Combined Building Services Pty Ltd v Springall - [2011] QCAT 674

CITATION:

Combined Building Services Pty Ltd v Springall and Anor [2011] QCAT 674

PARTIES:

Combined Building Services Pty Ltd
(Applicant)

Mr Kenneth Alexander Springall
Ms Janet Gwen Cornell

(Respondents)

APPLICATION NUMBER:

BDL316-10

MATTER TYPE:

Building matters

HEARING DATE:

9-10 June 2011 and 17-18 October 2011

HEARD AT:

Townsville

DECISION OF:

Ms Joanne Browne, Member

DELIVERED ON:

23 December 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondents, Mr Kenneth Alexander Springall and Ms Janet Gwen Cornell pay the amount of $15,891.67 to the Applicant, Combined Building Services Pty Ltd by 4.00pm on 20 January 2012.

CATCHWORDS:

Whether works had reached practical completion – breach of contract – calculation of money owing under the contract

Queensland Building Services Authority Act 1991, s 77

Bellgrove v Eldridge (1954) 90 CLR 613 cited
Wheeler & Anor v Ecroplot Pty Ltd [2010] NSWCA 61 cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Kerry Anger representing Combined Building Services Pty Ltd
RESPONDENT:	Ms Janet Cornell representing the respondents

REASONS FOR DECISION

Introduction

Mr Springall and Ms Cornell (the respondents) engaged Combined Building Services Pty Ltd to build a pergola and complete some renovation work to their house at 11 Michelle Court, Alice River, Queensland.
Mr Anger is a Director of Combined Building Services Pty Ltd and has been a builder for some 22 years. Mr Anger was responsible for the contracted building work at the respondents’ house.

A Master Builders Residential Building Contract was signed by the parties on 25 June 2009 and Combined Building Services Pty Ltd were contracted to undertake the following works which commenced on or about 18 August 2009[1]:
Close in garage and make 2 rooms
Close in patio
[1] Exhibit 1, attachment “ZF”.
Add new room with bathroom and kitchenette

During completion of the works a dispute arose between the parties. The applicant claims that the final progress claim was not paid by the respondents, practical completion having been reached on 22 March 2010. The respondents argue that practical completion (as required under clause 17.1 of the contract) has not been reached and that the applicant is in breach of the contract.

The total contract amount for completion of the works was $147,197.00. The respondents have made various payments to Mr Anger which total the amount of $120,701.54.

Mr Anger filed an application in QCAT on 1 October 2010 seeking an order for payment of the final progress claim. The amount now claimed by the applicant as the final progress claim (which is not disputed) is $23,534.52.

The respondents filed a response and counter-application on 26 October 2010 and seek an order for relief of payment of the final progress claim and that the applicant pay the amount of $32,519.48 as follows:

1) Liquidated damages (from 16/02/10 to 18/10/11)                  $30,450.00
2) Damages for breach of contract-  $25,604.00
-pergola reconstruction                  $17,854.00
           -replacement of the fascia              $6,000.00
-cleaning  $1,750.00

The hearing

The hearing was listed for 2 days commencing on 9 June 2011. On the second day of the hearing…

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 Combined Building Services Pty Ltd v Springall

Details

AGLC: Combined Building Services Pty Ltd v Springall [2011] QCAT 674
Case: [2011] QCAT 674
Decision Date: 23 December 2011

CaseChat Overview and Summary

The case before the court involved a dispute between Combined Building Services Pty Ltd and Mr Kenneth Alexander Springall and Ms Janet Gwen Cornell regarding whether certain works had reached practical completion and the calculation of money owing under the contract. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The Applicant, Combined Building Services Pty Ltd, sought payment for works performed under a contract for the renovation of a residential property. The Respondents, Mr Kenneth Alexander Springall and Ms Janet Gwen Cornell, disputed the amount claimed by the Applicant, arguing that the works had not reached practical completion and that they were not liable for the full amount claimed.

The legal issues that the court was required to decide included whether the works had reached practical completion and, if so, the calculation of the amount owing under the contract. The court needed to determine if the Respondents were liable for the full amount claimed by the Applicant, and if not, what amount, if any, was owing. The court also needed to consider the evidence presented by both parties regarding the state of the works and the terms of the contract.

The court found that the works had reached practical completion, and therefore, the Respondents were liable for the full amount claimed by the Applicant. The court determined that the Respondents had not provided sufficient evidence to support their claim that the works had not been completed. The court also found that the Respondents had breached the contract by not making payment for the works performed. The court ordered that the Respondents pay the Applicant the amount of $15,891.67 by 4.00pm on 20 January 2012. The court's decision was based on the evidence presented and the terms of the contract between the parties.

Orders

Orders of the court

1. The Respondents, Mr Kenneth Alexander Springall and Ms Janet Gwen Cornell pay the amount of $15,891.67 to the Applicant, Combined Building Services Pty Ltd by 4.00pm on 20 January 2012.

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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