Abbott Builders (Qld) Pty Ltd v Forrest

Case [2023] QCATA 141

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Abbott Builders (Qld) Pty Ltd v Forrest & Anor [2023] QCATA 141

PARTIES:
ABBOTT BUILDERS (QLD) PTY LTD

(appellant)

v

PHILLIP FORREST
(FIRST RESPONDENT)

JAN FORREST

(second respondent)

APPLICATION NO/S:

APL166-22

ORIGINATING APPLICATION NO/S:

BDL280-19

MATTER TYPE:

Building matters

DELIVERED ON:

1 November 2023

HEARING DATE:

14 August 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     The application by the applicant to rely upon further evidence is refused.

2.     The application by the respondents to rely upon further evidence is dismissed.

3.     Leave to appeal is granted.

4.     The appeal is allowed.

5.     Order 1 of the decision of the Tribunal dated 4 May 2022 is varied by substituting ‘$42,425.50’ with ‘$38,496.59’.

6.     The parties are to file and exchange submissions on the costs of the appeal, not exceeding five (5) pages in length within 14 days of the date of this decision.

7.     The costs of the appeal will be determined on the papers.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL –  GENERAL PRINCIPLES –  RIGHT OF APPEAL –  NATURE OF RIGHT –  APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING –  APPEALS BY WAY OF REHEARING –  WHEN REHEARING DOES NOT INVOLVE HEARING DE NOVO –  where leave to appeal should be granted on the basis that there was error in the primary decision and is required to correct a substantial injustice – where the appeal tribunal gives consideration to the findings of fact of the primary tribunal –  whether the rehearing is limited to a consideration of those matters raised in the grounds of appeal

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN ALLOWED TO BE RAISED ON APPEAL – OTHER MATTERS – OTHER CASES – where the appellant says the tribunal does not have jurisdiction to decide a building dispute on the basis that s 77(2) of the QBCC Act has not been complied with – where the matter was not raised in the proceeding below and neither party led evidence on the issue – whether the appellant may adduce fresh evidence – whether the tribunal had jurisdiction to decide the dispute

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS –  INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS –  whether the tribunal erred in finding that a retaining wall was not constructed in accordance with the terms of the contract –  whether the tribunal erred in finding that the contract required a solid stud wall in an ensuite –  whether the tribunal erred in finding that the conduct of the appellant deprived the respondents of the ability to claim off–set for late completion damages under the contract – whether upon a proper construction of the contract payment of the final claim by the owners deprived them of the right to claim liquidated damages

DAMAGES – ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT –  PARTICULAR HEADS OF LOSS –  FUTURE LOSS –  where the…

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Details
AGLC
Abbott Builders (Qld) Pty Ltd v Forrest [2023] QCATA 141
Case
[2023] QCATA 141
Decision Date

CaseChat Overview and Summary

Abbott Builders (Qld) Pty Ltd appealed against a decision of the Queensland Building and Construction Commission (QBCC) Dispute Resolution Tribunal, which found in favour of Forrest in a building dispute. The appeal was heard by the Appeal Tribunal of the QBCC. The primary dispute centred on whether Abbott had properly constructed a retaining wall, an ensuite wall, and the method of calculating future costs of termite protection, as well as the entitlement to liquidated damages for late completion.

The legal issues before the Appeal Tribunal included whether the QBCC Dispute Resolution Tribunal had jurisdiction to decide the building dispute, whether fresh evidence could be introduced on appeal, and whether the Tribunal had erred in interpreting the contract and assessing damages. Specifically, the Tribunal had to determine whether the contract required a solid stud wall for the ensuite, whether Abbott's conduct deprived Forrest of the ability to claim offset for late completion damages, and whether the method of calculating future costs of termite protection was erroneous.

The Appeal Tribunal held that the QBCC Dispute Resolution Tribunal had jurisdiction, and Abbott could not introduce fresh evidence on appeal. The Tribunal found that there was an error in the primary decision regarding the construction of the ensuite wall, which was not supported by the evidence and contradicted other findings. The Tribunal concluded that the contract required a solid stud wall in the ensuite and that the correct interpretation of the contract mandated this. Furthermore, the Tribunal found that the method of calculating future costs of termite protection did not result in a windfall and no discount rate should be applied. The Tribunal reduced the amount payable by Abbott to Forrest by $3,928.91, bringing the total to $38,496.59.

In summary, the Appeal Tribunal granted leave to appeal and allowed the appeal in part, varying the amount payable by Abbott to Forrest. The Tribunal ordered that Abbott's application to rely on further evidence was refused, Forrest's application to rely on further evidence was dismissed, and the costs of the appeal would be determined on the papers.

