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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Leeds v Turner t/as design2BUILD  QCAT 300
CHRISTINE JOY LEEDS
CHRIS TURNER t/as design2BUILD
5 August 2020
3 August 2020
The application is dismissed.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where claim for defective or incomplete work – where lack of evidence of defective building work sufficient to establish breach of agreement, breach of duty, causation and quantum
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Briginshaw v Briginshaw (1938) 60 CLR 336
Clarke v Cascade Pools (Qld) Pty Ltd  QCAT 323
Creek v Raine & Horne Mossman  QCATA 226
Harris v Foxworth Pty Ltd  QCATA 133
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212
REASONS FOR DECISION
What is this Application about?
- Christine Leeds claims that building work performed for her by Chris Turner trading as ‘design2BUILD’ was defective and incomplete. She seeks a number of remedies, which may or may or not be within the Tribunal’s jurisdiction. Certainly, the Tribunal can order rectification or a refund.
What is the basis of the claim?
- For the Tribunal to order rectification or a refund, Ms Leeds would need to address a number of fundamental issues:
- (a)What was the Agreement?
- (b)What is said to be defective?
- (c)How is it defective?
- (d)What is each defect worth?
- Alternatively, Ms Leeds would need to claim damages in negligence based on a duty of care owed to her by Mr Turner. As this claim would be based in pure negligence, Ms Leeds would need to address other fundamental issues:
- (a)Did Mr Turner owe her a duty of care?
- (b)If so, what was the scope of the duty?
- (c)Did Mr Turner breach the duty?
- (d)Did the breach cause loss?
Is there sufficient evidence to support the claim?
- The difficulty for Ms Leeds is the lack of a coherent formulation of her claim and lack of evidence to support the essential elements of her claim.
- However, no cogent or credible evidence of defective building work was provided to establish a breach of the Agreement or a breach of duty. No evidence of causation was adduced. The only independent evidence of the standard of workmanship was a report from the Queensland Building and Construction Commission that did not identify any defective workmanship. Ms Leeds provided no expert evidence of her own to refute this.
- Moreover, Ms Leeds provided no evidence of the value of alleged defective work. Although her application claims “at least $25,000.00”, no evidence was adduced to support the amount claimed apart from the initial invoice. The basis for the Tribunal to award $25,000.00 or more to Ms Leeds is unclear. To order it as a refund would require a total failure of consideration. To order it as a liquidated amount would require proof of that amount. To order it as unliquidated damages would require proof of loss. No cogent evidence of any of this was before the Tribunal.
- 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.
- The Tribunal is not satisfied there is sufficient evidence to support the claim.
What are the appropriate orders?
- The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate. However, it must also act fairly and according to principles of natural justice with as little formality and as much speed as matters permit. Ms Leeds must establish her case against Mr Turner. She must prove her 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.
- It would not be fair to order Mr Turner to rectify work or pay money to Ms Leeds without sufficient evidence of the elements required to establish her case. Ms Leeds has an obligation to act in her own best interests:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
- The onus is always upon Ms Leeds to present her case.
- In the absence of sufficient evidence to prove a breach of agreement or breach of duty, causation and quantum of the alleged defects, I am not satisfied that Ms Leeds has established her claim to the requisite standard of proof.
- The appropriate order is that the application is dismissed.
 Quote dated 10 April 2019.
 Invoice dated 7 February 2019.
 Transfer Payment Request dated 11 February 2019.
 The work was completed on 1 June 2019. Ms Leeds filed a USB Stick of photographs dated 3 May 2020. These are not contemporaneous evidence.
 QBCC Report of Brian Bates dated 3 November 2019.
 Clarke v Cascade Pools (Qld) Pty Ltd  QCAT 323, .
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d).
 Briginshaw v Briginshaw (1938) 60 CLR 336, 346 (Dixon J).
 Creek v Raine & Horne Mossman  QCATA 226, , citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212, ; Harris v Foxworth Pty Ltd  QCATA 133, .
- Published Case Name:
Christine Joy Leeds v Chris Turner t/as design2BUILD
- Shortened Case Name:
Leeds v Turner
 QCAT 300
05 Aug 2020