Al Builders Pty Ltd v Fatseas

[2015] QCAT 166

CITATION: AL Builders Pty Ltd v Fatseas [2015] QCAT 166

PARTIES:	A L Builders Pty Ltd (Applicant)
v
Nicholas Fatseas and Tricia Fatseas (Respondents)

APPLICATION NUMBER: BDL302-12

MATTER TYPE: Building matters

HEARING DATE: 1- 5 December 2014

HEARD AT: Brisbane

DECISION OF: Member King-Scott

DELIVERED ON: 8 May 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Applicant’s claim is dismissed;

2.    The Respondents’ counterclaim is allowed in the sum of $191,559.86 with interest of $14,064.34;

3.    The Applicant to pay the Respondents $205,624.20 by 4.00 pm on 31 July 2015.

4.    I direct that written submissions, if any, in respect of costs be filed by the Respondents by 1 June 2015 and any reply, by the Applicant, by 14 June 2015.

CATCHWORDS:

Building dispute – Fixed price contract or costs plus contract – Contract not in writing – Acceptance by conduct – Written contract a sham – Effect of Domestic Building Contracts Act 2000 on oral costs plus contract and s. 55(4) discretion – implication of terms – quantum meruit claim – Failure to mitigate

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr L D Bowden of Counsel instructed by Nicholas Radich solicitor.

RESPONDENT: Mr M Williams of Counsel instructed by Robert Casalegno solicitor.

REASONS FOR DECISION

Introduction

[1]The Respondents, Mr and Mrs Fatseas, entered into a contract with Deep North Developments Pty Ltd (Deep North) to build a house at 20 Admiralty Drive, Paradise Waters in 2007.  That company went into receivership and was unable to complete the contract.  The Applicant, A L Builders Pty Ltd (“A L Builders”), submitted a quote to the Building Services Authority (BSA) to rectify and complete the work, There were two quotes, the Applicant’s was the lowest at $1,098,939.60. Previously, the Applicant had been involved in the original construction as a form work subcontractor.

[2]The house was designed by architect Paul Clout. It’s construction consisted of wooden floors, wooden louvre windows, curved walls and involved the extensive use of natural stone and marble. All these features created challenges for the builder.  At the time the Applicant took over the construction all of the structural work had been completed.  The house consisted of two storeys and a basement.  The roof was substantially on and the windows and outside doors had been installed.  Some of the internal gyprock lining had been completed.  It seems not to be disputed that the house had reached a lock-up stage.[1] 

[1]Transcript Day 3 1-20 line 3.

[3]Mr and Mrs Fatseas made a successful claim on the Queensland Building Services Authority (QBSA) statutory insurance scheme. An amount of $200,000 as an insurance payment was approved to be paid to the contractor engaged to complete the work.

[4]The Building Services Authority (BSA) invited quotes for rectification work to be undertaken at the Respondents’ property. The Applicant provided a quote in response to an invitation to tender by the BSA. The Applicant responded to the BSA Scope of Work for Incomplete Building Work as follows:

1. To carry out all necessary work to…