Cooper v Callianiotis t/as Marathon Homes - [2018] QCAT 256

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 2017

HEARD 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 28

Agricultural 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…

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.

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Details

Case: [2018] QCAT 256
Decision Date: 7 August 2018

CaseChat Overview and Summary

In the matter of Damien Thomas Cooper and Elizabeth Amy Rose Cooper Knowles versus Christopher Nicholas Callianiotis and Deidre Callianiotis trading as Marathon Homes, the dispute involved issues of contract termination, practical completion, and entitlement to payment and damages. The case was heard in the Queensland Civil and Administrative Tribunal. The Coopers, as homeowners, alleged that Callianiotis had failed to complete the works within the specified timeframe, leading to their decision to terminate the contract. The builders, Marathon Homes, argued that the time for completion had been validly extended and that the works were substantially complete. The tribunal was required to determine the validity of the contract termination, the achievement of practical completion, and the entitlement to payment and damages.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2017
HEARD 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 28 Agricultural 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…