Dalby Constructions Pty Ltd v Queensland Building and Construction Commission - [2025] QCAT 75

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dalby Constructions Pty Ltd v Queensland Building and Construction Commission & Ors [2025] QCAT 75

PARTIES:

DALBY CONSTRUCTIONS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

ZELJKO VRABEL

(second respondent)

LJILJANA VIDOVIC

(third respondent)

APPLICATION NO:

GAR120-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

26 February 2025

HEARING DATE:

23 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

1.     The internal review decision of the Queensland Building and Construction Commission dated 17 January 2023 is set aside and replaced with a decision by the Tribunal that the Contract was not validly terminated.

2.     No order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE LAW – application by builder to review a decision by QBCC that homeowner validly terminated the contract having the consequence of allowing a claim for non-completion under the Queensland Home Warranty scheme

Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(i), s 86A(1), s 86E, s 87, Sch 1B

Queensland Building and Construction Commission Regulation 2018 (Qld), Sch 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

APPEARANCES & REPRESENTATION:

Applicant:

Mr C H Matthews, instructed by All Building Law

First respondent:

Mr R Ensbey SC, Gadens

Second and third respondents:

MS M CAMPBELL, HEARTHSTONE LEGAL

REASONS FOR DECISION

Background

This is an application by the applicant, Dalby Constructions Pty Ltd (‘Dalby Constructions’) for the review of an internal review decision made by the first respondent, Queensland Building and Construction Commission (‘the Commission’) dated 17 January 2023 confirming the original decision of the Commission made on 27 October 2022 that the domestic building contract between Dalby Constructions and the second respondents, Zeljko Vrabel and Ljiljana Vidovic (‘Vrabel and Vidovic’), the homeowners, was validly terminated for incomplete work. As a result, the claim by Vrabel and Vidovic under the statutory insurance scheme (known as the Queensland Home Warranty Scheme) was accepted by the Commission in full.
Part 2 of Schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld) provides for assistance to the homeowner where the building work is carried out under a fixed price residential contract, the contract ends within two years after the day work starts under the contract, and the work is incomplete. Section 4(1)(a) of Schedule 6 provides that a fixed price residential contract ends if the contract is validly terminated on the default of the licensed contractor.
Section 86(1)(i) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides that a decision that a domestic building contract has been validly terminated having the consequence of allowing a claim for non-completion under the statutory insurance scheme is a reviewable decision. Section 86A(1) confers the right to internal review of that decision, and by section 86E, an internal review decision is also a reviewable decision. Section 87 confers the right to apply to the Tribunal, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), for a review of the reviewable decision.
I am satisfied the Tribunal has jurisdiction to hear and decide this application.
The evidence
Mr Shane Dalby, a director of Dalby Constructions, filed two signed statements of evidence dated 22 June 2023 and 22 August 2023 in respect of which he gave oral evidence at hearing.
Mr Zjelko Vrabel filed one signed statement of evidence dated 27 July 2023 in respect of which he gave oral evidence at hearing.
The Commission’s statement of reasons for the decision under review and other documentary evidence filed by the parties prior to hearing are contained in the paginated three-volume hearing book filed in the Tribunal on 18 October 2024.
The Form 6 Decision Notice Approval dated 16 December 2020 was filed post hearing and agreed by the parties to form part of the evidence.
Screen shots of certain text messages from “Concreter Dan” dated 22 July 2022, and 5 and 6 September 2022 were filed post hearing and agreed by the parties to form part of the evidence.
The Contract
Dalby Constructions and Vrabel and Vidovic entered into and signed a QBCC New Home Construction Contract on 31 October 2020 for the construction of a highset dwelling at 33 Eyre Street, Mt Gravatt East in the state of Queensland at a contract price of $538,431 (‘the Contract’).
Item 2 of the schedule to the Contract provides for the payment of a deposit in the amount of $26,921.55.
Item 6 of the schedule to the Contract provides for a completion period of 268 days from the starting date to the date for practical completion comprised of: 170 business days for construction of the works; 10 business days’ allowance for inclement weather; and 88 non-working days (including weekends and public holidays).
Item 5 of the schedule to the Contract dealing with the starting date is not completed.
Item 7 of the schedule to the Contract dealing with the date for practical completion is not completed. Below, where the date can be inserted, there is an alternative option, which reads: “Completion Period of ____ calendar days (see Schedule Item 6) from the Starting Date or the date on which the work under the Contract is commenced, whichever is the earlier”.
Item 8B of the schedule to the Contract provides for progress payment stages as follows:
Stage 1: Base stage  25%     $134607.75
Stage 2: Frame stage  20%     $107686.20
Stage 3: Enclosed stage               25%     $134607.75
Stage 4: Fixing stage  20%     $107686.20
Practical Completion stage           5%      $26921.55
The dollar amount in Item 10 of the schedule to the Contract dealing with liquidated damages for each calendar day of delay in achieving practical completion is completed as ‘$NIL’. Clause 24.2 of the General Conditions to the Contract provides that if item 10 is left blank, the default amount of $50 per day shall apply.
Item 15 of the schedule to the Contract provides that the plans are supplied by the owner and the specifications and foundations data are supplied by the contractor.
The “Specifications & Inclusions” are set out over two pages signed by the parties and annexed to the Contract. They cover 21 aspects of the construction in varying degrees of particularity. Relevant to the matters in dispute are the following particulars:
Concrete slab:
Steel reinforced concrete slab to engineer’s footing and slab design
Full termite protection to AS standard
N.B. Excavation of rock and removal of excess soil will incur an extra cost
Front porch/balcony/patio:
Colourbond roof, fully lined ceiling and tiling to floor
Landscaping and other:
Slab for shed
The “Exclusions not applicable to the Specifications & Inclusions” are set out on a single page signed by the parties and annexed to the Contract. The particulars are as follows:
All joinery and stone (kitchen, vanities, laundry unit etc)
Timber flooring
Painting
Vacuum/intercom/security system
Carpet to media, bedrooms and robes
Electrical mains, rough-in, fit off and all pc items
Plumbing pc items
All appliances
Stairs and all balustrading (internal and external)
Condition 3.1 of the General Conditions of the Contract sets out the contractor’s warranties in accordance with Schedule 1B of the QBCC Act. I note the following warranties in particular:
(a) The work under this Contract will be carried out in an appropriate and skilful way and with reasonable care and reasonable diligence.
(d) The work under this Contract will be carried out in accordance with the plans and specifications and any other Contract documents described in Schedule Item 15.
Pursuant to condition 13.1 of the General Conditions of the Contract, the owner gives the contractor a licence to access the site sufficient to enable the contractor to commence and carry out the works from the starting date until the contractor hands over the works to the owner on the date of practical completion.
Pursuant to condition 13.3 of the General Conditions of the Contract, the contractor must permit the owner, or any person authorised by the owner to, under the contractor’s supervision: (a) have reasonable access to the site; and (b) view any part of the work.
Pursuant to condition 13.4 of the General Conditions of the Contract, the owner or the owner’s authorised representative must not reasonably interfere with the performance of the work when at the site.
Pursuant to condition 17.3 of the General Conditions of the Contract, the contractor must diligently carry out the work and must not, except as permitted by the Contract, delay, suspend, or fail to maintain reasonable progress in the performance of that work.
Pursuant to condition 22 of the General Conditions of the Contract, the contractor must achieve practical completion by the date for practical completion stated in or calculated in accordance with Schedule Item 7 or any extended date under condition 23.
Pursuant to condition 23.2 of the General Conditions of the Contract, the contractor must take all reasonable steps to lessen the effect and duration of any delay.
Pursuant to condition 23.1 of the General Conditions of the Contract, subject to complying with condition 23.2, the contractor may only claim and is only entitled to a reasonable extension of the date for practical completion in certain prescribed circumstances, including a delay caused by the owner or the owner’s authorised representative, or another cause of delay which is not reasonably foreseeable and beyond the reasonable control of the contractor. A claim must be given to the owner within 10 business days of the earlier of the contractor becoming aware of the delay or when the contractor reasonably ought to have become aware.
Condition 26 of the General Conditions of the Contract provides for a right to terminate where a party is in substantial breach of the Contract, the other party gives a notice to the party in breach identifying and describing the breach and stating their intention to terminate if the breach is not remedied within 10 business days, and the breach is not so remedied. Then, the party giving the notice may terminate by a further written notice to the party in breach. The right to terminate under the Contract is in addition to any other powers, rights or remedies a party may have. Condition 26.4 provides a non-exhaustive list of conduct amounting to a substantial breach by the contractor, including unreasonably failing to perform the work diligently or unreasonably delaying, suspending or failing to maintain reasonable progress.
Development application approval
The Form 6 Decision Notice Approval is on RBA Residential Building Approvals letterhead with the details of Geoff Worrall Homes Pty Ltd at the foot. The document is addressed to Dalby Constructions regarding the development application for a new dwelling and retaining wall at 33 Eyre Street, Mt Gravatt East (being the property of Vrabel and Vidovic), and advises that on 16/12/20, the development application was approved with conditions as set out in Attachments 1 and 2. It is a lengthy document also attaching a range of plans relating to the property and proposed dwelling, Brisbane City Council reports, permits and approvals, a site investigation report dealing with soil testing, footing system design and drainage, and a Department of Housing and Public Works Form 15 compliance certificate for building design or specification.
The first paragraph under the heading ‘General Notes’ in the Form 6 provides that:
These drawings are to be read in conjunction with all relevant documentation from engineers, certifiers, builders and all other consultants in relation to the proposed works.

