Lida Build Pty Ltd v Miller ( No 2)

[2014] QCAT 179

CITATION: Lida Build Pty Ltd v Miller ( No 2) [2014] QCAT 179

PARTIES:	Lida Build Pty Ltd (Applicant)
v
Peter Miller and Susan Miller (Respondent)

APPLICATION NUMBER: BD314-09

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Cotterell

DELIVERED ON: 28 April 2014

DELIVERED AT: Brisbane

AMENDED ORDERS MADE:

1.    Peter Miller and Susan Miller shall pay Lida Build Pty Ltd the sum of $33,188.98.

2.    Peter Miller and Susan Miller shall pay Lida Build Pty Ltd interest on the sum of $33,188.98 at the rate of 14.98 per cent payable from the date of this Order until and including the day the amount is paid.

3.    Lida Build Pty Ltd shall allow Peter Miller and Susan Miller a deduction from the amount to be paid to it for interest on the sum of $2,500.00 at the rate of 14.98 per cent payable from the date of this Order until and including the day the amount is paid.

CATCHWORDS:

Correction of an error arising from an accidental slip

Queensland Civil and Administrative Tribunal Act 2009 s 135

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The matter came back to this Tribunal on the basis of the Appeal Tribunal’s decision of 30 April 2013 which involved the following decisions and Orders:

1.    On the appeal of Lida Build Pty Ltd the appeal is allowed in part.

2.    The decision of the Tribunal made on 26 March 2012 is set aside.

3.    The respondent must pay to the applicant $25,795.78 by 30 May 2013.

4.    The decision of the Tribunal in regard to the roof pitch claim for rectification in the amount of $37,638.98 is set aside.

5.    The Tribunal is directed to determine, in accordance with this decision that because the contract required the roof pitch of the pool house to match the roof pitch of the existing house whether damages should be awarded on the Millers counterclaim to be assessed on the basis of the cost to rectify the pitch to 25° or whether damages be assessed by way of diminution in value, and if so what amount.

6.    That in considering the question in direction 5 the Tribunal must give consideration to any amount to be allowed for rectification of the fascia

7.    On the appeal of Susan Miller and Peter Miller the appeal is dismissed.

1. The Appeals Tribunal acknowledged  that Lida Build was entitled to the amount  of $72,767.47 in respect of its claim subject to the following counterclaims by the Millers:

   a)     Late completion damages = $4,200

   b)     Claim for shuttering = $3,865.21

   c)     Minor defect = $1,267.50

   Total = $9,332.71

2. Accordingly, there was a balance of $63,434.76 ($72,767.47 less $9,323.71) payable from the Millers to Lida Build, which amount did not include damages of $1,950 in relation to the height of the fascia.

3. However, in paragraph [60] of the Appeals Tribunal decision, the Appeals Tribunal stated that the Millers should pay Lida Build the sum of $61,484.76, which clearly took into account the Miller's claim for $1,950 for damages relating to the rectification of the height of the fascia to pump room/games room ($63,434.76 less $1,950 = $61,484.76) even though this was not stated.

4. This Tribunal, in paragraphs [52] and [53] of its decision dated 7 April 2014, used the Appeals Tribunal figure of $61,484.76 and deducted $1,950 for damages in relation to the fascia height which left a balance of $31,238.98.

5. As the sum of $61,484.76 had taken into account the sum of $1,950 for damages for the fascia height, clearly no further deduction should have been made for these damages against the money awarded to Lida Build by the Appeals Tribunal.

6. This Tribunal accepts that following the decision of the Appeals Tribunal and this Tribunal the Millers should pay Lida Build the sum of $33,188.98 being made up as follows:

   a)     Lida Build's entitlement of $72,767.47 awarded by the Appeals Tribunal;

   b)     Less the Miller's entitlement of $9,332.71 awarded by the Appeals Tribunal;

   c)     Less $2,500 for nominal damages for the overhang awarded by this Tribunal;

   d)     Less $1,950 for damages for height of fascias awarded by this Tribunal;

   e)     Less $25,795.78 for the payment by the Millers made on 31 May 2013 as per the Appeal Tribunal's decision of 30 April 2013.

7. On this basis this Tribunal corrects the error arising from an accidental slip and makes the following amended orders:

AMENDED ORDERS

1. Peter Miller and Susan Miller shall pay Lida Build Pty Ltd the sum of $33,188.98.

2. Peter Miller and Susan Miller shall pay Lida Build Pty Ltd interest on the sum of $33,188.98 at the rate of 14.98 per cent payable from the date of this Order until and including the day the amount is paid.

3. Lida Build Pty Ltd shall allow Peter Miller and Susan Miller a deduction from the amount to be paid to it for interest on the sum of $2,500 at the rate of 14.98 per cent payable from the date of this Order until and including the day the amount is paid.