QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Cooper & Anor v Callianiotis t/as Marathon Homes & Anor [2018] QCAT 256
PARTIES:
DAMIEN THOMAS COOPER
and
ELIZABETH AMY ROSE COOPER KNOWLES
(applicants)v CHRISTOPHER NICHOLAS CALLIANIOTIS T/AS MARATHON HOMES
and
DEIDRE CALLIANIOTIS T/AS MARATHON HOMES(respondents)
APPLICATION NO/S:
BDL140-16
MATTER TYPE:
Building matters
DELIVERED ON:
7 August 2018
HEARING DATE:
25 May 2017; 26 May 2017; 7 August 2017;
5 September 2017HEARD AT:
Rockhampton, Brisbane
DECISION OF:
Member Deane
ORDERS:
1. Christopher Nicholas Callianiotis and Deidre Callianiotis t/as Marathon Homes are to pay Damien Thomas Cooper and Elizabeth Amy Rose Cooper Knowles the sum of $11,760 by 4:00pm on 7 September 2018.
2. Any Application for costs including for reserved costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 7 September 2018.
3. If any Application for costs is made:
(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 28 September 2018;
(b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 12 October 2018;
(c) the Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00 pm on 12 October 2018.
4. If no Application for costs is made in accordance with Order 2 then there shall be no order as to costs.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – domestic building dispute – whether home owners validly terminated the contract because the works were not finished within a period that is 1.5 times the building period – whether builder validly extended time for completion – whether practical completion of the works achieved prior to termination – whether works were substantially complete – whether builder entitled to payment of final claim – whether home owners are entitled to damages for incomplete and defective work – whether home owners entitled to damages for solatium – whether liquidated damages are payable – whether the liquidated damages daily rate is unjust and ought to be increased
Domestic Building Contracts Act 2000 (Qld), s 18, s 79,
s 90, Schedule 2
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA57
Archibald v Powlett [2017] VSCA 259
Bellgrove v Eldridge [1954] HCA 36
Chelbrooke Homes Pty Ltd v Russell & Anor [2011] QCAT 278
Coshott v Fewings Joinery Pty Ltd [1996] NSWSC 270
Dyer v Spence [2017] QCAT 211
IC & DL McKay Pty…
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- Case
- [2018] QCAT 256
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the interpretation of the contractual terms regarding the extension of the completion period and the achievement of practical completion. Additionally, the tribunal needed to assess whether the homeowners were justified in terminating the contract and whether they were entitled to damages for incomplete and defective work. The builders sought to prove that the works were substantially complete and argued that they were entitled to their final claim for payment. The tribunal also had to consider the homeowners' claim for damages for solatium and the fairness of the liquidated damages daily rate.
The tribunal found that the homeowners had validly terminated the contract as the works had not been completed within the extended period. The tribunal held that practical completion had not been achieved prior to the termination, and the works were not substantially complete. Consequently, the builders were not entitled to their final claim for payment. The tribunal awarded the homeowners damages for incomplete and defective work but dismissed their claim for solatium. The tribunal also considered the reasonableness of the liquidated damages daily rate and concluded that it was not unjust. As a result, the tribunal ordered the builders to pay the homeowners a sum of $11,760 within the specified timeframe.
The tribunal also set out a procedure for any party to apply for costs, including reserved costs, and established a timeline for submissions and evidence. If no application for costs was made by the specified date, there would be no order as to costs. This case underscores the importance of adhering to contractual obligations and the consequences of failing to do so in domestic building disputes.
Orders
Orders of the court
1. Christopher Nicholas Callianiotis and Deidre Callianiotis t/as Marathon Homes are to pay Damien Thomas Cooper and Elizabeth Amy Rose Cooper Knowles the sum of $11,760 by 4:00pm on 7 September 2018.
2. Any Application for costs including for reserved costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 7 September 2018.
3. If any Application for costs is made:
(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 28 September 2018;
(b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 12 October 2018;
(c) the Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00 pm on 12 October 2018.
4. If no Application for costs is made in accordance with Order 2 then there shall be no order as to costs.
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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