Each plan is stamped as follows:
APPROVED
RESIDENTIAL BUILDING APPROVALS
This plan is certified for compliance with the
BUILDING ACT 1975, the STANDARD
BUILDING REGULATIONS 1993 and the
BUILDING CODE OF AUSTRALIA.
This approval is subject to the attached
DECISION NOTICE and CONDITIONS OF
DEVELOPMENT PERMIT.
The document titled “SITE PLAN” delineates an area identified as: “Pool (refer owner)” crossed with two diagonal parallel lines with a note in handwriting alongside: “Pool is not part of this approval”.
The document titled, “LOWER FLOOR PLAN”, includes a drawing of the lower floor of the proposed dwelling and the following particulars, each of the areas delineated and identified on the drawing:
Living area (lower) – 119.184 sq m
Living area (upper) – 165.282 sq m
Garage area – 42.274 sq m
Porch area – 5.685 sq m
Patio area – 25.855 sq m
Unenclosed patio area – 15.774 sq m
Balcony area – 9.510 sq m
Total area – 383.564 sq m
Paid invoices
Dalby Constructions raised eight invoices, each paid by Vrabel and Vidovic. Below are the dates and amounts of the invoices and the descriptions on their face of the stage to which each invoice relates:
(a)31 October 2020 – $26,921.55 – deposit for contract
(b)10 June 2021 – $134,607.75 – progress payment for slab stage
(c)16 July 2021 – $107,686.20 – progress payment for frame and trusses stage
(d)17 September 2021 – $8,536.00 – additional charge for increase on frame and trusses due to delays as per client decision: notification to move house forward after receiving approval, and delays with left hand boundary retaining wall commencement
(e)28 September 2021 – $7,850.00 – additional costs relating to retaining wall on left hand boundary, originally quoted as 1m high
(f)28 September 2021 – $9,561.75 – removal of soil from site, as per specifications
(g)4 November 2021 - $134,607.75 – progress payment as per contract for enclosed stage
(h)22 February 2022 – $86,866.50 – progress payment for fixing stage as per contract ($107,686.20) less variation for credit for tiling supply and lay ($20,819.70).
Owner Builder Permit
The Commission issued Owner Builder Permit number OB145080 to Vrabel and Vidovic on 17 March 2022. I note the following particulars:
Term of permit – ends:     17 March 2028
Notified value of work:     $195,000.00
Property description:        33 Eyre Street, Mount Gravatt East Qld 4122
Description of work:        New dwelling
Work description detail:    Construct new two storey dwelling with five bedrooms, three bathrooms, and verandahs
Text messages about concreting work
Text exchanges between Mr Dalby and Concreter Dan:
4 Feb 2022 at 8:24 am
Dalby: Hey mate just confirming it was the 23^rd 6.30 yea?
Dan:Yep
21 Feb 2022 at 6:52 am
Dan: Hey mate can you send me through the address for the 23^rd when you get a chance. Cheers mate [thumbs up symbol]
23 Feb 2022 at 4:20 am
Dan:Not pouring today mate, let’s go for the 5^th. Cheers
Dalby: [thumbs up symbol]
29 June 2022 at 12:31 pm
Dalby:Hey mate, how r u travelling with a date for eyre st Mt Gravatt for rear and courtyard concreting? Cheers Shane
Dan:Hey mate weather keeps pushing me back mate. I will let you know a date hopefully end of next week. I am a minimum of 6 weeks out tho unfortunately. Cheers mate talk soon.
22 Jul 2022 at 12:49 pm
Dalby:Hey mate, can you give me any dates yet for Mt Gravatt. Thanks Shane
Dan:Hey mate, I could possibly get it done for you end of August and 2^nd week of September. Weather permitting. Cheers Dan
5 Sep 2022 at 3:44 pm
Dan:Hey mate we still right for this friday and following tuesday?
6 Sep 2022 at 6:51 am
Dalby:For Mt Gravatt, no mate they have moved in even though we said we would do it around this time, so for now don’t worry about it mate. Thanks
Correspondence between Dalby Constructions and Vrabel and Vidovic
Email from Mr Dalby to Vrabel and Vidovic dated 3 March 2022 regarding various aspects of the Contract work. I note the following paragraphs:
…
Major delays with concreting due to covid, supply & weather, due to this they want [sic] give us any dates at the moment as they are way behind, so if you want a credit for this so you can organise your own please let us know.
…
Regarding rear lower extended roof, it’s not part of the specifications.
…
Regarding statement made about time lines, commenced February 2021 & immediate hold up due to your request to move the house forward 1.5m so delayed the job straight away.
Email from Mr Dalby to Vrabel and Vidovic dated 16 March 2022 regarding the main bathroom shower door and plumber booking. In addition, I note the following paragraph:
Concreter has still not confirmed any dates, as still behind as stated in previous email.
Email from Mr Dalby to Vrabel and Vidovic dated 18 April 2022 regarding the main bathroom shower door and plumber booking. In addition, I note the following paragraph:
I have continued to communicate with the concreter but he has not given me an answer – therefore I do not have a solid date. Have also tried to source other concreters but the industry is too busy and has had major impact from weather, Covid and supplies, and concreters are very hard to engage at the moment.
As previously mentioned, a credit for all concrete work can be given as an option, and this would escalate finalisation of this project.
Moving forward then, a final inspection can be arranged, and once we have this final certificate and payment – less the credit for the concreting, you may then move in.
…
If you do not wish to go with this option, then it will continue to proceed as is, can only wait for a date to be provided by the concreter. And will notify you once given.
Email from Mr Dalby to Vrabel and Vidovic dated 16 May 2022 regarding various aspects of the Contract work. In addition, I note the following paragraph:
No progress on concreter due to weather conditions and other as previously stated – credit will have to be done.

