DC Mills Developments v Fitch - [2015] QCAT 114

CITATION:

DC Mills Developments v Fitch [2015] QCAT 114

PARTIES:	David Cameron Mills t/as DC Mills Developments (Applicant)
v
Peter Fitch and Andrea Fitch (Respondent)

APPLICATION NUMBER:

BDL052-13

MATTER TYPE:

Building matters

HEARING DATES:

24, 25 and 26 February 2014 and 23 May 2014

HEARD AT:

Brisbane

DECISION OF:

Member J Allen

DELIVERED ON:	24 March 2015
AMENDED ON:	2 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. David Cameron Mills t/as DC Mills Developments must pay the amount of ~~$75,469.24~~ $75,569.24 to Peter Fitch and Andrea Fitch within 21 days of the date of this order.

2. David Cameron Mills t/as DC Mills Developments must provide all Form 15 and 16s he currently holds or has under his control in respect of the construction of the dwelling at 2 Clarance Street, Wakerley to Peter Fitch and Andrea Fitch within 21 days of the date of this order.

3. Interest on any amount unpaid under order 1 will be calculated at the rate of 10% per annum and payable as from the due date of payment and payable until the whole amount is paid.

4. Each party may make submissions in regard to costs within 14 days of the date of this order.

5. The Tribunal will consider any application for costs on the papers.

CATCHWORDS:

BUILDING DISPUTE – where parties a cost plus contract – whether cost plus contract enforceable by builder – where construction of new dwelling - whether variations to be taken into consideration when calculating entitlement where unenforceable cost plus contract – factors to be taken into account when making award under unenforceable cost plus contract – where labour hourly rate under contract different to rate charged to builder - factors to consider where claim for undocumented variations.

Domestic Building Contracts Act 2000 (Qld) ss 7, 8, 9, 16, 55, 79-84, Schedule 2 Dictionary
Queensland Building and Construction Commission Act 1991 (Qld) ss 77(2)(c)
Queensland Building and Construction Commission Regulations s 34B

Allaro Homes Cairns Pty Ltd v O’Reilly [2012] QCA 286
Folkes v L.V. Lavis, J.&N. [2005] QCCTB 2(10 February 2005)
Gemini Nominees Pty Ltd v Queensland Property Partners Pty Ltd ATF The Keith Batt Family Trust [2007] QSC 20
Pavey & Matthew Pty ltd v Paul (1987) 162 CLR 180

APPEARANCES:

APPLICANT:

David Cameron Mills

RESPONDENT:

Peter Fitch and Andrea Fitch

REPRESENTATIVES:

APPLICANT:

Mr Fraser of Counsel instructed by Berrigan Doube Lawyers

RESPONDENT:

Ms McNeil of Counsel instructed by Colville Johnstone Lawyers

REASONS FOR DECISION

Introduction

Mr Mills is a builder who, in 2011 and 2012 built a house for Mr and Mrs Fitch at 2 Clarance Street, Wakerley. The Fitches contacted him in early 2011 when they were looking for the land to build their house on as they had had previous dealings with Mr Mills. He had been one of the directors of the building company, which renovated their previous residence. Mr Mills made it clear to the Fitches that on this occasion he would be undertaking this work under his own…

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: [2015] QCAT 114
Decision Date: 24 March 2015

CaseChat Overview and Summary

The case of DC Mills Developments v Fitch involved a dispute between a builder, DC Mills Developments, and a homeowner, Peter Fitch, concerning the construction of a new dwelling. The homeowner sought relief under the Home Building Act, alleging that the builder had failed to complete the construction within a reasonable time and had not provided a final account as required. The builder, on the other hand, argued that the contract was cost-plus and thus unenforceable, and that any variations made during the construction should be taken into account when calculating the entitlement.

The primary legal issues the court had to decide were whether the cost-plus contract was enforceable and, if not, what factors should be considered when making an award under such an unenforceable contract. Specifically, the court needed to determine if the variations made during the construction should be taken into account when calculating the entitlement, and if so, how they should be valued. The court also had to consider the appropriate hourly rate for labour when making an award under the unenforceable contract, as well as the method of calculating interest on any unpaid amounts.

The court held that the cost-plus contract was unenforceable, and that the builder was not entitled to any payment for variations that were not properly documented. The court found that the builder had charged a higher hourly rate for labour than the rate specified in the contract, and that this difference should be taken into account when making an award. The court also held that interest should be calculated at the rate of 10% per annum, payable from the due date of payment until the whole amount was paid. The court made an order for the builder to pay the homeowner the amount of $75,569.24 within 21 days, and to provide all relevant forms within the same timeframe. The court also ordered that interest be calculated at the rate of 10% per annum on any unpaid amounts. The parties were given the opportunity to make submissions in regard to costs within 14 days of the date of the order.

Orders

Orders of the court

1. David Cameron Mills t/as DC Mills Developments must pay the amount of $75,469.24 $75,569.24 to Peter Fitch and Andrea Fitch within 21 days of the date of this order.

2. David Cameron Mills t/as DC Mills Developments must provide all Form 15 and 16s he currently holds or has under his control in respect of the construction of the dwelling at 2 Clarance Street, Wakerley to Peter Fitch and Andrea Fitch within 21 days of the date of this order.

3. Interest on any amount unpaid under order 1 will be calculated at the rate of 10% per annum and payable as from the due date of payment and payable until the whole amount is paid.

4. Each party may make submissions in regard to costs within 14 days of the date of this order.

5. The Tribunal will consider any application for costs on the papers.

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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