Banks v Australian Garages and Carports [2023] QCAT 494

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Banks v Australian Garages and Carports [2023] QCAT 494 PARTIES: MICHELLE BANKS (applicant) v AUSTRALIAN GARAGES AND CAR PORTS (respondent) APPLICATION NO/S: BDL110-21 MATTER TYPE: Building matters DELIVERED ON: 15 December 2023 HEARING DATE: 23 August 2022 HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: The application for domestic building dispute filed 20 May 2021 is dismissed. The counter-application filed 7 July 2021 is dismissed. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERAL – where applicant contracted respondent to construct a carport – where applicant approved a site plan and its specifications – where applicant later disputes the specifications in the site plan – whether applicant is bound by the agreement and liable to pay the balance of the contract price – whether respondent has breached agreement APPEARANCES & REPRESENTATION: Applicant: Self-represented. Respondent: Self-represented. REASONS FOR DECISION [1] The application and counter application in this matter arises from the construction of a carport by Australian Garages and Carports Pty Ltd (AGC) on Ms Banks’s property in Boronia Heights Queensland in 2020. -- 1 of 3 -- 2 [2] Ms Banks and Odin Gatt, Director of AGC, entered into a contract on 6 February 2020. Ms. Banks says that in pre contract negotiations with Mr. Gatt she specified that it be constructed 50 centimetres from her boundary. Mr. Gatt denies this. [3] At the same time, Ms Banks’ contractor, Smith and Sons, was carrying out renovations at the property. The contractor was to draw the site plan and obtain all necessary Council approvals. [4] Mr. Gatt was aware that Ms Banks intended to install a door and side panels to the carport, but that did not form part of his contract. [5] Mr. Gatt submitted a site plan (exhibit 3) which Ms Banks approved on 20 February 2020. The site plan specified that the carport was 50 millimetres from the boundary. [6] Ms Banks said she misread the plan and consequently approved it in error. Notwithstanding this, Mr. Gatt relied on the approval and commenced construction. [7] AGC commenced construction before the Council approved plans were available and they differed substantially from the plan he relied on. Ms Banks says that she advised Mr. Gatt that the carport was in the wrong position. Mr. Gatt says that by that stage the frame had been concreted in. [8] AGC provided a Form 15 compliance certificate for the structure on or about 17 February 2020. [9] The Council has required the construction of a firewall because the structure is so close to the boundary. [10] Evidence filed by both parties was unsatisfactory consisting of copies of various documents with little or no explanation or context given. Both Mr. Gatt and Ms Banks gave oral evidence, but that did not overcome deficiencies in the evidence completely. [11] While Mr. Gatt concedes the construction of the carport before Council approval was ill advised, the contract did not require him to obtain it and his construction was in accordance with plans that had been provided to Ms Banks, which she had, albeit mistakenly, approved. [12] The relief sought by Ms Banks is to “move the current completed structure to be 500 millimetres from the side boundary so as to avoid the need for a firewall to be constructed.”1 Those works are to be carried out at AGC’s expense. [13] AGC’s counter application is for payment of the balance of the contract price, name of the sum of $2076. Conclusion [14] The tribunal does not have the power to grant what is effectively injunctive relief sought by Ms Banks. The appropriate remedy, if any, in this case would be compensation. Ms Banks has provided no evidence of the cost of works she seeks to be undertaken or the cost of installing the firewall. On that basis, the application is dismissed. 1 In Application part C. -- 2 of 3 -- 3 [15] Mr. Gap did not provide any evidence for the amount outstanding and for that reason the counter application is also dismissed. -- 3 of 3 --