On 7 June 2022, Dalby Constructions sent Vrabel and Vidovic four signed extension of time claims in Form 2 pursuant to Condition 23 of the General Conditions of the Contract. Below are the descriptions on the face of the forms of the delay to which each claim relates. The section at the foot of each form that allows for the owner to indicate their response to the claim, and to sign and date their response, is not completed.
(a)Boundary block wall – neighbour dispute, redesign and engineering of wall and moving house slab forward 1.5 metres. Delay arose on 10/02/21. Additional business days claimed: 51 days. New date for practical completion: 04/02/22.
(b)Inability to engage concreter – due to weather and labour shortages. Delay arose on 10/02/22. Additional business days claimed: 83 days. New date for practical completion: 01/06/22.
(c)Shower screens – due to client decision making in heights, configurations. Delay arose on 10/02/22. Additional business days claimed: 41 days. New date for practical completion: 28/07/22.
(d)Incomplete cabinetry under kitchen sink for plumber to complete to get plumbing final. Delay arose on 18/04/22. Additional business days claimed: 26 days. New date for practical completion: 02/09/22.
Final Inspection Report
I note the following details on the face of a single-page document titled “Final Inspection Report Only”:
(a)Date of inspection: 27 July 2022.
(b)Signature of “Geoff Worrall”.
(c)Site reference: 33 Eyre Street, Mt Gravatt East 4122
(d)The sections in the first third of the document are not completed.
(e)The section heading “FINAL” is circled and the boxes against the following items are ticked: boundary, downpipes, ground fall, slab height, soil stabilisation, stairs/balustrade, weepholes/flashing, smoke alarms, vermin protection, pipe penetration, shower taps, light ventilation, and lift off hinges. The boxes against sub floor vent and energy efficiency are not ticked. The box against wet area sealed is crossed.
(f)Under the section heading “MINOR ITEMS REQUIRING RECTIFICATION” the following items are listed in handwriting against numbers 1 to 5 respectively:
Tile & seal vanity basin
Max 190mm step outside of doorways
Deck to outside of study/media rooms
Pool not filled
Provide all certificates

