Auret v Queensland Building Services Authority - [2013] QCAT 623

CITATION:

Auret v Queensland Building Services Authority & Anor [2013] QCAT 623

PARTIES:	Mr Frederick William Auret (Applicant)
v
Queensland Building Services Authority (1^st Respondent) Deck Design and Build Constructions Pty Ltd (2^nd Respondent)

APPLICATION NUMBER:

GAR345-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

10 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

14 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Authority made on 24 September 2012 to decline the claim by Mr Frederick William Auret and Ms Rhyl Armstrong for non-completion of premises at 29 Fry Street, Holland Park, in full, is confirmed.

2. Either party is allowed 7 days from the date of receipt of these reasons to make submissions as to costs if they wish. If so, they are to advise the other party who shall have 7 days to respond, and give a copy to the other party and to the Tribunal and the question of costs will be decided on the papers thereafter. No application for costs may be made after these time periods.

CATCHWORDS:

Estoppel – Deed of Settlement – meaning of settlement deed – interpretation of settlement deed - homeowner failing to disclose claim to QBSA for non-completed work – negotiating in good faith – proper termination of contract – equitable remedy – Compulsory Conference

Queensland Building Services Authority Act 1991 s 83

Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
Azad v Ljubas [2007] QDC 018
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Sedl v Queensland Building Services Authority [2011] QCAT 2
Vandenhoven v Queensland Building Services Authority [2011] QCAT 673
Grace v Peter Harrison Designs & Signs Pty Ltd [1998] QSC 27

J & MD Milligan Pty Ltd v Queensland Building Services Authority [2012] QSC 213
Walton Stores (Interstate) Ltd v Maher (1998) 164 CLR 387

Sourdin,T Alternative Dispute Resolution, Lawbook Co, Sydney, 4^th ed 2012
Seddon & Ellinghuas, Cheshire and Fifoot’s Law of Contract, 9^th Australian Edition, 2008
Joshua Thomson, Estoppel by Representation in Administrative Law, [1998] Federal Law Review, Volume 26, p 83
I.C.F. Spry, Equitable Remedies, The Law Book Company, Australia, 1971

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Russell Ensbey (Hemming and Hart)

1^st RESPONDENT:

2^nd RESPONDENT:

Ms Emily Roberts (QBSA In-House Lawyer)

Mr Phillip Richards (Director)

REASONS FOR DECISION

Mr Auret and his partner Ms Rhyl Armstrong were the owners of a house at 29 Fry Street, Holland Park (the homeowner). They entered into a contract on 9 March 2011 with Mr Richards of Deck Design and Constructions Pty Ltd (the builder) to extend the house.
The contract price was $269,653.92. This included payment of the appropriate insurance premium under the statutory scheme.
The builder filed an Application for domestic building disputes in the tribunal on 1 November 2011…

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: [2013] QCAT 623
Decision Date

CaseChat Overview and Summary

In this matter, Mr Auret sought review of the decision of the Queensland Building Services Authority (QBSA) to decline his claim for non-completion of works under the statutory insurance scheme. The decision of the QBSA was based on the effect of a Deed of Settlement that had been entered into by Mr Auret and the builder, Deck Design and Build Constructions Pty Ltd. The Tribunal was required to decide the effect of the Deed of Settlement, whether there was a proper termination of the contract, and whether the Authority was estopped from denying cover under the insurance scheme.

The Tribunal found that the Deed of Settlement was clear in its meaning and was intended to bring an end to all matters between the homeowner and builder. The Deed was to be given its plain meaning, and the parties were bound by it unless there was evidence of vitiating circumstances. The Tribunal found that the Deed was effective to release the builder and the Authority from liability for non-completed works. The Tribunal also found that the Deed did not establish proper termination of the contract as required by the insurance policy. The Tribunal further found that the Authority was not estopped from refusing payment under the policy, as the homeowner had not come with clean hands in equity and had not acted in good faith in entering into the Deed of Settlement without full disclosure of the existing QBSA claim.

The Tribunal confirmed the decision of the Authority to decline the claim by Mr Auret and Ms Armstrong for non-completion of premises at 29 Fry Street, Holland Park. The Tribunal allowed either party to make submissions as to costs if they wished, within 7 days of receipt of these reasons. If no application was made within 7 days, the matter would be concluded.

Orders