Cronk v Harris

[2009] QDC 408

[2009] QDC 408

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE NOUD
No 1746 of 2009

MALCOLM CRONK AND SARAJANE CRONK	Applicants
and
BRIAN GLEN HARRIS	Respondent
BRISBANE ..DATE 21/12/2009 JUDGMENT

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HIS HONOUR: This is an application for leave to appeal from a decision of a Member of the Commercial and Consumer Tribunal. Miss Treston appeared for the applicants and Mr O'Regan for the respondent.	1
The application concerns the validity of a notice to terminate	10
given by building owners to a builder. The date of the notice
was 8 October 2008. It was preceded by a notice of intention
to terminate dated 19 September 2008. Both notices were given
pursuant to clause 20 of the contract between the parties,
that contract being dated 18 April 2007.	20
The contract was varied on 20 February 2008. The variation
provided for stages of completion and for payments (see page 8
of the Member's reasons where the terms of the variation are
set out). Between April 2007 and February 2008 there were	30
delays with the building project. Some of these delays were
due to the builder but I gather, from the Member's reasons,
that the cause of the delays was lack of funds, that, of
course, being the responsibility of the owners. That
approach, in my view, was open to the Tribunal Member.	40
The parties sought to impose some rigour into arrangements by
February 2008, hence, the variation. However, the builder continued to experience difficulties as is apparent from a September 2008 meeting (see paragraph 60 of the Member's	50

reasons). That approach was also open to the Tribunal Member
in my view. Nevertheless, as I have said, a notice of
intention to terminate by the owners was sent on 19 September
2008 and in it allegations were made that the builder had 1-2 JUDGMENT 60

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failed to complete the requisite stages. The Member found
that the notice was good and that the builder was, in fact, in
breach of the contract as varied. In that the Member was
upholding the agreement between the parties (see also

paragraphs 51, 69 and 72 of the Member's reasons).	10
The notice to terminate, however, involved a different issue (see pages 4 - 5 of Mr O'Regan's submissions where clause 20 of the contract of 18 April 2007 is set out). What the Member
had to decide there was whether the notice to terminate was	20
given unreasonably. If it was, then the notice would be null and void and that, in fact, is what the Tribunal Member found.
Ms Treston argues that in this the Tribunal Member erred in
law and that leave to appeal should be granted. It is	30
implicit that the argument is that leave be granted, the
appeal heard, and that it be decided in favour of the owners,
that is, that the Tribunal Member's decision be overturned.
Ms Treston relies on a number of matters (see especially pages
8 - 12 of Ms Treston's submissions). I have had regard to	40
that and have given attention especially to counsel's point
that the Tribunal Member, by his approach, was, in fact,
endeavouring to make a different or fairer contract for the
parties instead of dealing with the one he had before him.
With respect, I am unable to view the case in that way. I	50
think the Tribunal Member went about it correctly. He made
findings relevant to clause 20(1) and then went on to consider
factors relevant to clause 20(2) of the contract.

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The failure on the part of the builder in relation to

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completion of stages did not mean that the giving of notice in
that regard could not be unreasonable. In the present case
that, in effect, is what the Tribunal Member found. The
Tribunal Member, as I think, took the view that even though

the builder did not complete on time, too little time (ten	10
days) was given in the relevant notice. There was evidence supporting that approach. The Tribunal Member also thought that that issue had to be determined in the light of the
builder's difficulties in obtaining funds to go forward with
the building. All that, in my opinion, was open to the	20
Tribunal Member.
The Tribunal Member's reasons at paragraphs 80 - 83 of his
reasons are, it is true, brief but they follow a very
comprehensive treatment of law and fact and the Tribunal	30
Member to my mind left no doubt as to the reasons for his
final decision. It would be unfair to expect the Tribunal
Member to go over again at page 13 of his reasons that which he had already dealt with in detail and which formed part of the basis for his decision. I think the Tribunal Member's	40
meaning is clear, namely, that there were delays by the
builder, that he, the builder, was not the real cause of that
but that the owners were and that the giving of notice to
terminate, allowing as it did for only ten days, in all the
attendant circumstances was unreasonable.	50
Now, it is true that the Tribunal Member did not expressly

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take into account the many points submitted on by Ms Treston

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but, in my opinion, he was not required to do so and in this I
agree with Mr O'Regan's submissions. The fact is that the
Tribunal Member took into account contractual obligations of
the parties and also, all the surrounding circumstances as he

saw them.	10
The Tribunal Member did not deal with the builder's conduct
between the time of the notice of intention to terminate and
the notice to terminate nor did the Tribunal Member ask
himself about what the owners were supposed to do in the light	20
of what had transpired. I am sure, however, that the Tribunal
Member is not ignorant of these features. The real issue is
whether it was open to the Tribunal Member to come to the view
that the notice to terminate was given unreasonably. I
agree with Mr O'Regan in this regard. I am of the opinion	30
that it was open to the Tribunal Member.
Finally, I am of the view that when the Tribunal Member spoke about "duress", and the like, in relation to what the builder was undergoing, he, the Tribunal Member, was really addressing	40
the issue of reasonableness.
The principles in relation to an application for leave to
appeal are well known (but see page 2 of Mr O'Regan's
submissions). I do not think the Tribunal Member, for the	50

above reasons, erred in law and I do not consider that the
case raises issues of wider importance, that is, going beyond
the interests of the parties. If there were errors of law of
the kind relied on, I would, nevertheless, have dismissed the
appeal because, taking account of relevant matters, I agree
with the general approach of the Tribunal Member and with his
conclusion. 1-5 JUDGMENT 60

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It follows, for the above reasons, that the application for	10
leave to appeal must be dismissed and I order accordingly.
I shall hear the parties as to costs.
MR O'REGAN: Your Honour, I ask for the respondent's costs on	20
the standard basis.
HIS HONOUR: Have you got anything to say about that?
MS TRESTON: No, your Honour.	30
HIS HONOUR: All right. I order that the applicants pay the respondent's costs of and incidental to the application on the standard basis. Nothing arising?
40
MR O'REGAN: No, your Honour.
MS TRESTON: No, your Honour.

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