Email dated 20 January 2023 from Geoff Worrall Residential Building Approvals to Vrabel and Vidovic and copied to Mr Dalby’s email address. I note the following paragraphs:
I wish to advise that the currency of this approval has been extended until 21-12-2023.
After this point of time, the approval will be cancelled, as only one extension of time can be granted.
The updated Form 6 Approval is attached.
Prior to the 21-12-2023, the items listed on my inspection report of 27-7-22 are required to be rectified and inspected. This report has been updated to include the construction of the rear patio roof.
A fee will be charged to yourself for this inspection and ongoing communications.
This report is attached.
I note in the blank space under paragraph 7 of the updated Form 6 Approval (the original version described in these reasons at paragraphs [29] to [32]) attached to Mr Worrall’s email is the handwritten date “21-12-23” indicating when the approval lapses.
I note the following details on the face of the updated inspection report (the original version described in these reasons at paragraph [42]) attached to Mr Worrall’s email:
(a)A further handwritten item (not numbered) added under the section heading “MINOR ITEMS REQUIRING RECTIFICATION:
Patio roof to be built [text circled] [arrow pointing to circled text] added on 20/1/2 [last number cut off on photocopy]
(b)In the blank space below the handwritten items, an “E-MAILED” stamp with “28/7/22” handwritten below.
(c)In the blank space at the foot of the document, an “E-MAILED” stamp with “31/8/22 to Solicitor” handwritten below.
Legal correspondence
Letter from Hearthstone Legal (lawyers for Vrabel and Vidovic) to Dalby Constructions dated 25 May 2022 attaching a Notice of Intention to Terminate pursuant to condition 26 of the General Conditions of the Contract (‘first breach notice’) on the basis that Dalby Constructions is in substantial breach of the Contract (particularised below). The notice gives the builder 10 working days (or 14 days) to remedy the breach, failing which it advises the owner’s intention to terminate the Contract.
1. You, as Builder, have failed to proceed with due diligence in relation to the Works required under the Contract in contravention of clauses 3.1 and 26.1(e) of the Contract. Particulars of the substantial breach is as follows:
(a)Clause 22 of the General Conditions of Contract requires you, as Builder, to achieve practical completion of the works the subject of the Contract within the timeframe provided for in the Contract.
(b)Item 6 and 7 of the Schedule of the Contract provides that works will be bought [sic] to practical completion within 268 days from the start of the work.
(c)You, as Builder, commenced Works under the Contract on or about February 2021, resulting in Practical Completion being due to be reach on or about 25 November 2021.
(d)The date for practical completion has not been extended as you have failed to provide the Owners with any valid extension of time claims.
(e)You have failed to bring the Works to practical completion in accordance with the Contract, on the basis that the date for practical completion has passed.
2. You, as Builder are in substantial breach of the Contract in that you have failed to undertake the works in an appropriate and skilful way and with reasonable care and reasonable diligence in contravention of clauses 3.1(a) and 17.3 of the Contract. The particulars of the substantial breach are as follows:
(a)The works the subject of the Contract were meant to reach practical completion by 25 November 2021.
(b)As at 22 February 2022, the works the subject of the Contract had only reached Fixing Stage.
(c)Since 23 February 2022, little progress has been undertaken at the Property.
(d)The works are not being progressed with reasonable diligence, which is a substantial breach of the Contract.
(e)It would appear that you have removed your signage from the Property, indicating that you may have abandoned the site and do not intend to complete the works the subject of the Contract.
Letter from All Building Law (lawyers for Dalby Constructions) to Hearthstone Legal dated 7 June 2022 rejecting that the builder is in substantial breach of the Contract as alleged, particularising delays caused by the owner as the reasons the works have not reached practical completion, and particularising other conduct by the owner. In addition, I note the following paragraphs:
60.    The concreting works are the only works that remain to be completed under the contract and our client is taking all reasonable steps to engage a concreter to complete those works. The emails attached to our covering email show that our client has been trying to engage a concreter and further has kept your client updated in relation to the issues our client has been having in having this work completed.
61.    Since receiving the Breach Notice our client has contacted its two (2) regular concreters and one said he could not do the job because he is too busy for the foreseeable future and the second one has advised he could potentially complete the concreting work in 4 to 6 weeks, however this is weather dependent. The second concreter advised he will contact our client in approximately 3 weeks’ time to try and lock in a date to do the work. This would appear to be the best option at this stage. Our client has also been approaching concreters on other work sites to see if they have capacity to take on this work but so far all of them have said to the effect that they are too busy and are still trying to catch up on a back log of work. …
65.    Our client concedes that there has not been a lot of progress on site since 23 February 2022, and this is because the only works that remain for our client to do are the concreting and our client has had difficulty engaging one due to the weather and jobs having to be pushed back meaning that concreters are already booked for several months.
67.    Our client has previously taken the reasonable step of offering a credit for the concreting so that the concreting could be omitted, final certificates obtained and the contract works finalised and handed over (after payment of the balance of the contract price is paid), but your clients have not responded to this proposal.
68.    In relation to the signage, our client will be attending at the site and dealing with the signage issue today or tomorrow. This issue is resolved.
Letter from Hearthstone Legal to All Building Law dated 9 June 2022 and emailed 10 June 2022 rejecting the assertions made in All Building Law’s letter dated 7 June 2022, particularising outstanding works to be done to reach practical completion, requesting that the site key be put in a secure location, and rejecting the extension of time claims. In addition, I note the following paragraphs:
…
Notwithstanding, our clients do not wish to engage in litigation by correspondence in relation to historical matters on the project that can no longer be altered. …
Our clients expect your client to comply with its contractual obligations and complete the work the subject of the Contract as a matter of urgency. They note the issues with the concreting subcontractor and requires that your client continue to take all reasonable steps to engage and book a concreter at the earliest possible time to undertake the works. …
For completeness, our clients do not agree to the extension of time claims and will engage in a dispute resolution process if necessary. However, on the basis that your client asserts it is ready, willing and able to complete the work and will do so with diligence, our clients are prepared to have your client complete the works the subject of the Contract.
Our clients will make enquiries with concreters as well to see if the process can be accelerated and expect that while a concreter is being engaged, the balance of the works can be completed, such that concreting is the last thing to be done. Our clients’ expectation is that it is reasonable for the works to reach practical completion on or before 29 July 2022.
Letter from All Building Law to Hearthstone Legal dated and emailed 21 June 2022 expressing appreciation for the owner’s willingness to resolve the matters in dispute, noting the difference in opinion between their respective clients as to the work that is required to be carried out under the Contract and providing specific responses in relation to various items of work. In addition, I note the following paragraph:
10. Concreting and the Date for Practical Completion: Our client continues to follow up with its concreter and will advise of a date for the concreting work to be done as soon as it is known. As at the time of writing this letter, a date has not been confirmed. Our client will take all reasonable steps to have the contract works reach Practical Completion by 29 July 2022. As noted in our client’s previous correspondence, this will be dependent on the weather and the concreter’s availability.
Paul Samper T/A Munruben Concreting quotation dated 23 June 2022 addressed to Vrabel and Vidovic and “The Solicitor” at 33 Eyre Street Mt Gravatt East, including the following description:
Quotation for concreting back yard plain concrete 25/20/100/mpa: shed, footpath, pergolas courtyard included waterproofing, exposed aggregate side of house, front yard and driveway. All up @ 190sqm2. Included: Machinery, sand, mesh F72, dowel bars, ableflex, concrete 25/10/100mpa and exposed aggregate, black & white 50/50% or Browne & with 50/50% and all labour for preparation and completion of job. Not included cutting of curb. We started [sic] Job when we have answer from owner solicitor who is responsibility [sic] for payment. We don’t know Builder and we don’t wish to know him. We exert [sic] the payment only from owner Solicitor.
Price    $47,825.00
GST     $4,782.50
Total    $52,607.50
