Landman v Lauder[2018] QCAT 395

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this Application about?

1. [1]
   Louis and Sonja Landman bought a home they say had defects including bathroom drainage, brickwork articulation and termite parching. They have applied for orders against Bruce Arthur Lauder and Kevin James Kelly, who performed some work on the home. 

What is the basis of the claim?

2. [2]
   Because Mr and Mrs Landman did not contract with either Mr Lauder or Mr Kelly, their claim would need to be based in negligence based on a duty of care owed by builders to subsequent home owners.^[1]   
3. [3]
   As the claim is based in pure negligence, Mr and Mrs Landman must establish that they were owed a duty of care, the scope of that duty, a breach of that duty, loss caused by that breach of duty and proof of that loss. 

Is there sufficient evidence to support the claim?

4. [4]
   The difficulty for Mr and Mrs Landman is their lack of evidence to support the essential elements of their claim. Because it is unclear when the involvement of
   Mr Lauder and Mr Kelly begins and ends, there is no temporal connection to establish a duty of care owed by either.
5. [5]
   While Mr Kelly remained as the nominal builder, his involvement appeared to end at the frame stage.^[2] No evidence was adduced of any defects at that stage or that any of the work complained of was performed by Mr Kelly or Mr Lauder.
6. [6]
   Even if Mr and Mrs Landman could establish that Mr Kelly or Mr Lauder owed a duty of care, they have not adduced evidence of defective building work sufficient to establish a breach of that duty. No independent evidence was adduced that the work is currently defective - the work was completed on 18 February 2010 and Mr and Mrs Landman’s purchase of the property settled on 25 November 2014.
7. [7]
   At most, Mr and Mrs Landman provided evidence of past problems with their ensuite, brickwork and termite parching but without any evidence that this constituted defective building work and any evidence of causation and remedial work required and who was responsible for whatever was causing the issues.^[3] It was not a breach of duty to not provide certificates of compliance to a later buyer. 
8. [8]
   Moreover, Mr and Mrs Landman provided no evidence of the value of alleged defective work. Although their application claims $8,000.00 for defective work and $1,999.00 for incomplete work, no evidence was adduced to support the amounts claimed apart from a quote for $1,195.00.^[4] Mr and Mrs Landman referred to other quotes totalling $7,529.47, but these were not provided.^[5] Even if they had been provided, it is unclear from their description how they relate to any defective building work performed by Mr Lauder or Mr Kelly.
9. [9]
   The Tribunal cannot award amounts claimed without proof of the amount and how it has been calculated:

In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.^[6]

10. [10]
    The Tribunal is not satisfied there is sufficient evidence to support the claim.

What are the appropriate orders?

11. [11]
    Mr and Mrs Landman must establish their case against Mr Lauder and Mr Kelly. They must prove their claim to the reasonable satisfaction of the Tribunal:

… “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references … the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.^[7]

12. [12]
    In the absence of evidence to establish a duty of care owed by Mr Lauder or Mr Kelly,  causation or quantum of the alleged defects, I am not satisfied that Mr and Mrs Landman have established their claim to the requisite standard of proof.
13. [13]
    The appropriate order is that the application is dismissed.