Jones and Anor v Rutch Constructions Pty Ltd [2022] QCAT 82

David Pearce |  Hazal Gacka  |  Yibing Mao

Key takeout

• Courts and tribunals will not accept mere denials of allegations of breach of contract unsupported by evidence. Parties defending a claim must have sufficient and specific evidence to support the denial of claims made against them. 
  
• If an expert witness recommends that more stringent and sophisticated evidence is required in order to prove or disprove an allegation in issue, and the party relying on that expert’s opinion has the power to obtain such evidence, it should do so to allow the court or tribunal to make a thorough assessment. Failure to obtain evidence recommended by a party’s expert may result in greater weight being given to the evidence advanced by the opposing party.

Facts

This case concerned a dispute over building defects in a residential property. It was alleged that the defects were caused by the builders failing to comply with their obligations under the contract and breaches of implied warranties under the now repealed Domestic Building Contract Act 2000 (Qld).

The applicants, Eric Jones and Lorraine Johnston (homeowners) engaged Rutch Construction Pty Ltd (Rutch Construction) to build their residential property in 2013 using a Master Builders Residential Building Contract (contract). Rutch Construction provided the usual warranties under the contract including carrying out the works in compliance with plans and specifications. Rutch Construction’s quote for the works also expressly provided for compliance with the Building Code Australia (BCA) and all relevant standards.

Within 6 months of completion, the homeowners began to notice water ingress at the property. A detailed history of complaints (including photographic evidence) was kept from 2014 to 2019 and the homeowners raised this issue with Rutch Construction multiple times. Rutch Construction made at least seven attempts to rectify defects without success. Rutch Construction also undertook work that was not approved by the homeowners and not in accordance with contract drawings or specifications.

Both parties engaged experts to determine the cause of the water ingress.

Decision

The parties’ experts agreed on very little as to the cause of the water ingress, therefore the Tribunal examined both reports in detail. The homeowners’ detailed records of the damage between 2014 to 2019 was crucial.

The Tribunal found that Rutch Construction’s expert report did not address the numerous breaches of the contract, legislation, Australian Standards and the BCA levelled at Rutch Construction in the homeowners’ expert report.  Rutch Construction’s expert also criticised the homeowners’ reliance on moisture meter data and suggested more strident, scientific testing was required. However, Rutch Construction did not follow through with this suggestion and no such evidence was obtained.

In assessing the parties’ evidence, the Tribunal was of the opinion that the parties had equal power to produce and contradict each other’s evidence and that all evidence should be weighted in accordance with this position of parity. The Tribunal found that Rutch Construction had the power to seek further scientific evidence to support the denial of the claims made against them, but failed to do so. The Tribunal concluded it could only rely upon the homeowner’s records and the moisture meter evidence in the homeowner’s expert report.   The Tribunal accepted the evidence of the homeowners as well as the detailed record of the water ingress as proof of Rutch Construction’s breach. Rutch Construction was ordered to pay the cost of rectification to the homeowners.