Letter from Hearthstone Legal to All Building Law dated and emailed 24 June 2022 expressing appreciation for the builder’s willingness to complete the works, responding further to the previous letter’s specific responses in relation to various items of work. In addition, I note the following paragraphs:
10. Concreting. Our clients do not understand why it is taking so long for your client to organise concreting. Our clients have made several inquiries with concreters who have indicated that they could be available in the next few weeks to undertake the work. We are instructed that your client could contact three concreters – whose details are [details provided].
Our clients request that enquiries be made with the above contractors to assess availability in order to fast track the concreting works. Please confirm with our office as soon as the concreting has been booked.
Our clients look forward to the house reaching practical completion by 29 July 2022.
Email from All Building Law to Hearthstone Legal dated 29 June 2022 advising attendance at site by the air conditioning contractor and plumber the following day and requesting the owner’s final working drawings for cabinetry to be made available to the plumber urgently.
Email from Hearthstone Legal to All Building Law dated 30 June 2022 suggesting that the plumber proceed in accordance with the instructions left on site as the owner’s cabinet maker is not available to attend site, providing the name and contact details of another concreter who is available to undertake the job from mid-July and requesting that the builder make contact as soon as possible with one of the suggested contractors to book the work in. In addition, I note the following paragraph:
We advise that the completion of the job is now becoming a serious matter of urgency. The rental property that our clients currently reside in is not likely to extend their lease beyond 31 July 2022. Given the house should have been completed months ago, our clients are currently paying rent and mortgage and the continued delay is causing significant financial and health issues for our clients. The want the house completed urgently. As such, we require a response to our letter and this email with confirmation of when the concreting work will be done and surety that your client will have the works completed by 29 July 2022.
Email from All Building Law to Hearthstone Legal dated 5 July 2022 regarding site access by the owner’s trades, confirming access granted for that day but not the following day, and not agreeing to give the owner a second key to the property. In addition, I note the following paragraph:
If future reasonable access is required, as our client has said, your clients can email our client ahead of time (our client considers that 48 hours prior notice is reasonable) and have the relevant trade contractor contact our client to request and, if appropriate, arrange the access. Each request for access should include the reason for the access, if access is for works it should include a brief description of the works that are being done, and the window of time that the relevant contractor (or your clients) will need to be on site. Our client will then consider whether the request for access is reasonable.
Email from Hearthstone Legal to All Building Law dated 6 July 2022 regarding site access issues and disagreements, requesting access on 9 July for the owner’s cabinet maker, and advising outstanding work. In addition, I note the following paragraph:
On the issue of concreting, our clients provided you with a number of options for concreters that had availability to undertake the concreting at the house, which [sic] the last large portion of work to be done for the house to be completed. Please advise of the progress on this work without delay.
Email from All Building Law to Hearthstone Legal dated 7 July 2022 advising the builder is not able to facilitate access on 9 July and noting the request for access did not comply with the notice requirements. The email does not respond to the concreting issue.
Letter from All Building Law to Hearthstone Legal dated and emailed 8 July 2022 updating on the status of various works, site security and access. In addition, I note the following paragraphs:
4. Veranda at the back of house. Our client maintains their position that this work is not required to be carried out under the Contract. It is not included in the specification.
Your letter states that the fact that our client would not be constructing this area should have been made known to your clients at the time your clients showed our client what they wanted. Our client did advise your clients of this at the time your clients showed our clients what they wanted at their previous house where your clients pointed out the area to our client. With our email to you of 21 June 2022 we provided a screen shot of an email regarding this. It is attached again to our cover email accompanying this letter.
In any event, as our client has previously said, your clients have always been well aware that they are responsible for constructing the rear veranda.
7. Concreting. Our client has been in contact with his concreter to try and get the concreting works booked in. However, the concreter does not have a date available to complete the concreting works at this stage. Regrettably, the recent inclement weather will likely cause further delays to the completion of the concreting works.
Our client will continue to follow up with its concreter and will advise of a date for the concreting work to be done as soon as the date is known.
Our client is trying to have the concreting works completed as soon as possible but cannot guarantee that the works will be completed by 29 July 2022 as your clients have requested, as this is outside our client’s control.
Your client has suggested that our client use one of the concreters that your client has contacted. Our client does not wish to engage a concreter whom they do not know.
Conclusion. All Contract works are now complete with the exception of the concreting works and the minor rear tap issue.
Our client will be in touch with your clients directly as to their progress in arranging a time for their concreter to complete the concreting works.
Our client remains ready, willing and able to perform the Contract.
Attached to the letter is an email dated 9 December 2021 sent at 9:30PM from Mr Dalby’s wife, Kelly Dalby, to Mr Vrabel. I note the following paragraph:
As discussed on site a few months ago, regarding rear patio, you asked about doing it (as you have stated again in this email) and I informed you that we only agreed to concrete and tile that area but were not installing rear patio (also not in specifications) and we do not install that style of patio – stated to you when you pointed out to me on site from your previous house.
Email from Hearthstone Legal to All Building Law dated 21 July 2022 requesting an update on the scheduling of the concreting as a matter of urgency.
Build Easy Constructions estimate dated 30 July 2022 addressed to Vrabel and Vidovic, including the following description:
Supply and install concrete driveway and pathway to left side of house.
Supply and install concrete to back patio.
Price includes cost of materials, labour and concrete pump and machinery.
Additional labour allowance due to limited side access for machinery.
Price excludes concrete to courtyard due to inability to access the site and measure up.
Amount:    $25,000.00
GST:        $2,500.00
Total:       $27,500.00
Email from Hearthstone Legal to All Building Law dated 2 August 2022 advising of the owner’s complaints about lights being left on at site and a broken pipe, requesting access on 5 August and confirmation of booking for concreting.
Email from All Building Law to Hearthstone Legal dated 5 August 2022 advising that the builder is not able to grant access on 5 August.
Letter from Hearthstone Legal to Dalby Constructions dated 11 August 2022 (‘second breach notice’) and copied to All Building Law by email on the same date. I note the following paragraphs:
Our clients consider that Dalby Constructions is in substantial breach of the Contract on the basis that it has:
1.     unreasonably failed to progress the works diligently in that it has not commenced or taken reasonable steps to commence and complete the external concreting works; and
2.     failed to, or refuses to undertake the construction of the external back veranda, despite the veranda being shown on the plans and included in the specifications; and
3.     unreasonably refused access to the site by our clients or their subcontractors to progress works that were our clients’ obligation to have completed; and
4.     unreasonably failed to bring the works to practical completion by the date for practical completion, as extended, or at all.
Further, our clients consider that Dalby’s actions in refusing reasonable requests for access, failing to commence and complete the external concreting, refusing to undertake the construction of the veranda and generally causing delay in the completion of the works the subject of the Contract (most notably by failing to progress any works in the last 6 weeks) is conduct which clearly evinces Dalby’s intention to no longer be bound by the terms of the Contract and equates to a repudiation of the contract.
Our clients accept Dalby’s repudiatory conduct as outlined in the paragraph above and hereby elect to terminate the Contract effective immediately.
Letter from All Building Law to Hearthstone Legal dated and emailed 17 August 2022 rejecting that the builder is in substantial breach of the Contract as alleged and stating that the builder is ready, willing and able to complete the works under the Contract. I note the following paragraphs:
Any recent delays are as a result of the parties trying to resolve certain issues about the work under the Contract.
In the circumstances, your clients have repudiated the Contract and out client elects to affirm the Contract.
Submissions

