder was defective.
Damages – rectification costs
- I find that the reasonable cost to rectify the defective work is $12,142.50 (incl GST).
- Where works are defective, in breach of the contract, this requires an assessment of the cost of work, which is both reasonable and necessary to ensure the homeowner receives the benefit of the contract entered into by the parties.
- The Builder concedes the scope of works set out in a quote by Rydec Homes is reasonable to rectify the defective work. Mr Rodgers, who, I accept, is likely to have some relevant skills and experience in costing the work, gave evidence that the reasonable costs of performing that work was no more than $10,000. The Builder did not seek to lead evidence from an independent contractor or independent expert as to the reasonable cost of the work. I prefer the evidence of the independent contractor, Rydec Homes, to the evidence of Mr Rodgers, who is not an impartial party.
- I find the Builder is to pay Ms Lynch $909.40 in respect of establishing the works were defective and bringing this proceeding.
- Ms Lynch claims costs associated with establishing the work was defective and bringing this proceeding. The Tribunal has a broad general discretion to award costs in building disputes. She has produced supporting documentary evidence that the following costs have been incurred in bringing these proceedings and establishing the works were defective:
- (a)Tribunal filing fee – $338.20;
- (b)Costs to effect service of the proceedings – SS Consulting Group $220 (incl GST);
- (c)Printing - $48.70 (incl GST);
- (d)JD Roofing report - $302.50 (incl GST).
- The Builder does not expressly seek to challenge the reasonableness of these costs incurred. I accept that had the Builder’s work not been defective Ms Lynch would not have incurred these costs. She should be recompensed.
 Tax invoice dated 19 August 2011.
 Domestic Building Contracts Act 2000 (Qld), s 92 (‘DBC Act’).
 Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 62.
 Ibid, s 7.
 Ibid, s 8.
 Ibid, s 41.
 Ibid, s 42(1)(a).
 Ibid, s 43.
 Ibid, s 44.
 Queensland Building and Construction Commission Act 1991(Qld), s 72, s 72A (‘QBCC Act’).
 Limitations of Actions Act 1974 (Qld), s 10 (‘LAA’).
 DBC Act, s 51.
 Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes v Dunne  QCATA 112, , , citing Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471 and Commonwealth v Mewett (1995) 59 FCR 391.
 Noting that it accrues when the person suffers damage as a result of the breach of duty.
 Bellgrove v Eldridge (1954) 90 CLR 613; Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272.
 QBCC Act, s 77(3)(h).
- Published Case Name:
Jeanette Lynch v Rodgers Building Enterprises Pty Ltd
- Shortened Case Name:
Lynch v Rodgers Building Enterprises Pty Ltd
 QCAT 290
24 Jul 2020