Bullfrog Constructions Pty Ltd v Crowther - [2014] QCAT 189

CITATION:

Bullfrog Constructions Pty Ltd v Crowther [2014] QCAT 189

PARTIES:	Bullfrog Constructions Pty Ltd (Applicant)
v
Ronald Crowther Gwendoline Crowther (Respondents)

APPLICATION NUMBER:

BDL008-13

MATTER TYPE:

Building matters

HEARING DATE:

18, 19 September 2014

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

15 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal Orders:

(a) The respondents are to pay the applicant the sum of $96,214.02, together with interest in the amount of $26,294.10 within 28 days of the date of these orders;

(b) The applicant is to arrange rectification of the defective building works specified in paragraphs [65] and [66] of the Tribunal’s reasons (‘the rectification works’), within four (4) months of the date of these orders, or such longer period, as may be agreed;

(c) The rectification works are to be at the expense of the applicant, and are to be performed by sub-contractors arranged by the applicant;

(d) Mr Nathan Parker is not permitted to attend the site at 259-265 Ney Road at Capalaba during the rectification works;

(e) All necessary communication between the applicant and the respondent regarding the rectification works is to be in writing, and is to be exchanged by e-mail between the applicant and the respondent’s solicitor, or other nominee;

(f) Any dispute regarding the standard of any rectification works is to be determined by a building inspector appointed by the Queensland Building and Construction Commission, whose view on the issue in contention is to be determinative. The costs of any such inspection are to be born equally by the applicant and the respondent.

(g) The applicant is to provide the respondents with any outstanding construction certificates or other contract documentation within 28 days of the date of these orders.

(h) The parties are given leave to make written submissions within 14 days on the question of the appropriate orders regarding the costs of these proceedings, and that matter will be determined by the Tribunal on the papers.

CATCHWORDS:

Residential building dispute – Where applicant builder seeks payment of outstanding sums pursuant to written contract, plus undocumented variations – Where respondent owners allege the written contract to be a sham, and the agreement to be an unlawful antecedent oral “cost plus” agreement – Effect of Parol evidence rule – evidence necessary to overcome presumptive effect of the written agreement – Inferences to be drawn from consequential conduct several months after date of alleged agreement – Whether family relationship between building owners and wife of builder sufficient to constitute an “exceptional circumstance” within s 84(4)(a)(i) of the Domestic Building Contracts Act 2000 – Factors giving rise to appropriate circumstances for the making of rectification orders pursuant to s 77(2)(g) of the Queensland Building and Construction Commission Act 1991.

Domestic Building Contracts Act 2000 (Qld) s 84
Queensland Building and Construction Commission Act 1991 (Qld) s 77(2)

Queensland Building Services Authority v McGrath Corporation Pty Ltd (unreported, QBT, 13 April 1994)
KD Properties Pty Ltd v Leda Design & Construction (Qld) Pty Ltd

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 Bullfrog Constructions Pty Ltd v Crowther

Details

AGLC: Bullfrog Constructions Pty Ltd v Crowther [2014] QCAT 189
Case: [2014] QCAT 189
Decision Date

CaseChat Overview and Summary

Bullfrog Constructions Pty Ltd sought an order from QCAT that Ronald and Gwendoline Crowther pay it an outstanding sum of money for building works undertaken by Bullfrog Constructions at 259-265 Ney Road at Capalaba. The Crowthers counterclaimed that Bullfrog Constructions was liable to pay them for defective building works, and for the costs of rectifying those works. The Tribunal found that the parties were bound by the terms of the written contract they signed, rather than by an antecedent oral agreement as the Crowthers contended. The Tribunal found that Bullfrog Constructions was entitled to payment for variations not documented in accordance with the Domestic Building Contracts Act 2000 (Qld), because the family relationship between the parties constituted an exceptional circumstance within the meaning of that Act. The Tribunal also found that the Crowthers were liable to pay Bullfrog Constructions for defective building works, and ordered Bullfrog Constructions to rectify those works, at its own expense, within four months of the date of the Tribunal’s decision.

Orders