I am assisted by the following written submissions filed by the parties’ lawyers:
(a)Submissions of the First Respondent (13 November 2024).
(b)Second Respondents’ Submissions (15 November 2024).
(c)Applicant’s Written Submissions 5 December 2024.
(d)Submissions of the First Respondent in Reply to the Submissions of the Applicant dated 5 December 2024 (20 January 2025).
Consideration of the evidence
Unenclosed patio
This is a matter of vehement disagreement between Vrabel and Vidovic and Dalby Constructions: the former claiming the unenclosed patio is included in the Contract works, the latter claiming it is not.
I am satisfied the unenclosed patio forms part of the original and updated development approval addressed to Dalby Constructions as it is delineated and identified in the lower floor plan included in the Form 6 Decision Notice Approval document. In contrast, the pool is expressly excluded from the approval.
The Form 6 is clear however in its General Notes section states that the drawings are to be read in conjunction with all relevant documentation from engineers, certifiers, builders and other consultants. I consider the Contract and Final Inspection Report to be part of such relevant documentation.
I consider that while a particular aspect of the building works may form part of a development approval, the builder and owner are free to separately agree that those works are not included in the overall works to be performed by the builder under the contract. In this case, there are several Contract exclusions because Vrabel and Vidovic intended to perform those works themselves.
The question is whether the unenclosed patio is excluded from or included in the Contract works.
I am satisfied that the unenclosed patio is not listed in the annexure to the Contract headed “Exclusions not applicable to the Specifications & Inclusions”.
Turning to the annexure to the Contract headed “Specifications & Inclusions”, there are three concreting references:
(a)Under the sub-heading “Concrete Slab”: a steel reinforced concrete slab to engineer’s footing and slab design and full termite protection to Australian Standard.
(b)Under the sub-heading “Driveway/Path”: exposed aggregate driveway and concrete path along left hand side of house as per builder’s selection.
(c)Under the sub-heading “Landscaping and other”: slab for shed.
It is not in dispute that the unenclosed patio area required a concrete slab, regardless of the party responsible for doing the work. I consider that, had Dalby Constructions agreed to do the unenclosed patio work, it is reasonable to expect that there would have been an additional reference in the “Specifications & Inclusions” annexure to a slab for the unenclosed patio. There is no such reference.
In the same annexure, listed under sub-heading “Front Porch/Balcony/Patio”, is a reference to “Colourbond roof, fully lined ceiling and tiling to floor”. Given there is an area in the approved lower floor plan delineated and specifically identified as “patio area” and a separate area delineated and specifically identified as “unenclosed patio area”, I am satisfied that the reference here is to the patio and not the unenclosed patio.
The original Final Inspection Report dated 27 July 2022 and signed by Geoff Worrall makes no reference to the unenclosed patio as being not completed or requiring rectification. It was only on 31 August 2022, around three weeks after Vrabel and Vidovic purported to terminate the Contract, that Mr Worrall issued an updated Final Inspection Report to their solicitor that included a handwritten notation, “patio roof to be built”. Mr Worrall did not provide a statement of evidence and was not called to give evidence to explain what patio his notation refers to. I give no weight to the updated Final Inspection Report as evidence that the unenclosed patio was included in the Contract works.
The Munruben Concreting quote for the remaining concreting work to be done refers to the shed, footpath, pergolas courtyard, side of house, front yard and driveway. There is no explanation of the area “pergolas courtyard” relates to. The quote was also provided to Vrabel and Vidovic/their lawyers at their request sometime after the issue of the first formal notice of breach. Mr Samper did not provide a statement of evidence and was not called to give evidence to explain what area pergolas courtyard relates to or the circumstances surrounding the provision of the quote. I give no weight to the Munruben Concreting quote as evidence that the unenclosed patio was included in the Contract works.
The Build Easy Constructions estimate refers to concreting work in the driveway, the pathway to the left side of the house, and the back patio, and excludes the courtyard. I consider it is possible the “rear patio” refers to the unenclosed patio; there is no explanation of the area “courtyard” relates to. The estimate was also provided to Vrabel and Vidovic/their lawyers at their request sometime after the issue of the first formal notice of breach. A representative of Build Easy Constructions did not provide a statement of evidence and was not called to give evidence to explain what area the courtyard and rear patio relate to or the circumstances surrounding the provision of the estimate. I give no weight to the Build Easy Constructions estimate as evidence that the unenclosed patio was included in the Contract works.
Whilst I consider it was a careless oversight not to also list the unenclosed patio in the “Exclusions not applicable to the Specifications & Inclusions” annexure, I am satisfied for the reasons already given that the unenclosed patio was not included in the Contract works and that Dalby Constructions was not responsible for completing that work.
Rectifying retaining wall and moving house forward
I am satisfied that Vrabel and Vidovic acknowledge that there were issues associated with rectifying the retaining wall on the left-hand boundary and moving the house forward at their request that were not caused by but demanded additional work to be undertaken by Dalby Constructions. The invoices raised by Dalby Constructions on 17 September and 28 September 2021 in the amounts of $8,536.00, $7,850.00 and $9,561.75 respectively relate specifically to these issues; each invoice was subsequently paid by Vrabel and Vidovic.
I consider it is reasonable to conclude that this additional work would necessarily and inevitably have resulted in delays to the commencement, performance and completion of the Contract works. However, there is insufficient evidence before the Tribunal to make findings as to the length of the delays and the precise nature and extent of each cause and effect.
Mutual arrangement as to completion of owner’s works and Contract works
I am satisfied it was the intention of Vrabel and Vidovic and understood and consented to by Dalby Constructions that Vrabel and Vidovic would complete the works set out in the “Exclusions not applicable to the Specifications & Inclusions” annexure to the Contract. Given that the issue of who was responsible for completing the unenclosed patio work came into dispute, I leave it aside in my consideration of this mutual arrangement.
There is no provision in the Contract or any other document in evidence for how this mutual arrangement would be managed, including sequencing and coordinating the works under the Contract with the owner’s works and facilitating site access to do so. While I consider the arrangement was mutual, it was, at best, ad hoc and contributed to significant misunderstandings and a strained relationship between Dalby Constructions and Vrabel and Vidovic, as evidenced by the tenor of their numerous email and text exchanges.
I consider it is reasonable to expect that in circumstances where the owner and the builder are completing different works on the same house project, even where they are on good terms and doing their best to cooperate, there will necessarily be compromises, delays and frustrations experienced by both as the usual, varied and numerous vicissitudes associated with building a house are mutually accommodated.
I consider that this is the essential nature of the ad hoc mutual arrangement Dalby Constructions and Vrabel and Vidovic freely came to with one another and they chose not to make any provision in the Contract for how it would be managed.
Given the significant misunderstandings and strained relationship that developed between Dalby Constructions and Vrabel and Vidovic, I consider it is no surprise that Mr Dalby and Mr Vrabel in their evidence gave different versions and interpretations of the circumstances and events throughout construction.
I consider it is reasonable to conclude that the ad hoc mutual arrangement that soured over time would necessarily and inevitably have resulted in delays to the commencement, performance and completion of the Contract works and the owner’s works. However, there is insufficient evidence before the Tribunal to make findings as to the length of the delays and the precise nature and extent of each cause and effect.
I consider that both parties shared the responsibility for the compromises, delays and frustrations that resulted from their ad hoc mutual arrangement.

