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  4. Lipman v Coastal Patios Pty Ltd & Anor - [2025] QCAT 32

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Lipman v Coastal Patios Pty Ltd & Anor[2025] QCAT 32

Lipman v Coastal Patios Pty Ltd & Anor[2025] QCAT 32

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lipman v Coastal Patios Pty Ltd & Anor [2025] QCAT 32

PARTIES:

paul lipman

(applicant)

v

coastal patios pty ltd

(respondent)

STRATCO QLD PTY LTD

(respondent)

APPLICATION NO/S:

BDL008-23

MATTER TYPE:

Building matters

DELIVERED ON:

16 January 2025

HEARING DATE:

15 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Bishop

ORDERS:

The application for domestic building disputes is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – GENERAL PRINCIPLES – where claim for defective or incomplete work – where correct parties to the contract need to be established – where no legally enforceable contract – where unable to establish a case in negligence – where potential manufacturers warranties out of time

Domestic Building Contracts Act 2000 (Qld), s 7, s 8, s 13,  s 26

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 39

Corporations Act 2001 (Cth), s 601AD(1)

Hutchings v Arty Concreting Pty Ltd [2022] QCAT 81

Pico Holdings, Inc v Wave Vistas Pty Ltd [2005] HCA 13

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8

APPEARANCES & REPRESENTATION:

Applicant:

Mr Paul Lipman

Respondent:

Mr Anthony Moran

Mr Andrew Staff (Stratco State Manager)

REASONS FOR DECISION

Background

  1. [1]
    Mr Lipman’s evidence is that he entered into a contract (‘the Contract’) with Coastal Patios Pty Ltd (‘Coastal Patios’) on 5 October 2011 to build a Stratco Outback Flat Roof patio for the amount of $10,400 (‘the Patio’). Mr Lipman was given a document titled ‘Features & Benefits of the Outback Patio’ that stated, “All parts covered under most comprehensive guarantee in the patio industry provided by Stratco Australia, who has been in business for over 50 years.”[1] The building commenced on 10 October 2011 and was completed on 10 February 2012.
  2. [2]
    Mr Lipman told the Tribunal he did not live in Queensland from 2001 to 2022. When he returned in 2022, he became aware that the Patio had structural issues and lodged a complaint with the Queensland Building and Construction Commission (‘QBCC’) on 1 December 2022. On 10 January 2023, the QBCC made a decision that it would not be directing Moran Investments Pty Ltd (‘Moran Investments’) to rectify his complaint items and the Queensland Home Warranty Scheme was unable to provide cover. The reasons for both decisions was Mr Lipman was out of time.[2]
  3. [3]
    On 13 January 2023, Mr Lipman lodged in the Tribunal an Application for domestic building disputes against Coastal Patios and Stratco Australia. He named Anthony Moran as Coastal Patios’ representative.
  4. [4]
    On 15 November 2024 Mr Lipman, Mr Moran and Mr Staff (Queensland Manager for Stratco Australia) attended the Tribunal hearing. Mr Lipman and Mr Staff attended via videoconference and Mr Moran attended in person. Mr Lipman and Mr Moran gave sworn evidence.
  5. [5]
    Under sections 77(1) and 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) a person who is involved in a building dispute can make an application to the Tribunal if that person has complied with established QBCC processes. The Tribunal is satisfied the matter concerns a domestic building dispute between a building owner and a building contractor. Attached to Mr Lipman’s Application for a domestic building dispute was evidence of QBCC processes being complied with and, for the purposes of this decision, the Tribunal is satisfied it has jurisdiction.
  6. [6]
    On 1 June 2023, the Tribunal directed that if Moran Investments failed to file a response to the Application for domestic building dispute by 4:00 pm on 29 June 2023, Paul Lipman may be entitled to a final decision against Moran Investments. Moran Investments did not file a response by the due date, and, on 23 August 2023, Mr Lipman filed an Application for miscellaneous matters seeking the Tribunal “find the matter in my favour” as Mr Moran (Moran Investments) had “repeatedly not complied” with instructions and the Tribunal’s Directions.[3]
  7. [7]
    The Tribunal made a decision on 8 November 2023 in the following terms:

There is a final decision in favour of Paul Lipman against Moran Investment Pty Ltd subject to the assessment of damages.

