Contrast Constructions Pty Ltd v Bartlett - [2013] QCAT 322

CITATION:

Contrast Constructions Pty Ltd v Bartlett [2013] QCAT 322

PARTIES:	Contrast Constructions Pty Ltd (Applicant)
v
Brett Bartlett (Respondent)

APPLICATION NUMBER:

BD469-08

MATTER TYPE:

Building matters

HEARING DATE:

4, 5, 6, 7, 8 February 2013 and 1 July 2013

HEARD AT:

Brisbane

DECISION OF:

Joanne Browne, Member

DELIVERED ON:

5 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applicant to pay the Respondent the amount of $219,162.84 plus $130,547.35 in interest by 4.00pm on 5 September 2013.

2. Any submissions on costs to be filed in the Tribunal and served on the other party by 4.00pm on 12 September 2013.

3. Any submissions on costs in reply to be filed in the Tribunal and served on the other party by 4.00pm on 26 September 2013.

4. Any application for costs will be determined on the papers without an oral hearing by the member who conducted the hearing in these proceedings.

CATCHWORDS:

BUILDING DISPUTE – where contract to build house – where architect to administer and assess claims under the contract – where contract provided for adjustment of time costs for an extension of time – whether home owner was in breach – where builder abandoned the site – assessment of claim for incomplete and defective works.

Queensland Civil and Administrative Tribunal Act 2009, s 47
Queensland Building Services Authority Act 1991, s 77

Shevill v Builders Licensing Board (1982) 149 CLR 620
Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Contrast Constructions Pty Ltd represented by Mr Michael Labone of counsel instructed by Mills Oakley Lawyers

RESPONDENT:

Mr Brett Bartlett represented by Mr Peter Hacket of counsel instructed by MSB Lawyers

REASONS FOR DECISION

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.[1]
[1] Adjusted contract sum (agreed) is $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 purposes of administering and assessing the contract was initially Bligh Voller Nield Pty Ltd (BVN). The parties agree dm2architecture (DM2) became the architect from 14 October 2008. [2]
[2]Agreed “Issues for determination” filed on 8 February 2013.
The house could be described as unique in that it had various items to be used in its construction that are of a high quality and design. For example, there were approximately 20 windows to be installed using a PVC product instead of wood. The PVC 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.
The Tribunal heard evidence at 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 Contrast Constructions Pty Ltd v Bartlett

Details

AGLC: Contrast Constructions Pty Ltd v Bartlett [2013] QCAT 322
Case: [2013] QCAT 322
Decision Date

CaseChat Overview and Summary

Contrast Constructions Pty Ltd (the builder) was contracted to build a house for Brett Bartlett on 23 June 2006 for a cost of $2,302,000. The contract was administered by an architect who was also responsible for 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 parties could not resolve their disputes, and proceedings were commenced in the Queensland Civil and Administrative Tribunal (QCAT). The primary issues for determination included whether the builder was entitled to an adjustment of time costs for an extension of time, whether Mr Bartlett was in breach of contract, and what is a reasonable value of the incomplete and defective work. Both parties were legally represented, and the material before the Tribunal was voluminous, including 38 exhibits tendered at the hearing. The builder was satisfied to be entitled to an adjustment of time costs for an extension of time between 18 January 2007 and 16 July 2007, and between 14 March 2008 and 15 August 2008, and between 15 August 2008 and 26 September 2008. The builder was not satisfied to be entitled to an adjustment of time costs for an extension of time between 2 October 2008 and 20 December 2008, as Mr Bartlett was in breach of contract. The Tribunal found that Mr Bartlett is not entitled to liquidated damages, but he is entitled to be put in the position had the works been completed by the builder as provided under the contract. The reasonable value of the incomplete and defective work was determined by the Tribunal, and the total value for incomplete and defective items, including interest, was $415,429.78. The final order was that the builder pay Mr Bartlett $219,162.84 plus interest in the amount of $130,547.35 by 4.00pm on 5 September 2013.

The court in Contrast Constructions Pty Ltd v Bartlett addressed several issues in the context of a building dispute between a builder and a homeowner. The primary legal issues included whether the builder was entitled to an adjustment of time costs for an extension of time, whether the homeowner was in breach of contract, and the reasonable value of incomplete and defective work. The court found in favour of the builder in terms of entitlement to adjustment of time costs for certain periods but not for others. It determined that the homeowner was not in breach of contract and, therefore, the builder was not entitled to liquidated damages. The court also assessed the reasonable value of the incomplete and defective work, taking into account the expert evidence and the context of the high-quality fixtures and fittings involved in the construction. The final order required the builder to pay the homeowner a specified amount, plus interest, by a certain date.

Orders