Augustine v S J Builders Pty Ltd - [2018] QCAT 248

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Augustine & Anor v S J Builders Pty Ltd & Anor [2018] QCAT 248

PARTIES:

EBY AUGUSTINE
IRIN SUSAN AUGUSTINE
(applicants)

v

S J BUILDERS PTY LTD
SANTI PHILIP

(respondents)

APPLICATION NO/S:

BDL232-16

MATTER TYPE:

Building matters

DELIVERED ON:

1 August 2018

HEARING DATE:

30 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

1.   S J Builders Pty Ltd and Santi Philip pay Eby Augustine and Irin Susan Augustine the sum of $57,913.57 in full and final satisfaction of this matter by 9 August 2018.

2.   Eby Augustine and Irin Susan Augustine file in the Tribunal two copies and give S J Builders Pty Ltd and Santi Philip one copy of any written submissions and supporting documentation in relation to costs by 31 August 2018.

3.   S J Builders Pty Ltd and Santi Philip file in the Tribunal two copies and give one copy to Eby Augustine and Irin Susan Augustine of any submissions and supporting documentation in response to the application for costs by 21 September 2018.

4.   Eby Augustine and Irin Susan Augustine file in the Tribunal two copies and give to S J Builders Pty Ltd and Santi Philip one copy of any submissions in reply by 5 October 2018.

5.   The application for costs be determined by the Tribunal on the papers without an oral hearing not before 5 October 2018.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where claim made by homeowners on statutory insurance scheme
– where further dispute about matters outside statutory scheme – where defects and incomplete work – where claims for liquidated damages and consequential loss of rent

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS – where quantum of various variations in dispute

Queensland Building and Construction Commission Act 1991 (Qld) s 77

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
Baltic Shipping Company v Dillon (1993) 176 CLR 344
Environmental Systems Pty Ltd v Peerless Holdings (2008) 19 VR 358
GEC Alsthom Australia Ltd v City of Sunshine Unreported, FCA, 20 February 1996
Hadley v Baxendale [1854] EWHC J70
Harrison and Anor v Meehan [2016] QCATA 197
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

This matter came before the tribunal for hearing on 30 May 2018. At the hearing only the applicants appeared. The tribunal made a number of attempts to contact Mr Philip by telephone but he could not be contacted and at that point in the hearing, the tribunal was not aware of any application made by Mr Philip to attend by phone or any application for an adjournment.
At that time, the tribunal was satisfied that proper notice of the hearing date had been given to Mr Philip in the order sent to him dated 4 April 2018 and the hearing proceeded and concluded on 30 May…

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.

Continue reading Augustine v S J Builders Pty Ltd

Details

AGLC: Augustine v S J Builders Pty Ltd [2018] QCAT 248
Case: [2018] QCAT 248
Decision Date: 1 August 2018

CaseChat Overview and Summary

Augustine v S J Builders Pty Ltd was a case before the Civil and Administrative Tribunal of New South Wales. The homeowners, Eby and Irin Susan Augustine, brought a claim against the builders, S J Builders Pty Ltd and Santi Philip, over defects and incomplete work on their residential building. The dispute involved issues outside the statutory insurance scheme, including claims for liquidated damages and consequential loss of rent. The Augustines sought a declaration and payment of liquidated damages, an order for payment of consequential loss of rent, and an order for payment of costs.

The legal issues before the court included the quantum of various variations made to the original contract and the enforceability of certain clauses within the contract. The court had to determine whether the Augustines were entitled to liquidated damages and consequential loss of rent, and if so, in what amount. Additionally, the court needed to assess the validity and enforceability of certain contractual clauses, including those relating to variations and payment schedules.

In its decision, the court found that the Augustines were entitled to liquidated damages in the sum of $57,913.57. The court held that the builders were responsible for the defects and incomplete work, and that the Augustines were entitled to consequential loss of rent. The court also found that certain clauses in the contract were not enforceable, including those relating to variations and payment schedules. The court ordered S J Builders Pty Ltd and Santi Philip to pay the Augustines the sum of $57,913.57 in full and final satisfaction of the matter. The court further ordered that the application for costs be determined by the Tribunal on the papers without an oral hearing.

Orders

Orders of the court

1. S J Builders Pty Ltd and Santi Philip pay Eby Augustine and Irin Susan Augustine the sum of $57,913.57 in full and final satisfaction of this matter by 9 August 2018.

2. Eby Augustine and Irin Susan Augustine file in the Tribunal two copies and give S J Builders Pty Ltd and Santi Philip one copy of any written submissions and supporting documentation in relation to costs by 31 August 2018.

3. S J Builders Pty Ltd and Santi Philip file in the Tribunal two copies and give one copy to Eby Augustine and Irin Susan Augustine of any submissions and supporting documentation in response to the application for costs by 21 September 2018.

4. Eby Augustine and Irin Susan Augustine file in the Tribunal two copies and give to S J Builders Pty Ltd and Santi Philip one copy of any submissions in reply by 5 October 2018.

5. The application for costs be determined by the Tribunal on the papers without an oral hearing not before 5 October 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Augustine & Anor v S J Builders Pty Ltd & Anor [2018] QCAT 248
PARTIES:	EBY AUGUSTINE IRIN SUSAN AUGUSTINE (applicants)
v
S J BUILDERS PTY LTD SANTI PHILIP (respondents)
APPLICATION NO/S:	BDL232-16
MATTER TYPE:	Building matters
DELIVERED ON:	1 August 2018
HEARING DATE:	30 May 2018
HEARD AT:	Brisbane
DECISION OF:	Member Gardiner
ORDERS:	1. S J Builders Pty Ltd and Santi Philip pay Eby Augustine and Irin Susan Augustine the sum of $57,913.57 in full and final satisfaction of this matter by 9 August 2018. 2. Eby Augustine and Irin Susan Augustine file in the Tribunal two copies and give S J Builders Pty Ltd and Santi Philip one copy of any written submissions and supporting documentation in relation to costs by 31 August 2018. 3. S J Builders Pty Ltd and Santi Philip file in the Tribunal two copies and give one copy to Eby Augustine and Irin Susan Augustine of any submissions and supporting documentation in response to the application for costs by 21 September 2018. 4. Eby Augustine and Irin Susan Augustine file in the Tribunal two copies and give to S J Builders Pty Ltd and Santi Philip one copy of any submissions in reply by 5 October 2018. 5. The application for costs be determined by the Tribunal on the papers without an oral hearing not before 5 October 2018.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where claim made by homeowners on statutory insurance scheme – where further dispute about matters outside statutory scheme – where defects and incomplete work – where claims for liquidated damages and consequential loss of rent CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS – where quantum of various variations in dispute Queensland Building and Construction Commission Act 1991 (Qld) s 77 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Baltic Shipping Company v Dillon (1993) 176 CLR 344 Environmental Systems Pty Ltd v Peerless Holdings (2008) 19 VR 358 GEC Alsthom Australia Ltd v City of Sunshine Unreported, FCA, 20 February 1996 Hadley v Baxendale [1854] EWHC J70 Harrison and Anor v Meehan [2016] QCATA 197 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented