Dinamick Developments Pty Ltd v Niksic

[2016] QCAT 406

CITATION:

Dinamick Developments Pty Ltd v Niksic [2016] QCAT 406

PARTIES:

Dinamick Developments Pty Ltd
(Applicant)

v

Milan Niksic

(Respondent)

APPLICATION NUMBER:

BDL180-15

MATTER TYPE:

Building matters

HEARING DATE:

19 August 2016

HEARD AT:

Southport

DECISION OF:

Member Steven Holzberger

DELIVERED ON:

21 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The application is dismissed.

CATCHWORDS:

BUILDING DISPUTE - Domestic Building Dispute - Cost Plus Contract - effect of s55 Domestic Building Contracts Act 2000 (Qld) -Enforceability of Contract.

Domestic Building Contracts Act 2000 (Qld), s 55

A.L. Builders Pty Ltd v Fatseas [2015] QCAT 166

APPEARANCES:

APPLICANT:

Michael Hughes

RESPONDENT:

Milan Niksic

REASONS FOR DECISION

1. Mr Niksic wished to have a number of alterations made to his existing dwelling, most importantly a granny flat for his father who was elderly and in ill health. In those circumstances he was anxious to have the granny flat completed and his father relocated as soon as possible.

2. He had had plans and engineering plans drawn but had been unable to obtain an acceptable quote.

3. Mr Hughes was a registered builder and a director of Dinamick Developments Pty Ltd (‘Dinamick’). Like Mr Niksic, he was also a member of the Yeronga Football Club. Both had sons who played there and both had strong connection to the club.

4. At the club, Mr Hughes was approached by a mutual acquaintance and club member, Boris Dragicevic, and told of Mr Niksic’s problem. He was asked whether he was interested in taking the job.

5. Mr Hughes was given copies of the plans. He spoke to Mr Niksic by telephone and was asked to provide a price for the job as quickly as possible as Mr Niksic was going to Germany in August.

6. Discussions proceeded on the understanding that Mr Dragicevic would act as Mr Hughes’ labourer as well as undertaking some of the works, in particular the tiling. Mr Niksic was to pay Mr Dragicevic , the certifier and the engineer directly.

7. An initial quotation of $1,000.00 per square metre for the plan as drawn including a car port was given. The car port was subsequently removed from the works and an estimate of $40,000.00 was given for the 40sqm granny flat.

8. On a subsequent site visit, Mr Hughes determined that the proposed works would require a change to the roof plan which was not contemplated in the plans provided to him. As a result, Mr Hughes changed his estimate to $45,000.00 to cover the additional costs.

9. Mr Hughes prepared a contract in the form of the Master Builders Cost Plus contract. A copy of the contract was identified by the parties and admitted as Exhibit 1 in these proceedings.

10. The contract was executed by both parties on Saturday 27 June 2015. Mr Hughes had already commenced work on the project on 23 June 2015.

11. Part D of the contract appendix specified an estimated total cost of the works at $45,000.00 payable by instalments at various stages of the works, and relevantly to these proceedings, a deposit…