| CITATION: | Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262 |
| PARTIES: | Contrast Constructions Pty Ltd |
| v | |
| Brett Andrew Bartlett |
| APPLICATION NUMBER: | APL370-13 |
| PARTIES: | Brett Andrew Bartlett |
| v | |
| Contrast Constructions Pty Ltd |
| APPLICATION NUMBER: | APL332-13 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM Member Favell |
| DELIVERED ON: | 9 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Appeals are allowed in part. 2. The order made that Contrast Constructions Pty Ltd pay Mr Bartlett the sum of $218,940.17 is reduced by $2900 to $216,040.17. 3. Interest should be allowed in addition on the sum of $216,040.17 ($218,940.17 less $2900) at the rate of ten percent per annum compounding monthly between 15 December 2009 and 4 February 2013. |
| CATCHWORDS: | APPEALS - BUILDING DISPUTE - whether error of law - whether leave to appeal required -whether acceptance of repudiatory conduct -whether reasonable to issue a notice to remedy after work abandoned - whether liquidated damages appropriate - whether interest awarded appropriate |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Senior Member Stilgoe
In this matter the Appeal Tribunal consisted of Mr Favell, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Member Favell
Mr Bartlett contracted with a building company, Contrast Constructions Pty Ltd, on 23 June 2006 to build a house on the riverfront at 32 Hiron Street, St Lucia at a cost of $2,302,000. That sum was adjusted to $2,520,097.96.
The contract was administered by an architect who also acted as an assessor. The role of the architect was to provide instructions to the builder, to act independently in assessing claims for delay costs, costs for completion of work and any claims for liquidated damages arising from a change to the date of practical completion.
The architect for the purpose of administering and assessing the contract was initially Bligh Voller Nield Pty Ltd. The parties had agreed at the hearing of this matter that DM2 Architecture became the architect from 14 October 2008.
In a decision now sought to be the subject of appeal the learned Member described the house as unique in that it had various items to be used in its construction that were of a high quality and design. She gave the example that there were approximately 20 windows to be installed using a PBC product instead of wood. The PBC product is rare for Australian standards but not uncommon in the European and Asian markets and was, according to the builder, a difficult product to source.
Apparently there were difficulties associated with the supply of PBC windows and the application of paint to the surface which had to be sourced through a German automotive paint supplier. Mr Bartlett later elected to proceed with wood…
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- AGLC
- Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262
- Case
- [2014] QCATA 262
- Decision Date
CaseChat Overview and Summary
The central legal issue in the appeal was whether the Tribunal correctly interpreted and applied clause M8 in ruling that Bartlett's claim for liquidated damages should fail. Bartlett had argued that Contrast Constructions was liable for liquidated damages from 21 March 2008, the adjusted date for practical completion, until 15 December 2009, the date the contract was terminated. The Tribunal found that Bartlett's claim for liquidated damages should fail because outstanding instructions and other issues would have delayed practical completion, justifying an extension of time for Contrast Constructions. Furthermore, the Tribunal noted that Bartlett unreasonably delayed in serving a notice to remedy the breach.
The Court of Appeal found that the Tribunal had indeed erred in its interpretation of clause M8. The Court held that the Tribunal should not have considered the outstanding instructions and other issues in determining whether Contrast Constructions was liable for liquidated damages. The Court further found that Bartlett's delay in serving the notice to remedy the breach did not affect the liability for liquidated damages. The Court of Appeal thus allowed the appeal in part, reducing the amount Contrast Constructions had to pay Bartlett and allowing interest on the reduced amount.
The final orders of the Court of Appeal were that the appeals were allowed in part, reducing the payment from Contrast Constructions to Bartlett to $216,040.17 and allowing interest on this amount at a rate of ten percent per annum compounding monthly from 15 December 2009 to 4 February 2013.
Orders
Orders of the court
1. The Appeals are allowed in part.
2. The order made that Contrast Constructions Pty Ltd pay Mr Bartlett the sum of $218,940.17 is reduced by $2900 to $216,040.17.
3. Interest should be allowed in addition on the sum of $216,040.17 ($218,940.17 less $2900) at the rate of ten percent per annum compounding monthly between 15 December 2009 and 4 February 2013.
Background
Background to the litigation
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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