Clark v Symphony Homes - [2013] QCAT 78

CITATION:

Clark v Symphony Homes and Anor [2013] QCAT 78

PARTIES:	Ms Katherine Clarke (aka Ms Marianne Morel) (Applicant)
v Symphony Homes Pty Ltd Joseph Conti (Respondents)

APPLICATION NUMBER:

BD084-08

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Desmond Lang, Member

DELIVERED ON:

19 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Ms Clarke is to pay Symphony Homes Pty Ltd the amount of $104,212.41.

2. Ms Clarke is to provide tiles of her choice to Symphony Homes for it to fix to the kitchen splash back within 21 days of the date of this decision.

3. Symphony Homes Pty Ltd is to make good the defects listed as being required to be rectified in the QBSA report dated 22 January 2009 other than the overflow relief gully being in the wrong position, obtaining an exemption to the BCC small lots code for the driveway and any associated works and installing control joints in the floor tiling within 90 days of the date of this decision.

4. All work is to be completed to the satisfaction of the QBSA prior to Ms Clarke paying any monies to Symphony Homes Pty Ltd.

5. Ms Clarke is to allow Symphony Homes Pty Ltd access to the dwelling to enable it to complete the works in these orders.

6. If Ms Clarke does not allow Symphony Homes access to the dwelling, then order 3 is vacated and the sum of $104,212.41 is immediately due and payable.

7. If after being allowed access to the dwelling Symphony Homes Pty Ltd fails to complete the works by Symphony Homes Pty Ltd to the QBSA’s satisfaction, order 1 is vacated and the applications are to be referred back to the tribunal for further orders.

8. Except to the extent stated above Ms Clarke’s claims against Symphony Homes Pty Ltd and Joseph Conti are dismissed.

CATCHWORDS:

BUILDING DISPUTE where Housing Industry Association contract – where dispute between the parties – whether termination valid – where variations – where defective work – where claims for extension of time

Domestic Building Contracts Act 2000 ss 6, 9, 18, 79, 80, 82, 83 84
Queensland Civil and Administrative Tribunal Act 2009, ss 28, 32, 100, 102

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION
Preliminary

Ms Katherine Clarke is also known as Ms Marianne Morel. Both names are used throughout the material. The Tribunal has previously accepted that she is known by both names in Clarke v Cascade Pools (Qld) Pty Ltd[1] and will continue to do so in these applications.
[1] [2010] QCAT 323
Ms Clarke entered into a standard Housing Industry Association contract with Symphony Homes Pty Ltd on 6 July 2007. Joseph Phillip Conti is a Symphony Homes director and the person with whom Ms Clarke dealt with during the pre-construction, construction and post-construction stages.…

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 Clark v Symphony Homes

Details

AGLC: Clark v Symphony Homes [2013] QCAT 78
Case: [2013] QCAT 78
Decision Date

CaseChat Overview and Summary

In the matter of a building dispute between Ms Katherine Clarke and Symphony Homes Pty Ltd, the Tribunal considered the claims of both parties. The dispute arose from the construction of a two-storey dwelling at 125 White Street, Wavell Heights, which was subject to a standard Housing Industry Association contract. The key issues before the Tribunal included the validity of the contract's termination, the quantum of damages and costs, and the rectification of defects.

The Tribunal found that Ms Clarke did not validly terminate the contract, as confirmed by a previous decision of the Commercial and Consumer Tribunal. Regarding the amount payable, the Tribunal determined that Ms Clarke must pay $104,212.41 to Symphony Homes, which included the final payment, variations, locksmith fees, interest, and legal costs. Ms Clarke was also ordered to provide tiles for the kitchen splash back and to allow Symphony Homes access to the dwelling to rectify defects, with certain exceptions noted in the QBSA report.

The Tribunal dismissed Ms Clarke's claims for compensation for additional rental, undue stress, loss of enjoyment of life, liquidated and other damages, loss of income, and various other costs, including solicitors' and barristers' fees. The Tribunal also dismissed Symphony Homes' counterclaim for payment of variations and other costs against Ms Clarke. The Tribunal's decision was based on the material provided by both parties, as the matter was decided on the papers without the opportunity to observe witnesses and test their credit.

Orders