Chelbrooke Homes Pty Ltd v Russell & Anor

[2011] QCAT 278

CITATION: Chelbrooke Homes Pty Ltd v Russell and Anor [2011] QCAT 278

PARTIES:	Chelbrooke Homes Pty Ltd
v
Michael Russell and Charmaine Russell

APPLICATION NUMBER:   BD159-09

MATTER TYPE: Building matters

HEARING DATE: 21, 22, 23, 24 and 25 February 2011

HEARD AT: Brisbane

DECISION OF: R F King-Scott, Member

DELIVERED ON: 28 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:      The Respondents pay the Applicant the sum of $91,576.88 $97,332.69 by 4:00 pm on 10 June 2011.

CATCHWORDS:

BUILDING CONTRACT – Wrongful repudiation – Calculation of time under the contract – Defective work – Whether AS 1684 or AS 1720 appropriate to the roof design – Is a roof truss chord a rafter?

Sopov and Another v Kane Constructions Pty Ltd (2007) 20 VR 127

DTR Nominees Pty Ltd V Mona Homes Pty Ltd (1978) 138 CLR 423

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Codd of Counsel, instructed by O’Keefe Mahoney Bennett Solicitors
RESPONDENT:	Mr Hitchcock of Rudkin Hitchcock Lawyers

REASONS FOR DECISION – AMENDED

Introduction

1. This is a building dispute between the Applicant Builder, Chelbrooke Homes Pty Ltd, and the Respondent Owner, Michael and Charmaine Russell.

1. The Owner entered into a regulated contract under the Domestic Building Contracts Act 2000 (DBCA) with the Builder to construct a 794.2m² house at Lot 11 Samuel Drive for $790,470.

1. During the course of the contract, the Owner, represented by the male respondent, Michael Russell, expressed concern on a number of issues relating to the Builder's performance and progress with the contract.

1. The issues were pleaded under the former legislation, the Commercial and Consumer Tribunal Act 2003 (CCTA), and included a counterclaim by the Owner.  The proceeding is a pending proceeding within the definition of section 245 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT), and jurisdiction to hear the proceeding was vested in this Tribunal.

1. At the outset of the hearing I asked the parties’ legal advisers to identify the issues they required the Tribunal to determine.  Counsel for the Builder, Mr Codd, identified those issues as follows:–

(a)whether or not practical completion was achieved;

(b)whether or not the final claim became payable or, in the alternative, the determination of the amount payable as damages;

(c)whether or not termination was effected by the applicant or the respondent, and the proper basis upon which termination is found to have been effected;

(d)the calculation of time under the contract, and whether or not liquidated damages are applicable; and

(e)the extent, nature and approach to the evaluation of the alleged defects.

1. Mr Hitchcock, solicitor for the Owner, agreed that those were the issues for the Tribunal’s determination.

1. A claim for general damages by the Owner for distress, upset and humiliation was abandoned at the commencement of the hearing.

1. In accordance with directions given by the Tribunal’s predecessor under the CCTA, evidence in chief was directed to be in the form of sworn statements.  Expert witnesses were called by both sides.  The experts were:–

·Eric Fox, a registered professional engineer;

·Eldon Bottcher, a registered…