  1. [8]
    Although the Tribunal did not provide reasons for its decision, the initiating document appeared to be the Application for miscellaneous matters filed on 23 August 2023 in response to Moran Investments failing to file as directed.
  2. [9]
    The Tribunal did not determine whether Moran Investments was liable because of a breach of contract and/or because of negligence. In those circumstances, instead of proceeding to assess damages the Tribunal must establish the basis on which Moran Investments is liable.[4]

Contract Claim

  1. [10]
    Mr Lipman’s evidence is that he entered into the Contract with Coastal Patios on 5 October 2011. Part of the Contract was in writing and part of the Contract was oral. Mr Lipman told the Tribunal the oral terms of the Contract were formed from conversations between, in general, Mr Derek Fox and himself. The letter from Coastal Patios dated 28 September 2011, indicated Mr Derek Fox was a “Sales Consultant” for Coastal Patios. And, during the hearing, Mr Moran confirmed Mr Derek Fox worked for Coastal Patios as a Sales Consultant. Coastal Patios’ quote 4472 was from, and appeared to be signed by, Mr Derek Fox.
  2. [11]
    Section 8 of the Domestic Building Contracts Act 2000 (Qld) (the DBA Act)[5] defines domestic building work to include the renovation, alteration, extension, improvement or repair of a home. Section 7 of the DBA Act defines a domestic building contract to include a contract to carry out domestic building work. Section 13 of the DBA Act defines home to include a “residential premises” and section 26 states a regulated contract[6] must, amongst other things, be in writing, set out in full all the terms of the contact and be signed by both parties.
  3. [12]
    No copy of the written Contract was provided to the Tribunal and the Tribunal does not know whether the requirements under the DBA Act were complied with. However, even if the Tribunal found all the requirements of the Contract were met under the DBA Act, for the reasons outlined below, Mr Lipman does not have a claim in contract.

Who are the parties to a contract?

  1. [13]
    Under section 28(3)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) the Tribunal may inform itself in any way it considers appropriate when conducting a proceeding. Prior to the Tribunal hearing on 15 November 2024, the Tribunal conducted an Australian Securities and Investment Commission (‘ASIC’) company search for the ABN of Coastal Patios. That search indicated Coastal Patios was formerly known as Kenny and Eric Pty Ltd and was latterly known as Building Tewantin Pty Ltd. Coastal Patios was first registered on 31 October 2007 and was deregistered on 27 May 2015. The Tribunal conducted a QBCC Licence Search for Building Tewantin Pty Ltd and found Building Tewantin Pty Ltd held a QBCC licence from at least 16 May 2008.
  2. [14]
    The QBCC decision notice dated 10 January 2023 stated, “Moran Investment Pty Ltd is deregistered”. The Tribunal conducted an ASIC company search for the ABN of Moran Investments. That search indicated the ABN was first registered on 24 October 1994 and, prior to being Moran Investments, its name was Tony Moran Constructions Pty Ltd. Since 4 December 2018, the business name for Moran Investments is Obi Obi Homestead.
  3. [15]
    Mr Moran told the Tribunal he sold his patio business, but ASIC required him to keep Coastal Patios registered for a period of time after the sale. He changed Coastal Patios’ name from Coastal Patios to Building Tewantin Pty Ltd because the new owners of the business continued to use that name. He deregistered Coastal Patios as soon as he was able to. He said Moran Investments is his building company.
  4. [16]
    The Tribunal put to Mr Lipman the ASIC searches indicate he contracted with Paradise Patios and not Moran Investments. Mr Lipman responded that Mr Moran was a director of Paradise Patios and Moran Investments, and his Queensland Building Services Authority (‘QBSA’) licence number was on Coastal Patios’ quote. He submitted he had never heard of Building Tewantin Pty Ltd and could not understand why this issue had not been raised sooner. Mr Lipman did not understand ABN numbers but considered Moran Investments was the correct respondent.
  5. [17]
    Mr Moran told the Tribunal Moran Investments never entered into a contract with Mr Lipman, he did not install the Patio, he has never been to Mr Lipman’s home and he has never inspected the Patio.
  6. [18]
    The Tribunal provided the ASIC searches and Building Tewantin Pty Ltd’s QBSA licence number to all parties and gave Mr Lipman and Mr Moran time to provide further submissions after the hearings about who contracted with Mr Lipman. The Tribunal issued directions about when parties needed to provide further submissions and directed that a decision would be made after that date.
  7. [19]
    On 22 November 2024 Mr Lipman provided the following submissions:
    1. The Tribunal issued a direction on 1 June 2023 instructing him to provide a copy of Moran Investments’ ASIC search which he did.
    2. He questioned how the case could progress for another 17 months with an issue around this information. When he lodged his application, he named Coastal Patios as the first respondent and Mr Moran as their representative. However, every subsequent document referred to Moran Investments. He believes this is an internal Tribunal issue. On 8 November 2023, a Senior Member issued a final decision in his favour against Moran Investments subject to the assessment of damages. A Senior Member’s decision should not be overridden.
    3. Paradise Patios quote 4472 has Mr Moran’s QBSA (now QBCC) licence number on it and a simple search indicates that licence number belongs to Moran Investments. Moran Investments is still a registered company.
  8. [20]
    Mr Lipman also provided a letter dated 3 February 2024 from Stratco stating Moran Investments was trading as Coastal Patios.
  9. [21]
    On 27 November 2024 Mr Moran submitted:
    1. Moran Investments did not have a contract to build any structure for Mr Lipman, did not issue invoices to Mr Lipman and did not receive any money from Mr Lipman.
    2. Moran Investments never traded as Coastal Patios and has not  held a QBCC builders’ licence since 2012.
  10. [22]
    Who the parties are to a contract should be determined in accordance with the objective theory of contract. That is, who a reasonable person in the position of the known contracting party would think was the other contracting party.[7] Sometimes that question is closely linked to whether there was a contract at all, or whether the proposed other contracting party intended to create legal relations, both of which are also objective tests.[8] The objective test means that the subjective belief of Mr Lipman as to who he was contracting with is irrelevant. 
  11. [23]
    Coastal Patios’ quote 4472, Coastal Patios’ letters and Coastal Patios’ invoices included the Australian Business Number (ABN) 31 128 252 880. Coastal Patios’ quote 4472 also included the words “Anthony Moran QBSA # 700692”. Mr Moran told the Tribunal he was a director of Coastal Patios and acknowledged his QBSA number appeared on Mr Lipman’s quote.
  12. [24]
    Mr Moran’s QBSA licence number was 22610, Moran Investments’ QBSA licence number was 700692 and Coastal Patios’ QBSA licence number was 1142305. The Tribunal acknowledges Moran Investments’ QBSA licence number appeared on Paradise Patios’ quote 4472. However, whether Moran Investments’ QBSA licence or one of the other licences appeared on the actual Contract is unknown. The evidence before the Tribunal is Mr Lipman negotiated the Contract with a Sales Consultant of Paradise Patios. There is no evidence Mr Moran, or anyone else associated with Moran Investments, signed the Contract. That is, there is no evidence before the Tribunal to indicate Moran Investments or Mr Moran himself entered into a contractual arrangement with Mr Lipman to build the Patio. Mr Moran did not build Mr Lipman’s Patio, Paradise Patios provided invoices to Mr Lipman and Mr Lipman paid Paradise Patios by depositing money into Paradise Patios’ nominated bank account. The Tribunal finds a reasonable person in the position of the contracting parties would think Mr Lipman and Paradise Patios intended to create legal relations. If there was an enforceable contract, that contract was between Mr Lipman and Coastal Patios.
  13. [25]
    The Tribunal has found Mr Lipman entered into the Contract with Coastal Patios. Coastal Patios was deregistered on 27 May 2015 and the effect of its deregistration is Coastal Patios ceases to exist as a legal entity.[9] Coastal Patios is not a ‘person’ to a proceeding for the purposes of section 39 of the QCAT Act, and for legal proceedings against Coastal Patios to continue, it must be reinstated. This requires an application to ASIC or a court.
  14. [26]
    The Tribunal finds Coastal Patios, being deregistered, is no longer a legal entity and cannot be subject to any of the Tribunal’s powers under section 77 of the QBCC Act. That means that, even if the Tribunal had found there was an enforceable contract, that Contract is no longer enforceable.

