Broadbeach Building Pty Ltd v Dennis Said t/as Joinery and Granite Installations [2017] QCAT 410

CITATION: Broadbeach Building Pty Ltd v Dennis Said t/as Joinery and Granite Installations [2017] QCAT 410 PARTIES: Broadbeach Building Pty Ltd (Applicant) v Dennis Said t/as Joinery and Granite Installations (Respondent) APPLICATION NUMBER: BDL320-16 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Holzberger DELIVERED ON: 1 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Dennis Said t/as Joinery and Granite Installations pay to Broadbeach Building Pty Ltd the sum of $30,642.51 by 4:00pm on 15 December 2017. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – JUDGMENT IN DEFAULT OF OTHER REQUIRED STEP – where applicant applied for default judgment following the respondent’s repeated failure to comply with directions of the tribunal CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where domestic building dispute – where unliquidated damages claim – calculation of damages – where claim for delay costs This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Broadbeach Building Pty Ltd made an application for commercial building dispute to the Tribunal on 13 December 2016 for unliquidated damages for breach of contract by Dennis Said trading as Joinery and Granite Installations. Mr Said failed to supply and install a kitchen in residential premises being refurbished by Broadbeach Building Pty Ltd at unit 2, Platinum on the Beach, Surfers Paradise. [2] On 17 January 2017, the Tribunal directed that the application proceed as an application for domestic building dispute. [3] Mr Said has failed to comply with other directions issued by the Tribunal on 17 January 2017, 24 March 2017, 15 May 2017 and 14 June 2017. [4] Broadbeach Building Pty Ltd requests a decision by default. That request is supported by an affidavit of service filed on 21 March 2017 and a statement of Simon Barlow, the sole director of Broadbeach Building Pty Ltd, signed by him and filed on 13 July 2017. [5] Broadbeach Building Pty Ltd claimed the sum of $50,000 plus interest and costs particularised as follows: a) Replacement kitchen $32,523.51 b) Delay cost $26,822.68 [6] That amount was reduced by deducting the sum of $2,196.70, being the amount unpaid under the contract between Broadbeach Building Pty Ltd and Mr Said and further reducing the delay cost component to reduce the total claim to fit within the $50,000 limit for commercial disputes without consent. There is no similar restriction for domestic building disputes. [7] I am satisfied that the application has been served in accordance with QCAT practice direction 8 of 2009 on 22 February 2007 by delivering it personally to someone, apparently an adult, at 10 Frascati Street, Mermaid Waters.1 [8] I make the following findings of fact: a) Broadbeach Building Pty Ltd and Dennis Said entered a contract to build a replacement kitchen on 15 October 2015 for the price of $21,967; b) Broadbeach Building Pty Ltd has paid Dennis Said a sum of $19,770 for those works; 1 Affidavit of service, Part B3. -- 2 of 3 -- 3 c) Dennis Said has breached the contract by failing to supply and install a kitchen; and d) Broadbeach Building Pty Ltd has suffered a loss as a result of that breach. [9] I am satisfied that the cost of replacing the kitchen is a reasonable and foreseeable consequence of Mr Said’s breach and that the amount claimed is reasonable in all the circumstances. [10] I am not similarly satisfied in respect of the claim for delay costs. The contract between Broadbeach Building Pty Ltd and the owners of the unit specified liquidated damages at $50 per day or $350 per week. The amount claimed, approximately three times that amount, was apparently negotiated after the parties to these proceedings contracted and could hardly be said to be a foreseeable consequence of breach. [11] I am also not satisfied that Mr Said is solely responsible for the delays under the head contract. The delay costs are said to be for the period from 21 September 2015 to the end of May 2016. [12] Mr Barlow says that after 3 April 2016 he was ringing Mr Said regularly because “our building work in the unit was largely finished”.2 [13] Burleigh Building Pty Ltd bears the onus of proving its damages. It has failed to do so in respect of the delay costs. [14] I award damages to Broadbeach Building Pty Ltd for the replacement of the kitchen in the sum of $30,326.81, calculated as the amount claimed of $32,523.51 less the sum off $2,196.70 unpaid under the contact. [15] I allow Broadbeach Building Pty Ltd the filing fees of $315.70. [16] I order that Dennis Said pay Broadbeach Building Pty Ltd the sum of $30,642.51 by 4:00pm on 15 December 2017. 2 Statement of Simon Barlow, paragraph 12. -- 3 of 3 --