Date for practical completion

By reference to Items 6 and 7 of the schedule to the Contract and on the basis of the evidence before the Tribunal, I consider the date for practical completion calculated in accordance the terms of the Contract is likely to have been around late November 2021.
I consider the attempt by Dalby Constructions to formally extend the date for practical completion some two weeks after the first breach notice by sending four extension of time claims to Vrabel and Vidovic on 7 June 2022 was a folly. The claims were significantly out of time, did not comply with the requirements of Condition 23 of the General Conditions, and the delay periods were not substantiated. I afford the claim notices no weight.
I consider however that as a result of the combined actions of Dalby Constructions and Vrabel and Vidovic related to and as a consequence of the rectification of the retaining wall, moving the house forward, and the ad hoc mutual arrangement as to the completion of their respective works, both parties by their ongoing conduct acquiesced to the date for practical completion being extended beyond late November 2021 and remaining fluid thereafter whilst Dalby Constructions continued or endeavoured to complete the Contract works. This is supported by Vrabel and Vidovic’s prompt payment of Dalby Constructions’ invoices dated 10 June, 16 July, 17 September, 28 September (by two) and 4 November 2021 and 22 February 2022, each reflecting the progress, albeit delayed, of the Contract works.
I consider that the date for practical completion remained fluid after 22 February 2022 as the issues related to the remaining concreting work (dealt with under the next heading of these reasons) continued, and as the misunderstandings and strained relationship continued between Dalby Constructions and Vrabel and Vidovic related to managing their ad hoc mutual arrangement as to the completion of their respective works.
In their letter dated 9 June 2022, the lawyers for Vrabel and Vidovic appeared to unilaterally declare a new practical completion date in their closing sentence, “Our client’s expectation is that it is reasonable for the works to reach practical completion on or before 29 July 2022”. In their response on 21 June 2022, the lawyers for Dalby Constructions stated that their client “will take all reasonable steps to have the contract works reach Practical Completion by 29 July 2022”, with the qualification that it “will be dependent on the weather and the concreter’s availability”.
I consider the effect of Vrabel and Vidovic’s lawyers unilaterally declaring the practical completion date to be 29 July 2022 was to expressly waive any claim by Vrabel and Vidovic that the date for practical completion was any earlier date, including late November 2021. I do not accept however that the new date for practical completion became 29 July 2022. Dalby Constructions did not consent to this new date: they simply said they would take all reasonable steps to meet that date, but it would depend on the weather and the concreter’s availability. Given that Dalby Constructions had made it clear to Vrabel and Vidovic many times over the preceding months that weather, Covid and supply were impacting concreters’ availability and causing delays, this was an important qualification. I consider that it demonstrated Dalby Constructions’ ongoing willingness to complete the Contract works, and to do so as soon as the concreter was available.
Remaining concreting work
I have already found that Dalby Constructions was not responsible for completing the unenclosed patio work, including any concreting work associated with that area.
I am satisfied the reference to “Concrete Slab” in the “Specifications & Inclusions” annexure to the Contract relates to the main house slab in respect of which Dalby Constructions raised an invoice in the amount of $134,607.75 on 10 June 2021 (‘progress payment for house slab’), which Vrabel and Vidovic promptly paid.
Referencing the “Specifications & Inclusions” annexure to the Contract, the remaining concreting work required to be completed by Dalby Constructions under the Contract was the exposed aggregate driveway and concrete path along the left-hand side of house and the shed slab.
Referencing the text exchanges between Mr Dalby and Concreter Dan, this work was first scheduled to be done on 23 February 2022, then deferred tentatively to 5 March 2022, and then delayed for many months.
Mr Dalby emailed Mr Vrabel on 3 March 2022 advising major delays with concreting due to Covid, supply and weather and inability to provide dates due to work back log. Mr Dalby asked Mr Vrabel to let him know if he would like a credit for the concreting work so they could organise the work themselves. Mr Dalby emailed Mr Vrabel on 16 March 2022 advising again that the concreter had still not confirmed any dates.
Mr Dalby emailed Mr Vrabel on 18 April 2022 advising that he was continuing to communicate with the concreter, but he still didn’t have a date, and that he had tried to source other concreters, but the industry was too busy and impacted by weather, Covid and supplies. Mr Dalby again offered a credit for the concreting as an option that would finalise the project and allow the owners to move in. Mr Dalby stated that if Mr Vrabel did not want that option, then they would have to wait for a date to be provided by the concreter.
Mr Dalby emailed Mr Vrabel on 16 May 2022 advising no progress on the concreter due to weather conditions and urging the credit option.
As set out in these reasons, legal correspondence commenced between the lawyers for Vrabel and Vidovic and the lawyers for Dalby Constructions on 25 May 2022 and continued through to 17 August 2022. Among a number of other issues, the issue of the remaining concreting work was the subject of contention and discussion in this correspondence exchange.
Mr Dalby texted Concreter Dan on 29 June 2022 looking for another date to do the work; Concreter Dan advised that the weather kept pushing him back and he would let him know at the end of the following week, but it was a minimum of six weeks.
Mr Dalby texted Concreter Dan on 22 July 2022 asking again about any dates for the concreting work. Concreter Dan advised possibly end of August and second week of September 2022, weather permitting.
On 5 September 2022, Concreter Dan texted Mr Dalby seeking confirmation to proceed with the concreting work on the following Friday and Monday. Mr Dalby responded early the following day that the owners had moved in, and the job would not be proceeding.
In the course of the legal correspondence, between the first breach notice and the second breach notice, the lawyers for Vrabel and Vidovic provided names of alternative concreters, along with the quote/estimate for concreting work (previously described in these reasons) from Munruben Concreting and Build Easy Constructions. I consider that this was intended to confect the impression that Dalby Constructions was not taking all steps necessary to fulfil their concreting obligations under the Contract, and that, when Dalby Constructions declined to contact the alternative concreters or those who provided the quotes, they were refusing to fulfil their concreting obligations. I do not accept this impression.
Mr Dalby gave evidence to the effect that he was not comfortable dealing with concreters that he did not know and trust, he was concerned about what he believed to be an excessively high quote from Munruben Concreting and Mr Samper’s comment in the quote that “We don’t know the builder and don’t wish to know him”, and that Build Easy Constructions were not concreters. I accept these were reasonably held concerns.
Neither Mr Samper of Munruben Concreting nor a representative of Build Easy Constructions provided a statement of evidence or was called to give evidence to explain the circumstances surrounding the provision of their quote/estimate, the details of the concreting work quoted on, and their availability to do the work. I give no weight to either document as evidence in support of the claim that Dalby Constructions refused to fulfil their concreting obligations.
I consider that Mr Dalby’s repeated offers of a credit for the concreting work were a genuine attempt to find a practical solution to a problem that was beyond his control, being the delays in the concreting industry caused by Covid, supply and weather. Mr Vrabel did not respond to Mr Dalby’s credit offers from March to May 2022, nor did he seek out alternative concreters during that time.
I am satisfied on the evidence before the Tribunal that Dalby Constructions, as the party responsible for completing the remaining concreting work under the Contract, acted reasonably and prudently in insisting on dealing only with concreters they knew and trusted, continued their attempts over several months from February 2022 to find suitable dates to book Concreter Dan to do the concreting work, and throughout that time kept Vrabel and Vidovic updated, directly and through their lawyers, on the ongoing delays due to Covid, supply and weather and their attempts to book the concreting work. I am further satisfied that, had Vrabel and Vidovic not terminated the Contract, Dalby Constructions intended to book Concreter Dan to do the concreting work at his next availability, which, on the evidence before the Tribunal, was at the end of the second week and start of the third week of September 2022.
Breach notices and termination
The first breach notice was dated 25 May 2022. Following that, the lawyers corresponded about a range of Contract matters in a manner that demonstrated an ongoing intention by both parties to resolve their differences and complete the Contract. The lawyers even went so far as to express appreciation on their client’s behalf for the other’s efforts.
Notwithstanding that the first breach notice gave Dalby Constructions 10 working days to remedy the breach, failing which Vrabel and Vidovic intended to terminate the Contract, there was no such termination in that timeframe. Rather, the second breach notice was dated 11 August 2025, in different terms, claiming breach and repudiation and electing to terminate, all in the one notice.
I consider that the effect of the second breach notice was to supersede the first breach notice.
Did Vrabel and Vidovic validly terminate the Contract?
As set out in these reasons, the Contract provides for a right (and mechanism) to terminate where a party is in substantial breach.
Putting aside the question of whether the second breach notice technically complied with the requirements of the Contract, I consider the alleged breaches relied upon by Vrabel and Vidovic to claim a substantial breach of the Contract by Dalby Constructions and right to terminate as follows:
(a)     Unreasonably failed to progress the works diligently in that it has not commenced or taken reasonable steps to commence and complete the external concreting works.
I do not accept this alleged breach for the reasons set out under the heading, Remaining concreting work.
(b)     Failed to, or refuses to undertake the construction of the external back veranda, despite the veranda being shown on the plans and included in the specifications.
I do not accept this alleged breach for the reasons set out under the heading, Unenclosed patio.
(c)     Unreasonably refused access to the site by our clients or their subcontractors to progress works that were our clients’ obligation to have completed.
I do not accept this alleged breach for the reasons set out under the heading, Mutual arrangement as to completion of owner’s works and Contract works.
(d)     Unreasonably failed to bring the works to practical completion by the date for practical completion, as extended, or at all.
I do not accept this alleged breach for the reasons set out under the heading, Date for practical completion.