Negligence claim

  1. [27]
    For Mr Lipman to be successful in a claim of negligence, he must prove Moran Investments owed him a duty of care, that Moran Investments breached that duty by failing to take reasonable care, that the breach resulted in damage to Mr Lipman and the damage is not too remote.
  2. [28]
    Mr Moran did not build Mr Lipman’s Patio and he has never been to Mr Lipman’s home. On 10 February 2012, Mr Neil Barralet (a building certifier) inspected Mr Lipman’s Patio and issued a Final Inspection Certificate. Mr Barralet certified Mr Lipman’s Patio had been built “in accordance with best industry practice.”[10]
  3. [29]
    Even if the Tribunal accepted Moran Investments QBSA licence number was on the Contract, the nominee for Paradise Patios was Mr Moran. Mr Moran was the person holding the technical qualifications for Paradise Patios and held a QBSA licence in his own right. Mr Moran, not Moran Investments, was responsible for ensuring the building of Mr Lipman’s Patio was adequately supervised and met all the relevant standards and codes. And the objective evidence is the Patio was built in accordance with best industry practice.
  4. [30]
    Moran Investments did not contract with Mr Lipman, Paradise Patios’ nominee was Mr Moran and, when Mr Lipman’s Patio had been completed, the objective evidence is that it was built in accordance with best industry practice. Based on the evidence before it, the Tribunal finds Moran Investments did not owe Mr Lipman a duty of care.

