Campbell v Telford & Heida - [2013] QCAT 423

CITATION:

Campbell v Telford & Heida [2013] QCAT 423

PARTIES:	Mr Gregory Campbell (Applicant)
v
Mr Mark Telford & Ms Nynke Heida (Respondents)

APPLICATION NUMBER:

BDL342-12

MATTER TYPE:

Building matters

HEARING DATE:

6 May 2013

HEARD AT:

Brisbane

DECISION OF:

J Allen, Member

DELIVERED ON:

7 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Telford and Ms Heida must pay to Mr Campbell the amount of $21,419.10 within 14 days.

2. Mr Telford and Ms Heida must pay interest on the amount to be paid under Order 1 in accordance with clause 33 of the contract general conditions calculated to the date of this order.

3. Mr Telford and Ms Heida must pay to Mr Campbell the debt collection costs in respect of the amount awarded in Order 1 in accordance with clause 34 of the contract general conditions.

4. Mr Campbell must file in the Tribunal and give to Mr Telford and Ms Heida his calculation of the amounts that he is entitled to under Order 2 and 3 on or before 16 August 2013.

5. Mr Telford and Ms Heida must file in the Tribunal and give to Mr Campbell any submissions in reply by 23 August 2013.

6. Unless otherwise objected to by either party the amounts to be allowed under Orders 2 and 3 will be determined on the papers without an oral hearing.

7. Mr Telford and Ms Heida are granted leave to withdraw that part of their counter-application in regard to item 1 and items 3 to 21 of their list of alleged defects.

8. Mr Telford and Ms Heida’s counterclaim is otherwise dismissed.

CATCHWORDS:

DOMESTIC BUILDING DISPUTE - failure to pay final progress claim - claim for default interest and payment of costs of recovery under contract general conditions - claim for variations not in compliance with contract or act - counterclaim for loss of warranty and failure to supervise

Domestic Building Contracts Act 2000 Part 4 and Part 7

Bellgrove v Eldridge (1954) 90 CLR 613
Lida Build Pty ltd v Miller & Anor [2013] QCATA 139.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Campbell was represented by Mr Hatcher, partner of Woods Hatcher Solicitors.

RESPONDENT:

Mr Telford and Ms Heida appeared in person

REASONS FOR DECISION

Mr Telford and Ms Heida engaged Mr Campbell to build a residence for them at 51 Hidden Woods Drive, Advancetown in 2011. While not apparent from the contract[1] itself it is clear that Mr Telford, who is a licensed plumber, had arranged for certain parts of the building works to be performed by himself or others under his control.
[1] Annexure B to the response/counterclaim.
The building works proceeded to the point where it was agreed that Mr Campbell had performed all of the tasks that he was contracted to perform and this was on or about 25 June 2012. A certificate of practical completion dated 19 July 2012 was produced at the hearing[2]. Mr Campbell and Mr Telford agreed at the hearing…

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 Campbell v Telford & Heida

Details

AGLC: Campbell v Telford & Heida [2013] QCAT 423
Case: [2013] QCAT 423
Decision Date

CaseChat Overview and Summary

In the case of Campbell v Telford & Heida, Mr Gregory Campbell (Applicant) filed an application against Mr Mark Telford and Ms Nynke Heida (Respondents) seeking payment of outstanding amounts and related costs. The dispute arose out of a building contract for the construction of a residence at 51 Hidden Woods Drive, Advancetown. The primary legal issues revolved around the payment of a final progress claim, the validity of certain variations, and the Respondents' counterclaim for breach of contract and negligence.

Regarding the final progress claim, the Tribunal found that Mr Telford and Ms Heida were liable to pay Mr Campbell $21,419.10 as the outstanding amount from the final progress payment. The Tribunal also ruled that Mr Campbell was entitled to default interest and recovery costs under the contract general conditions. The claim for variations was dismissed as they were either not urgent, not reasonably foreseeable, or not properly documented in accordance with the contract and the Domestic Building Contracts Act 2000. The counterclaim by Mr Telford and Ms Heida was dismissed in respect of the management fee and sarking issues, as there was no evidence of a breach or defect. The Tribunal granted leave for Mr Telford and Ms Heida to withdraw their claim regarding other alleged defects.

The final orders of the Tribunal were that Mr Telford and Ms Heida must pay Mr Campbell the amount of $21,419.10 within 14 days, along with interest and recovery costs. Mr Campbell was directed to provide calculations of the amounts due for interest and recovery costs, and Mr Telford and Ms Heida were given an opportunity to make submissions in reply. The Tribunal also granted leave for Mr Telford and Ms Heida to withdraw part of their counterclaim.

Orders