Chris Neale Constructions Pty Ltd v Mannix - [2011] QCAT 68

CITATION:		Chris Neale Constructions Pty Ltd v Mannix [2011] QCAT 68
PARTIES:	Chris Neale Constructions Pty Ltd
v
Stephen Thomas Mannix and Rebecca Ann Mannix

APPLICATION NUMBER:

BD304-09

MATTER TYPE:

Building matters

HEARING DATE:

27 and 28 October 2010

HEARD AT:

Mackay

DECISION OF:

Mr James Allen, Member

DELIVERED ON:

7 March 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The Applicant pays to the Respondents the amount of $24,017.14 within 14 days.

CATCHWORDS :

Domestic building contract – Termination for alleged repudiation of contract by builder – Variations to contract – Defects

Domestic Building Contracts Act 2000

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Christopher Neale appeared for Chris Neale Constructions Pty Ltd
RESPONDENT:	Mr Stephen Mannix and Mrs Rebecca Mannix

REASONS FOR DECISION

INTRODUCTION

Chris Neale Constructions Pty Ltd (the Builder) agreed to build a house at 13 Kew Court, Glenella for Mr and Mrs Mannix. As sometimes happens in these matters the relationship between the Builder and the homeowners broke down and the Builder did not receive its final payment and Mr and Mrs Mannix have a set of defects which have either been rectified by them or still require rectification and for which they are seeking compensation from the Builder.
The contract was in the form of the HIA plain language contract and was executed on 30 May 2008. The purchase price was $340,753 plus GST of $34,075 a total of $374,828. The works were required to reach practical completion within 220 days. Progress payments were to be made as follows:
i)     Deposit   5%     $ 18,741.00
ii)    Base  15%    $ 56,224.00
iii)   Frame  20%    $ 74,965.00
iv)   Enclosed  35%    $131,189.00
v)    Fixing  15%    $ 56,224.00
vi)   Practical Completion                $ 37,485.00

The price included excess site costs in the amount of $48,037.00 as per the engineers design. Allowances were included for an exposed aggregate driveway and path of $10,000, air-conditioning of $9,000 and floor coverings (laying of supplied tiles and carpeting) of $9,000 with 20% margin and then 10% GST to be added to each of these. There was also an allowance of $660 for gable mouldings. There was one written variation to the contract for crimsafe doors to the family room and front entry in the amount of $313.20 dated 23 September 2008. The Builder in its application claimed that it had received an amount of $336,961.00 in respect of the contract and had issued a tax invoice no 158 for the practical completion claim in the amount of $37,867.00 on 8 May 2009. This was following a final inspection certificate being issued on 24 April 2009. That prior to the issuing of the final progress claim Mr and Mrs Mannix had taken possession of the property following the advice of their solicitor after terminating the contract due to alleged repudiatory conduct by the Builder. This had occurred between 5 May 2009 and 7 May 2009. The Builder refuted repudiation and termination of the contract.

Mr and Mrs Mannix alleged that having regard to the contract 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.

Continue reading Chris Neale Constructions Pty Ltd v Mannix

Details

AGLC: Chris Neale Constructions Pty Ltd v Mannix [2011] QCAT 68
Case: [2011] QCAT 68
Decision Date: 7 March 2011

CaseChat Overview and Summary

The case of Chris Neale Constructions Pty Ltd v Mannix involves a dispute between the applicant, a building contractor, and the respondents, homeowners, over a domestic building contract. The applicants sought to terminate the contract alleging repudiation by the respondents, which the respondents denied. The applicants also sought to claim additional payments for variations and additional work carried out during the construction process. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues before the tribunal were whether the respondents had repudiated the contract, whether the applicants were entitled to additional payments for variations and additional work, and whether the applicants were entitled to terminate the contract. The tribunal had to consider the terms of the contract, the conduct of the parties, and the evidence presented by both sides.

The tribunal found that the respondents had not repudiated the contract, and the applicants were not entitled to additional payments for variations and additional work. The tribunal also found that the applicants were not entitled to terminate the contract as the respondents had not breached any of the terms of the contract. The tribunal ordered the applicants to pay the respondents the sum of $24,017.14 within 14 days. The tribunal also noted that the applicants had failed to provide adequate evidence to support their claims, and the respondents had provided credible evidence to support their position. The tribunal's decision was based on a thorough analysis of the evidence and the applicable law.

Orders

Orders of the court

The Applicant pays to the Respondents the amount of $24,017.14 within 14 days.

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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