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CJM Innotrack Pty Ltd v Liang & Wang

CJM Innotrack Pty Ltd v Liang & Wang

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Case Copied 15 February 2022 51 min read

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

CJM Innotrack Pty Ltd v Liang & Wang [2022] QCAT 53

PARTIES: CJM INNOTRACT PTY LTD

(applicant)

v

YONG CONG LIANG

(respondent)

XIAOFEI WANG

(respondent)

APPLICATION NO/S:

BDL304-17

MATTER TYPE:

Building matters

DELIVERED ON:

15 February 2022

HEARING DATE:
10 March 2020
11 March 2020
19 October 2020
20 October 2020
21 October 2020
17 December 2020
18 December 2020

(closing submissions filed 16 June 2021, 1 October 2021, 12 November 2021 and 13 December 2021).

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:
1.   Xiaofei Wang is removed as second respondent from the proceedings.

2.   Yong Cong Liang must pay to CJM Innotrack Pty Ltd the sum of $243,703.13 (inclusive of GST) within sixty (60) days from the date of this order.

THE TRIBUNAL DIRECTS THAT:

3.   Any application for costs together with written submissions in support must be filed in the Tribunal and a copy given to the other party, by:

4:00pm on 18 March 2022.

4.   Any written submissions in response must be filed in the Tribunal and a copy given to the other party by:

4:00pm on 8 April 2022.

5.   Unless otherwise ordered and in the absence of a request for an oral hearing, any application for costs will be heard and determined by the Tribunal on the papers by written submissions filed by the parties and without an oral hearing on a date not before:

4:00pm on 14 April 2022.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – where owners engaged builder to develop site – where builder unlicensed during discussions to develop site – whether there is one agreement partly oral and written – whether the builder performed unlicensed building work – whether builder compliant with the Queensland Building and Construction Commission Act 1991 (Qld) – whether builder reached practical completion – whether builder lawfully suspended the works – whether builder entitled to recover on quantum meruit – whether builder entitled to claim for variations not put in writing – whether owner entitled to recover rectification costs, other costs and liquidated damages – whether builder entitled to claim interests on remuneration

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPOER OR NECESSARY PARTY AND STANDING – where respondents are joint owners of property – where land developed by applicant builder – whether applicant builder contracted with respondent owners – whether respondents are in partnership – whether respondents are jointly and severally liable – whether second respondent should be removed as a party

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 43, s 77(1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42
Sustainable Planning Act 2009 (Qld), s 580(1)

Planning Act 2016 (Qld), s 164

AJ Lucas Operations Pty Ltd v Gladstone Area Water Board and Anor [2015] QCA 287

Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd Ors (1986) 40 NSWLR 622

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.

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Details

Case: [2022] QCAT 53
Decision Date

CaseChat Overview and Summary

In this case, CJM Innotrack Pty Ltd (applicant) brought proceedings against Yong Cong Liang and Xiaofei Wang (respondents) in relation to the development of a property. The applicant sought payment for the cost of works associated with the development of the site, the balance of the contract price for the construction of a duplex on the site and additional money claimed to be owing for variations to the scope of works, plus interest. The respondents counter-claimed for damages for breach of contract. The main legal issues included whether there were one or two agreements for work to be performed by the applicant, whether the applicant was unlicensed to perform building work and whether the applicant was entitled to recover on quantum meruit for the unlicensed work. The Tribunal found that there were two separate agreements, an oral agreement formed in March 2015 and a written agreement in December 2015. The applicant was unlicensed to perform building work when it assisted the respondents with the preliminary works pursuant to the oral agreement. The applicant performed unlicensed building work for the purposes of the Act when it paid invoices and coordinated the preliminary works pursuant to the oral agreement. The applicant was entitled to a claim in quantum meruit for the unlicensed work carried out under the oral agreement that was limited by s 42(4) and a common law quantum meruit claim for licensed work carried out pursuant to the written contract. The applicant was not required to repay the sum of $409,977.10 paid by the respondents pursuant to the written contract. The applicant was entitled to recover the amount of $36,011.02 (inc GST) for the preliminary works on a quantum meruit basis under the oral agreement. The works did not reach practical completion for the purposes of the written contract as contended by the applicant. Further, the applicant did not accrue the right to payment for that stage. The applicant did not lawfully suspend the works due to the respondents’ failure to pay progress payments. There is no variation to omit that part of the work not carried out or completed by the applicant. The applicant is entitled to reasonable restitution for the works completed calculated on a quantum meruit basis. The value of the completed licensed works performed is assessed at $638,033.92 (inc GST). The amount of $409,977.10 being the payments made by the respondents after the applicant obtained its licence should be deducted from applicant’s claim for remuneration for the work. The applicant is entitled to payment for the variations on a quantum meruit basis assessed at $21,196.56. The balance of the unpaid progress claims is off-set from the money payable by the respondents. The applicant is not entitled to interest on the money found to be payable by the respondents on a quantum meruit basis. The respondents are not entitled to be reimbursed for the various fees they say the applicant remains liable to pay in the amount of $28,000.00 for the infrastructure charge. The respondents are entitled to the amount of $1,540.00 for surveyors fees. The respondents are entitled to the rectification costs or costs to complete the work assessed in the amount of $21,771.27. The respondents are entitled to liquidated damages in the amount of $18,250.00. The applicant is in breach of the contract for failing to reach practical completion, unlawfully suspending the work and failing to rectify defective work. The applicant is not entitled to recover the final payment owing under the contract. The respondents are entitled to a remedy for the applicant’s breach. The final order is that Mr Liang pay the total amount of $243,703.13 (inclusive of GST) to the applicant within sixty (60) days from the date hereof in full and final satisfaction of all work performed by the applicant.

Orders