Castle Constructions (Qld) Pty Ltd v Pourasad - [2015] QCAT 17

CITATION: Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 17

PARTIES: Castle Constructions (Qld) Pty Ltd
(Applicant)

v

Kaveh Pourasad
(Respondent)

APPLICATION NUMBER: BDL199-13

MATTER TYPE: Building matters

HEARING DATE: 21 – 22 August 2014, 25 September 2014 and 2 October 2014

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Howard

DELIVERED ON: 21 January 2015

DELIVERED AT: Brisbane

ORDERS MADE:
1.    Kaveh Pourasad must pay to Castle Constructions Pty Ltd the sum of $7499.33 by 4:00pm on 19 February 2015 in exchange for the certificates set out in order 2.

2.    Castle Constructions Pty Ltd must give to Kaveh Pourasad the form 21 final certificate and all associated certificates for the house at 57 Messara Circuit, Durack by 4:00pm on 19 February 2015 in exchange for the payment of the amount in order 1.

3.    Either party may file submissions in support of any claim for legal costs including a detailed breakdown of the costs claimed by 4:00pm on 19 February 2015.

4.    If either party files submissions in accordance with order 3 above, the other party must file its submissions in response by 4:00pm on 12 March 2015.

5.    Any claim/s for costs will be determined on the papers without an oral hearing not before 12 March 2015.

6.    If no submissions are received from a party concerning their claim for costs in accordance with order 3 above, then the application for costs will be dismissed.

CATCHWORDS:
DOMESTIC BUILDING DISPUTE – where builder claim final payment and for costs of variations, as well as interest and costs under the contract – where homeowner counter-claims for damages for rectification and incomplete works – whether homeowner took possession before practical completion – whether contract terminated by builder or homeowner – whether termination under contract or at common law – whether substantial compliance with practical completion – whether variations instructed – whether variations should be approved by Tribunal under Domestic Building Contracts Act 1999 – whether defective or incomplete building works

Domestic Building Contracts Act 1999 (Qld), s 44

Bellgrove v Eldridge (1954) 90 CLR 613
Bettini v Gye (1876) 1 QBD 183
Bolton v Mahadeva [1972] 1 WLR 1009
Cooper v Ungar (1958) 100 CLR 510
D Galambos & Son Pty Ltd v McIntyre (1974) ACTR 10
Hoenig v Isaacs [1952] All ER 176
Holland v Wiltshire (1954) 90 CLR 409
Kelly v Desnoe [1985] 2 Qd R 477
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Nina’s Bar & Bistro v MBE Corporation [1984] 3 NSWLR 613
Quinn Villages Pty Ltd v Mulherin [2006] QCA 433
Shevill v Builders Licensing Board (1982) 149 CLR 620

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Kava Piran, director, Castle Constructions (Qld) Pty Ltd represented Castle Constructions (Qld) Pty Ltd.

RESPONDENT: Mr Kaveh Pourasad represented himself.
REASONS FOR DECISION
[1]This proceeding concerns a domestic building dispute. Essentially, Castle Constructions Pty Ltd (the builder) claims its final payment under a domestic building contract, the costs of variations together with costs of debt…

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 Castle Constructions (Qld) Pty Ltd v Pourasad

Details

AGLC: Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 17
Case: [2015] QCAT 17
Decision Date: 21 January 2015

CaseChat Overview and Summary

The case of Castle Constructions (Qld) Pty Ltd v Pourasad involved a dispute between a builder and a homeowner regarding the completion of a house. The builder claimed the final payment for the construction of the house, as well as costs of variations, interest and costs under the contract. The homeowner counter-claimed for damages for rectification and incomplete works. The dispute came before the Queensland Civil and Administrative Tribunal.

The legal issues that the court had to decide were whether the homeowner had taken possession of the property before practical completion, whether the contract was terminated by the builder or the homeowner, whether the termination was under the contract or at common law, whether there was substantial compliance with practical completion, whether variations were instructed, and whether the variations should be approved by the Tribunal under the Domestic Building Contracts Act 1999. The court also had to determine whether the building works were defective or incomplete.

The court held that the homeowner had taken possession of the property before practical completion. The court found that the contract was terminated by the homeowner, and not by the builder. The court held that the termination was under the contract, and not at common law. The court found that there was substantial compliance with practical completion, and that the variations were instructed. The court held that the variations should be approved by the Tribunal under the Domestic Building Contracts Act 1999. The court found that the building works were incomplete, and that the homeowner was entitled to damages for the rectification and incomplete works.

The court ordered that the homeowner must pay the builder the sum of $7499.33 by 4:00pm on 19 February 2015 in exchange for the certificates set out in order 2. The builder must give to the homeowner the form 21 final certificate and all associated certificates for the house at 57 Messara Circuit, Durack by 4:00pm on 19 February 2015 in exchange for the payment of the amount in order 1. Either party may file submissions in support of any claim for legal costs including a detailed breakdown of the costs claimed by 4:00pm on 19 February 2015. If either party files submissions in accordance with order 3 above, the other party must file its submissions in response by 4:00pm on 12 March 2015. Any claim/s for costs will be determined on the papers without an oral hearing not before 12 March 2015. If no submissions are received from a party concerning their claim for costs in accordance with order 3 above, then the application for costs will be dismissed.

Orders

Orders of the court

1. Kaveh Pourasad must pay to Castle Constructions Pty Ltd the sum of $7499.33 by 4:00pm on 19 February 2015 in exchange for the certificates set out in order 2.

2. Castle Constructions Pty Ltd must give to Kaveh Pourasad the form 21 final certificate and all associated certificates for the house at 57 Messara Circuit, Durack by 4:00pm on 19 February 2015 in exchange for the payment of the amount in order 1.

3. Either party may file submissions in support of any claim for legal costs including a detailed breakdown of the costs claimed by 4:00pm on 19 February 2015.

4. If either party files submissions in accordance with order 3 above, the other party must file its submissions in response by 4:00pm on 12 March 2015.

5. Any claim/s for costs will be determined on the papers without an oral hearing not before 12 March 2015.

6. If no submissions are received from a party concerning their claim for costs in accordance with order 3 above, then the application for costs will be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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PARTIES:	Castle Constructions (Qld) Pty Ltd (Applicant)
v
Kaveh Pourasad (Respondent)