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Gilchrist v Ivanovic[2016] QCAT 56

CITATION:

Gilchrist v Ivanovic [2016] QCAT 56

PARTIES:

Quintin Gilchrist

(Applicant)

 

v

 

Goran Ivanovic

(Respondent)

APPLICATION NUMBER:

BDL163-15

MATTER TYPE:

Building matters

HEARING DATE:

10 February 2016

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

6 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application is dismissed.

CATCHHWORDS:

BUILDING DISPUTE - SCHEME LAND - structure on common property - claim against a former owner about retaining wall allegedly built by him as an owner builder

Body Corporate and Community Management Act 1997 (Qld), ss 35, 36

Paul Bongioletti Homes Pty Ltd v North [2012] QCATA 175, cited Tracey v Olindaridge Pty Ltd [2013] QCATA 48, cited Olindaridge Pty Ltd v Tracey [2014] QCATA 207, cited

APPEARANCES:

APPLICANT:

Mr Quintin Gilchrist and Mrs Fiona Gilchrist represented Mr Gilchrist

RESPONDENT:

Mr Goran Ivanovic represented himself

REASONS FOR DECISION

  1. [1]
    Mr Quintin Gilchrist, one owner of premises at 16 Trinette Street, made application for the Tribunal to determine a building dispute against Mr Goran Ivanovic. Ms Fiona Lidgard owns the property as joint tenants with Mr Gilchrist. He seeks damages for the costs of the (proposed) removal and replacement of a fence and what he describes as a retaining wall.[1]
  2. [2]
    At the commencement of the hearing, I raised a number of apparent issues (consistent with those outlined below in my observations) with the application with Mr Gilchrist. He advised that he wished to proceed to hearing on that day on the basis of the information/evidence filed in the Tribunal.
  3. [3]
    Mr Goran Ivanovic, together with another person, previously owned 16 and 16A Trinette Street. He (and the other person) sold 16 Trinette Street to Mr Gilchrist and Ms Lidgard. The parties entered a contract on about 30 January 2009, which was subject to a satisfactory building inspection. Although not a qualified building inspector, Mr Gilchrist (who was at the time a carpenter but did not hold a builder’s licence), performed an inspection and was satisfied. Settlement occurred in about March 2009.
  4. [4]
    As an owner builder, Mr Ivanovic built the house on 16A. Separately, and not as part of that project, in about 2007, he constructed part of the fence/wall which is now the subject of this claim. At the time of the construction, there was an existing brick retaining wall. Mr Ivanovic says that it was built at least some 30 years ago. The fence/wall built which was built by Mr Ivanovic, was built on the (already) retained soil, some distance from the existing brick retaining wall.[2]
  5. [5]
    It is uncontroversial that 16 Trinette Street is on scheme land on a Community Title with 16A.[3] There is a body corporate for the premises. The body corporate was not a party to the proceedings. The parties agree that the wall/fence is on common property.[4]
  6. [6]
    There is a preliminary issue: is Mr Gilchrist entitled to bring an application for a building dispute in respect of the alleged building works on scheme land?
  7. [7]
    Under the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), although the lot owners own the common property as tenants in common,[5] a body corporate for a community titles scheme may sue and be sued in respect of the common property.[6] The premises may be a specified two-lot scheme under the BCCM Act.[7]  However, Mr Gilchrist does not act on behalf of the body corporate. If there is any merit in the alleged building dispute in respect of the fence and retaining wall on the common property (and it is not clear to me on the available evidence that there is), Mr Gilchrist is not entitled to bring it. It is the body corporate which may do so.
  8. [8]
    As Mr Gilchrist is not entitled to bring the claim, his application must fail. I make orders dismissing it.
  9. [9]
    Observations
  10. [10]
    I make the observation, based on the available evidence, that there are a variety of apparent issues with the claim even if it had been made by the body corporate. It appears the claim could only be a claim for negligence, since Mr Ivanovic did not build the fence for Mr Gilchrist or the body corporate. It is not certain that Mr Ivanovic owes a duty of care at law to any subsequent owner for that part of the fence/wall which he constructed;[8] even if he did, it is not apparent that there has been a breach of the duty; or that any damage has been caused as a result of any such breach, which is not too remote from the actions of Mr Ivanovic.[9]
  11. [11]
    In this regard, even if Mr Ivanovic owes a duty of care, the other part of the wall (which is at least largely responsible for retaining the soil), was not built by Mr Ivanovic. It was built some 30 years ago, by an unknown or unnamed person. Further, the building report[10] now relied upon by Mr Gilchrist suggests that at least some of the issues complained about are attributable to the growth of tree roots, which (having regard to the photographs in evidence)[11] can only be the result of Gilchrists’ inactions.  Further, the damages claimed by Mr Gilchrist is the cost of removal of the existing retaining wall together with the fence/wall built by Mr Ivanovic, and replacement of both with a vastly superior wall which Mr Gilchrist expects will be adequate to last for the next 30 or 40 years.  If liability was established, the amount claimed would not, in any event, be a proper measure of damages.[12]

Footnotes

[1] Inadvertently, the quotes relied upon by Mr Gilchrist were not marked as exhibits during the hearing. However, they were identified by Mr Gilchrist as a quote from Hawley Constructions dated 28 July 2015 for $38,894 and a quote from Emmanuel Arthur dated 21 July 2015 for $39,407. They are now been marked as Exhibits 12 and 13 respectively.

[2] See Exhibits 3,4 and 6. The distance from the edge of the brick retaining wall to the timber fence is not measured in the photographs, but appears to be approximately 400 mm.

[3] Also see Exhibits 8, 10 and 11.

[4] See also Exhibit 8, which supports that the land which is not contained within the  houses is common property under the scheme.

[5] BCCM Act, s 35.

[6] BCCM Act, s 36.

[7] BCCM Act, s 111C.

[8] See Paul Bongioletti Homes Pty Ltd v North [2012] QCATA 175 esp at [36-37]; Tracey v Olindaridge Pty Ltd [2013] QCATA 048 at [15-19].

[9] Olindaridge Pty Ltd v Tracey [2014] QCATA 207.

[10] Exhibit 2 page 12.

[11] Cf Exhibit 6 photograph A with Exhibits 3 and 4 where the trees are shown.

[12] See Paul Bongioletti Homes Pty Ltd v North [2012] QCATA 175 esp at [36-37]; Tracey v Olindaridge Pty Ltd [2013] QCATA 048 at [15-19].

Close

Editorial Notes

  • Published Case Name:

    Quintin Gilchrist v Goran Ivanovic

  • Shortened Case Name:

    Gilchrist v Ivanovic

  • MNC:

    [2016] QCAT 56

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    06 Apr 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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