The second breach notice does not reference a specific Contract provision in claiming the substantial breach by Dalby Constructions, however it appears that the breaches relied upon most closely align with the wording of Condition 26.4(d): “unreasonably failing to perform the work diligently or unreasonably delaying, suspending or failing to maintain reasonable progress”. I am satisfied on the evidence before the Tribunal that Dalby Constructions did not commit a substantial breach of the Contract for the reasons already referenced.
Repudiation turns upon objective acts and omissions, not on uncommunicated intention, and it is sufficient that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or a fundamental obligation under it.[1]
[1]Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 658.
I consider the alleged repudiation relied upon by Vrabel and Vidovic to terminate as follows:
Further, our clients consider that Dalby’s actions in refusing reasonable requests for access, failing to commence and complete the external concreting, refusing to undertake the construction of the veranda and generally causing delay in the completion of the works the subject of the Contract (most notably by failing to progress any works in the last 6 weeks) is conduct which clearly evinces Dalby’s intention to no longer be bound by the terms of the Contract and equates to a repudiation of the contract.
Our clients accept Dalby’s repudiatory conduct as outlined in the paragraph above and hereby elect to terminate the Contract effective immediately.
I do not accept the characterisation of the actions of Dalby Constructions as repudiatory conduct for the reasons set out under the headings, Mutual arrangement as to completion of owner’s works and Contract works, Unenclosed patio, Remaining concreting work, and Date for practical completion. I am satisfied on the evidence before the Tribunal that Dalby Constructions at no time objectively demonstrated an intention not to be bound by the Contract or a disavowal either of the Contract as a whole or a fundamental obligation under it.
I am satisfied that Vrabel and Vidovic had no right to terminate the Contract on the grounds of the claimed breaches or claimed repudiation by Dalby Constructions. I am therefore satisfied that Vrabel and Vidovic did not validly terminate the Contract.
Owner Builder Permit
In their submissions, the lawyers for Dalby Constructions submit (in the alternative to their submission that the Contract was not validly terminated) that the incomplete work the subject of Vrabel and Vidovic’s claim under the statutory insurance scheme was excluded from cover by operation of section 67WB(1)(b) of the QBCC Act, which provides that building work carried out by a building contractor for a person who is a holder of an owner-builder permit covering the work is not eligible for assistance from the statutory insurance scheme.
I am satisfied that the Tribunal’s jurisdiction in this application is limited to a review of the Commission’s decision that the Contract was validly terminated (having the consequence of allowing a claim for non-completion under the statutory insurance scheme), and does not extend to a review of any decision by the Commission regarding the eligibility of Vrabel and Vidovic to assistance from the statutory insurance scheme related to their status as the holder of an owner-builder permit.