Baque v River Gum Homes Pty Ltd - [2013] QCATA 24

CITATION:

Baque v River Gum Homes Pty Ltd [2013] QCATA 24

PARTIES:	Kenneth Charles Baque (Appellant)
v
River Gum Homes Pty Ltd (Respondent)

APPLICATION NUMBER:

APL484-11

MATTER TYPE:

Appeals

HEARING DATE:

20 August 2012

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member
Kate Buxton, Member

DELIVERED ON:

6 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is granted.

2. The appeal is allowed in part.

3. Order 2 of the orders made on 29 November 2011 in BD191-09 is set aside.

4. The parties may file in the appeal and serve on the other party any submissions on costs and interest in BD191-09 and the appeal by 28 February 2013.

5. The application for costs and interest will be determined on the papers without the need for an oral hearing after 28 February 2013.

CATCHWORDS:

DOMESTIC BUILDING CONTRACT – land transferred to spouse – whether new contract enforceable because not signed by respondent until enforcement – Quantum Meruit claim and Tribunal’s jurisdiction to order – vesting of liability

Domestic Building Contracts Act 2000, ss 7, 26, 30, 92
Land Title Act 1994, s 62
Queensland Building Services Authority Act 1991, s 77

Ballina Building Services Pty Ltd v Doyle [2010] QCAT 643
Mirvac Qld v Beioly [2010] QSC 113
Marchesi v Vividian Noosa Pty Ltd [2010] QSC 324
Queensland Premier Mines Pty Ltd v French (2010) 235 CLR 81

APPEARANCES and REPRESENTATION (if any):

APPELLANT:

Mr Wagner of Counsel appeared for the Appellant

RESPONDENT:

Ms Farhadi-Fard, Solicitor, appeared for the Respondent

REASONS FOR DECISION

On 17 October 2008 River Gum Homes entered into a written contract with Mr Baque’s then spouse, Avril Baque to deliver and install a Midas Urban transportable home on land which was then owned by Mrs Baque at 38 Heise Road, Hattonvale. Upon that land there is a new transportable home which was supplied and installed by the respondent, River Gum Homes. The home was never paid for and after the hearing Mr Baque was ordered by this Tribunal to pay River Gum Homes for the home. He has appealed that decision. The contract originally was signed by River Gum and Mrs Baque for the sum of $162,000.00.
After the contract was signed, River Gum Homes was informed by Mr Baque that ownership of the land at Heise Road had been transferred to him and therefore the contract should be changed to name him as the ‘owner’. Instead of changing the existing contract, River Gum Homes prepared a new contract with the same details but naming Mr Baque as the owner and the contracting party. Mr Baque signed the new contract on 20 November 2008. River Gum Homes did not sign the contract until 16 February 2011. Mrs Baque became bankrupt on or about 19 June 2009 and has not participated in these proceedings as a result.
The contract works for the supply and installation of the home commenced on 19 November 2008 and was at the…

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.

Keep reading for free

Create a free CaseChat account to read Baque v River Gum Homes Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QCATA 24
Decision Date

CaseChat Overview and Summary

Kenneth Charles Baque (the Appellant) has appealed against a decision made by the Queensland Civil and Administrative Tribunal (QCAT) that he should pay River Gum Homes Pty Ltd (the Respondent) for the supply and installation of a transportable home. The contract for the work was originally entered into between the Respondent and Mrs Avril Baque, who was the owner of the land on which the home was to be installed. After the contract was signed, Mr Baque informed the Respondent that the land had been transferred to him and he was to be the owner. The Respondent drafted a new contract with the same details but naming Mr Baque as the owner and contracting party. Mr Baque signed the new contract but the Respondent did not sign it until February 2011, well after the work had been completed. Mrs Baque became bankrupt and has not participated in these proceedings.

The primary issue for determination was whether Mr Baque was liable for the cost of the home. This question was based on whether the second contract signed by Mr Baque was enforceable because it had not been signed by the Respondent until after the work had been completed. The Appellant also argued that the Tribunal did not have jurisdiction to order payment of a quantum meruit and that he was denied procedural fairness on the question of costs.

The Tribunal allowed the appeal in part. They found that the second contract signed by Mr Baque was enforceable because the signature of the Respondent was not required until one party sought to enforce the contract. The Tribunal also found that it had jurisdiction to order payment of a quantum meruit and that the Appellant had been denied procedural fairness in the making of the order for costs. The appeal was allowed in part, the costs order was vacated and the parties were invited to make written submissions on the issue of costs and interest.

Leave to appeal is granted. The appeal is allowed in part. Order 2 of the orders made on 29 November 2011 in BD191-09 is set aside. The parties may file in the appeal and serve on the other party any submissions on costs and interest in BD191-09 and the appeal by 28 February 2013. The application for costs and interest will be determined on the papers without the need for an oral hearing after 28 February 2013.

Orders