Orders

Orders of the court

1. The application by the applicant to rely upon further evidence is refused.

2. The application by the respondents to rely upon further evidence is dismissed.

3. Leave to appeal is granted.

4. The appeal is allowed.

5. Order 1 of the decision of the Tribunal dated 4 May 2022 is varied by substituting ‘$42,425.50’ with ‘$38,496.59’.

6. The parties are to file and exchange submissions on the costs of the appeal, not exceeding five (5) pages in length within 14 days of the date of this decision.

7. The costs of the appeal will be determined on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The statement by the Appeal Tribunal is directly relevant for present purposes. The Forrests applied to the QBCC in relation to the dispute. This was an appropriate and prudent step to take. The QBCC wrote to the Forrests advising them that they had participated in the QBCC’s dispute resolution as prescribed by the QBCC Act with the result that the Tribunal was not required to determine the extent of its jurisdiction by reference to the nature and extent of the QBCC’s dispute resolution processes that may have existed at the time. If Abbott wished to challenge the issue of compliance by the Forrests with s 77(2) it had the opportunity to do so in the proceeding below including, for example, by leading evidence as to its involvement with the QBCC and any relevant dispute resolution process (or absence thereof). The only evidence before the Tribunal below on the issue of compliance by the Forrests with s 77(2) was the letter from the QBCC dated 28 August 2019. That letter is sufficient to conclude that the Forrests complied with the requirements of s 77(2) before commencing the proceeding. Conclusion The learned member assessed the Forrests entitlement to damages in the amount of $42,425.50. The only items of damage contested by Abbott in the appeal relate to the claim for liquidated damages, and the claims relating to the retaining wall, the ensuite wall and the termite protection. Of these claims, only the finding allowing for the cost of the ensuite shower wall is infected by error. Accordingly, the total amount payable by Abbott to the Forrests is reduced by an amount of $3,928.91. I make the following orders:(a)The application by Abbott to rely upon further evidence is refused.(b)The application by the Forrests to rely upon further evidence is dismissed. (c)Leave to appeal is granted.(d)The appeal is allowed.(e)Order 1 of the decision of the Tribunal dated 4 May 2022 is varied by substituting ‘$42,425.50’ with ‘$38,496.59’. (f)The parties are to file and exchange submissions on the costs of the appeal, not exceeding five (5) pages in length within 14 days of the date of this decision. (g)The costs of the appeal will be determined on the papers.

Ratio Decidendi

Legal Principle Established

The relevant principles applicable to an application for leave to appeal are well established: is there is a reasonably arguable case of error in the primary decision?;[10] is there a reasonable prospect that the appellant will obtain substantive relief?;[11] is leave needed to correct a substantial injustice caused by some error?;[12] is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[13][10]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).[11]Cachia v Grech [2009] NSWCA 232.[12]QUYD (n 10).[13]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.Consideration For reasons that will become apparent, I will first address ground of appeal 3. Ground of appeal 3 The learned member found that the contract required Abbott to construct a solid (stud) wall for the ensuite shower.[14] Abbott says that the finding is contrary to other findings made by the learned member and was not supported by the evidence. [14]Reasons [176]. It was Abbott’s contention below that the plans indicated that the third wall in the ensuite was not a solid stud wall. The evidence of Mr Paterson, Abbott’s construction manager, was that it was industry practice for solid walls on a plan to be depicted by a double line. The Forrests’ quantity surveyor, Mr Burgess, gave similar evidence. The learned member accepted that the plan showed the third wall in the ensuite as only a single, and not a double, line and found that the single line drawing shown on the plan would not mean a solid stud wall.[15] However, the learned member found that the specification required the construction of a solid stud wall and that the specification took precedence over the plans.[16][15]Reasons [170].[16]Reasons [172]. It is not contentious in this appeal that, in construing the contract, the specification took precedence over the plans. Abbott says however that the specification must be relevant. It is therefore necessary to examine more closely the specification. Item 21.7 of the specification relates to ‘shower recess wall’. The specification provided for ‘stud wall, rectified tiles as per Beaumont tile spec.’ The Beaumont Tiles specification which pre-dates the contract was, by virtue of its being referred to in the principal specification, incorporated into the principal specification. Abbott says that the Beaumont Tiles specification was confined to tile selection and was not relevant to structural issues relating to the build. The learned member correctly identified that in construing the contract the specifications took precedence over the plans. The learned member correctly identified that the Beaumont Tiles specification formed part of the contractual specifications. The principles applicable to the construction of a contract are well established. The terms of a contract should be construed so as to give them the meaning intended by the parties. That meaning is to be determined objectively: what would a reasonable person think was intended by the term? Evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.[17] [17]Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24.