Avilake Pty Ltd v Tucker

[2012] QCAT 41

CITATION: Avilake Pty Ltd v Tucker and Anor [2012] QCAT 41

PARTIES:	Avilake Pty Ltd ABN 341 105 202 71
v
William Edward Tucker Julie Jean Tucker

APPLICATION NUMBER:   BD486-09

MATTER TYPE: Building matters

HEARING DATE: 12 & 13 September 2011

HEARD AT: Brisbane

DECISION OF: Ann Fitzpatrick, Member

DELIVERED ON: 6 January 2012

DELIVERED AT: Brisbane

ORDERS MADE:    

[1]     The applicant’s application is dismissed.

[2]     The respondents’ counter-application is dismissed.

[3]     The applicant file and serve any further submissions in relation to costs by 13 January 2012.

[4]     The respondents’ file and serve any further submissions in relation to costs by 27 January 2012.

[5]     The applicant file and serve any reply by 7 February 2012.

CATCHWORDS: 

Practical completion stage payment – claim for debt not damages – suspension of works – validity of notice of intention to terminate and termination of contract – wrongful repudiation – time for performance of defective and incomplete work

Domestic Building Contracts Act 2000, s 67

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Avilake Pty Ltd represented by Mr Kym Flehr of Kym Flehr Legal Solutions
RESPONDENT:	William Edward Tucker and Julie Jean Tucker represented by Ms Gemma Robson of McCarthy Durie Lawyers

REASONS FOR DECISION

1. The applicant, Avilake Pty Ltd filed an application in relation to a domestic building dispute in the former Commercial and Consumer Tribunal on 19 November, 2009.  The functions of that Tribunal with respect to domestic building disputes are now performed by the Queensland Civil and Administrative Tribunal.

1. By its application, Avilake seeks an order for payment by the respondents, Mr and Mrs Tucker, of the following sums:

(a)$25,500.00 being the amount alleged to be outstanding under a residential building contract between the parties;

(b)$3,502.57 being the amount alleged to be owed pursuant to a preliminary agreement between the parties.

1. The applicant also seeks interest and costs.

1. The Tuckers deny that they owe any sum to Avilake and have lodged a counter-application, seeking orders for payment by Avilake of certain sums for rectification of alleged defects, completion of building works, the cost of a building inspection report and legal costs.  In their final submissions, the Tuckers also sought an order that Avilake release all building certificates it holds.

Background Facts

1. The following facts are set out in the various statements filed and tendered in these proceedings.  I accept the evidence in relation to these matters, except where I note that the asserted facts are disputed.  In which case a separate finding will be made, if necessary.

1. Avilake is a licensed builder.  Its Director, Tim Jackson was the builder’s representative.

1. The Tuckers proposed that a house be constructed on their land at 15 Alkira Street, Macleay Island.

1. On 15 June, 2008, Avilake and the Tuckers entered into a written Queensland Master Builders Association form of preliminary agreement.  Under that agreement the builder agreed to:

·have the site surveyed;

·obtain the foundations data, e.g. soil test/ contour plan;

·have drawings and specifications prepared;

·alter and amend such drawings and specifications…