David John Ward v Tailor Made Constructions Pty Ltd - [2023] QCAT 35

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

David John Ward & Anor v Tailor Made Constructions Pty Ltd [2023] QCAT 35

PARTIES:

David John Ward
nicole sky ward

(applicant)

tailor made constructions pty ltd

(respondent)

APPLICATION NO/S:

BDL188-18

MATTER TYPE:

Building matters

DELIVERED ON:

27 January 2023

HEARING DATE:

8 March 2022

HEARD AT:

Brisbane

DECISION OF:

A/ Senior Member Fitzpatrick

ORDERS:

Tailor Made Constructions Pty Ltd ACN 135056914 pay the sum of $21,102.75 to David John Ward and Nicole Sky Ward within 21 days from the date of this decision.

CATCHWORDS:

CONTRACTS – PARTICULAR PARTIES – PRINCIPLE AND AGENT – CREATION OF RELATION OF AGENCY – FORMATION AND PROOF OF AGENCY – AGENCY CREATED BY OTHER MEANS – IMPLICATION OF AGENCY FROM PARTICULAR CIRCUMSTANCES – entering contract through authorised agents – relationship between principle and agent is constituted retrospectively

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – breach of contract – damages for breach of contract – relevant loss and contemplation of the parties – entitlement to terminate contract – entitlement to liquidated damages if contract terminated – calculating liquidated damages – costs associated with terminating a contract – naturally arising losses caused by breach – time spent is not a sufficient condition to determine loss – award for lost profit due to delay in contract competition – no interest on liquidated damages because it is recoverable as a debt – reasonably reliance on a representation and estoppel – fixed cost contracts and charges not part of the contract price

Acts Interpretation Act 1954 (Qld), s20(2)(b)

Domestic Building Contracts Act 2000 (Qld), s30.
Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s62
Sustainable Planning Act 2009 (Qld), s648F(2)

Planning Act 2016 (Qld), s144

Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1

Hadley v Baxendale (1854) 9 Exch 341
Robinson v Harman (1848) 1 Exch 850
Trevorrow v Council of the City of the Gold Coast [2018] QCA 19
Trevorrow v Council of the City of the Gold Coast [2017] QSC 12
Triple Point Technology, Inc v PTT Public company Ltd [2021] UKSC 29

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

At the hearing of this matter the applicants Mr and Mrs Ward appeared and gave evidence. Mr Andrew Williams, Director of the respondent Tailor Made Pty Ltd ACN 135056914 (Tailor Made), appeared and gave evidence on behalf of the respondent.
Mr and Mrs Ward seek damages for breach of contract from Tailor Made. After being de-registered Tailor Made was reinstated to the register by ASIC on 7 August 2019 upon the application of Mr and Mrs Ward.
Tailor Made confirmed that it was not proceeding with any counter-application.
The background to this matter is that Mr and Mrs Ward purchased land on which to construct a duplex to be used for investments purposes. The land…

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: [2023] QCAT 35
Decision Date

CaseChat Overview and Summary

David John Ward and Nicole Sky Ward (the applicants) filed an application against Tailor Made Constructions Pty Ltd (the respondent) seeking damages for breach of contract. The applicants had entered into a contract for the construction of a duplex on land in Toowoomba. The respondent had failed to complete the work in time and the work was defective. The applicants terminated the contract and sought damages for the delay and defects. The respondent had its builder's licence cancelled and was disqualified from holding a company licence. The applicants had already claimed some of their losses through the statutory insurance scheme. The Tribunal held that the respondent was liable for breach of contract and awarded damages to the applicants. The respondent was ordered to pay the applicants $21,102.75 within 21 days of the decision.

Orders