Assessment of damages

  1. [31]
    The Tribunal’s decision of 8 November 2023 is that Mr Lipman is entitled to a final decision against Moran Investments subject to the assessment of damages. That decision has not been appealed and Mr Lipman is correct that this decision cannot override the decision of 8 November 2023. However, the Tribunal has found Moran Investments did not contract with Mr Lipman and did not owe Mr Lipman a duty of care. The Tribunal finds the assessment of damages against Moran Investments is nil. In those circumstances, the most appropriate Order for the Tribunal to make is to dismiss the Application for a building dispute.

Stratco Structural Warranties

  1. [32]
    It is not in dispute Mr Lipman’s Patio was a Stratco ‘Outback’ which came with a 15 year structural guarantee. Mr Lipman approached Stratco about honouring its structural guarantee and, after an investigation, Stratco responded in an email dated 21 November 2022[11] that its structural warranties had been voided because:
  • Clause 4.1 - identifies the lack of maintenance, that’s why beams and offset columns are beginning to corrode, there would be salt build due to location, and this has not been regularly cleaned.
  • Clause 3.1.5 - identifies the columns are located into pavers where moisture builds up and as a result causes corrosion.
  1. [33]
    During the hearing, the Tribunal put to Mr Staff that the Stratco documentation about their warranties provided as part of their response to the Tribunal appeared to have been written after 2012 (in and around June 2013). The Tribunal asked Mr Staff to provide the documentation that was current at the time Mr Lipman entered into the Contract. Mr Staff agreed to provide the documentation, if he could, but assured the Tribunal the same installation and maintenance requirements were in place at the relevant time. Although Stratco did not provide further documentation, the Tribunal accepts Mr Staff’s evidence that the same installation and maintenance requirements were applicable at the time Mr Lipman entered the Contract.
  2. [34]
    Mr Moran’s evidence is that he did not install Mr Lipman’s Patio and has never inspected it. When the Tribunal put to Mr Moran that, given this, it was possible the Patio’s columns had not been installed in accordance with Stratco’s requirements, Mr Moran acknowledged that it was. However, he submitted Mr Lipman had not undertaken the required Stratco maintenance. Mr Lipman’s evidence was that, although he did not live at his home where the Patio was built until 2022, he assured the Tribunal regular maintenance as required by Stratco was carried out.
  3. [35]
    The DBC Act did, and the QBCC Act does, contain provisions related to manufacturer warranties. However, proceedings for breach of warranties under either Act must be commenced within six years and six months after the work was finished. Mr Lipman’s Patio was finished in February 2012, and he commenced proceedings in and around 2022. So, even if the Tribunal was satisfied Stratco met the requirements under the DBC Act to be a party to this domestic building dispute, Mr Lipman is out of time.
  4. [36]
    This case involves a domestic building dispute, and the Tribunal has no jurisdiction to determine whether the 15 year Stratco structural warranties have, or have not, been voided.

Orders

  1. [37]
    The application for  domestic building disputes is dismissed.

Footnotes

[1]See document titled Features & Benefits of the Outback Patio.

[2]See QBCC letter to Mr Lipman dated 10 January 2023.

[3]Application for miscellaneous matters filed by Mr Lipman on 23 August 2023.

[4]Hutchings v Arty Concreting Pty Ltd [2022] QCAT 81 at paragraphs 1-3.

[5]The repealed Domestic Building Contract Act 2000 (Qld) is applicable to all building contracts entered into before 1 July 2015.

[6]A contract more than the prescribed amount of $3,300.

[7]Pico Holdings, Inc v Wave Vistas Pty Ltd [2005] HCA 13.

[8]Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8.

[9]See section 601AD(1) of the Corporations Act 2001 (Cth).

[10]See Final Inspection Certificate.

[11]See email from Mr Adam Hardie (store manager) dated 21 November 2022.

Close

Editorial Notes

  • Published Case Name:

    Lipman v Coastal Patios Pty Ltd & Anor

  • Shortened Case Name:

    Lipman v Coastal Patios Pty Ltd & Anor

  • MNC:

    [2025] QCAT 32

  • Court:

    QCAT

  • Judge(s):

    Member Bishop

  • Date:

    16 Jan 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8
2 citations
Jump To
Cite 1 - [2002] HCA 8
Cite 2 - [2002] HCA 8
Hutchings v Arty Concreting Pty Ltd [2022] QCAT 81
2 citations
Jump To
Cite 1 - [2022] QCAT 81
Cite 2 - [2022] QCAT 81
Pico Holdings Inc v Wave Vistas Pty Ltd (formerly Turf Club Australia Pty Ltd) & Anor [2005] HCA 13
2 citations
Jump To
Cite 1 - [2005] HCA 13
Cite 2 - [2005] HCA 13

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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