Area Square Pty Ltd v Hill-Douglas - [2010] QCAT 8

CITATION: Area Square Pty Ltd v Hill-Douglas & Anor [2010] QCAT 8

PARTIES: Area Square Pty Ltd

v
Sholto Hill-Douglas and Louise Hill-Douglas

APPLICATION NUMBER: BD017-08

MATTER TYPE: Building Matter

HEARING DATE: 10 and 11 December 2009

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 20 January 2010

DELIVERED AT: Brisbane

ORDERS MADE: The Applicant pay to the Respondents the sum of $5,944.31 by 4 pm on 26 February 2010.

CATCHWORDS: Contractual building dispute, claim for money due pursuant to signed variations, where variations signed under duress; counterclaim for damages for rectification to leaking swimming pool.

APPEARANCES and REPRESENTATION (if any):

Mr Thomson of counsel for the applicant

Ms Hatten, solicitor, for the respondents.

Introduction

The applicant is a registered builder. Its directors are Matthew Campbell and Michelle Gunn. The respondents are the owners of land at 9 Herbert St Toowong.

In the early part of 2006 the Applicant, through Mr Campbell, and the respondents commenced negotiations with a view of entering into a contract for the construction of house on the land in accordance with plans prepared by Brenton Rasheed, Architect. An initial quote for the construction was provided in February 2006 with a further quote provided in May 2006. On 11 May 2009 the parties entered into a building contract[1] to construct the house generally in accordance with the plans provided. The contract price was $629,000.00 inclusive of GST. A deposit was paid of $31,450.00.
[1] Ex 3 “MC1”

All that remained for the project to proceed was a Development Approval (“DA”) from the Brisbane City Council (Council”). This was the responsibility of the respondents. Problems arose with the DA, essentially the Council maintained that the project was Character Code Assessable because of the area in Toowong in which the land was located. To accommodate the Council and obtain the DA the respondents had to change the plans.

Finally a DA was issued by the Council on 30 August 2006.the applicant was prevented from commencing work until the approval issued. This according to Mr Campbell put the applicant in a very difficult situation. Quite obviously given the size of the project, he could not take on other work whilst waiting for the approval but at the same time, had to keep his sub trades in work if possible.
As the approval had not issued within the time prescribed by the contract Mr Campbell informed the respondents that it was his intention to cancel the contract to enable the applicant to take on other work. He indicated to Mr Hill-Douglas that he would be happy to consider the job again when the approval came through, which impliedly necessitated preparing a further quote, and presumably if accepted, entering into new contract.
These matters are deposed to in the statement of Mr Campbell[2]. Mr Hill-Douglas does not challenge this evidence in any direct or meaningful way other than to say that he disagrees, and that no such conversations occurred.
[2] Exhibit 3 para 21-22
Mr Campbell goes further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 8
Decision Date: 20 January 2010

CaseChat Overview and Summary

Area Square Pty Ltd (the Applicant) commenced proceedings against Sholto Hill-Douglas and Louise Hill-Douglas (the Respondents) in the Queensland Civil and Administrative Tribunal seeking payment of an amount owing under a building contract. The Applicant also sought payment for certain variations to the contract and damages for the Respondents' failure to pay the amounts claimed. The Respondents filed a counterclaim seeking damages for alleged defects in the building works and the rectification of those defects. The Tribunal was required to determine the validity of the Applicant's claims and the Respondents' counterclaims. The Tribunal found that the Applicant was entitled to be paid for the driveway, but not for the other variations claimed. The Tribunal also found that the Respondents were entitled to be paid for the rectification of the swimming pool. Accordingly, the Tribunal ordered that the Applicant pay the Respondents the sum of $5,944.31.

The primary issue before the Tribunal was whether the Applicant was entitled to be paid for the variations claimed and whether the Respondents were liable to pay for the rectification of the swimming pool. The Tribunal considered the evidence of the parties and the experts, and found that the Applicant was entitled to be paid for the driveway but not for the other variations claimed. The Tribunal also found that the Respondents were entitled to be paid for the rectification of the swimming pool. The Tribunal held that the evidence established that the parties had agreed to the variation for the driveway and that the Respondents had the benefit of the tile credit. The Tribunal also held that the Respondents were liable for the cost of the swimming pool rectification because the leak was caused by the Applicant's failure to apply a waterproofing membrane before tiling the pool. The Tribunal rejected the Respondents' claims for rectification of the cornices and the air conditioning system, and the Applicant's claim for the rendering.

Orders