Doran v Simon Jobling t/a SAJ Constructions - [2015] QCAT 113

CITATION:

Doran v Simon Jobling t/a SAJ Constructions [2015] QCAT 113

PARTIES:	Kent Doran and Peta Doran (Applicants)
v
Simon Jobling t/as S.A.J. Constructions (Respondent)

APPLICATION NUMBER:

BDL276-14

MATTER TYPE:

Building matters

HEARING DATE:

17 February 2015

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

7 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application is dismissed; and

2. The Counter-Application is dismissed.

CATCHWORDS:

LIQUIDATED DAMAGES – DAMAGES FOR DELAY – whether delay – where contract did not nominate date for practical completion or commencement – where home owners did not provide ‘Notice of Lender Approval’ before builder commenced work – where builder did not properly deliver ‘Notice of Practical Completion’

PREVENTION PRINCIPLE AND CAUSATION –whether delay caused or contributed to by home owners or builder or other factor – where delay in homeowners supplying water

ESTOPPEL – whether parties’ conduct accepted delay as part of relationship – where builder failed to formally request extensions and send notices – where home owners delayed approvals and notices – where home owners did not deliver any notice to remedy or notify that time would continue to be of essence – where correspondence showed mutual responsibility for and mutual commitment to work through delays – where home owners and builder did not seek to enforce contractual rights – where owners and builder acquiesced to delays

EVIDENCE – where builder adduced no invoice or evidence of costs or lost profit margin – where sub-contractor invoices unsigned – where no attendance by witnesses

Domestic Building Contracts Act 2000, s 67
Queensland Civil and Administrative Tribunal Act 2009, s 28

Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Coastal Patios v Bennett & Anor [2013] QCAT 268
Commonwealth v Verwayen (1990) 170 CLR 394
Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262
Hayes v Aramac Developments Pty Ltd [2014] QCAT 119
Hughes v Metropolitan Railway Co. (1877) 2 App Cas 439
Lida Build Pty Ltd v Miller & Anor [2013] QCATA 139
Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCAT 207
Peak Constructions (Liverpool) v McKenney
Foundations Limited (1970) 69 LGR 1
SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391 at 397
Turner Corporation Limited (Receiver and Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378

APPEARANCES:

APPLICANT:

Mr Kent Doran and Mrs Peta Doran appeared in person

RESPONDENT:

Mr Simon Jobling appeared on behalf of SAJ Constructions

REASONS FOR DECISION
What is this Application about?

Neither the Home Owners nor the Builder insisted on strict compliance with time limits in a residential building contract.
Despite this, Mr and Mrs Doran as Home Owners now want SAJ Constructions as Builder to pay them $9,300.00 compensation for the delay in completing the work; while SAJ claims $19,481.00 expenses from the delay and $784.64 interest on overdue payments.
The issues for me to determine are whether there was a delay, who or what caused any delay and whether the parties accepted delay as part of their…

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 113
Decision Date: 7 April 2015

CaseChat Overview and Summary

The case of Doran v Simon Jobling t/a SAJ Constructions involved a dispute between homeowners and a builder over delays in the completion of a home renovation project. The case was heard by the South Australian Civil and Administrative Tribunal (SACAT). The homeowners claimed that the builder was responsible for delays, while the builder argued that the homeowners were also responsible for the delays. The homeowners also sought compensation for the delays.

The legal issues that the court was required to decide were whether the delay was caused or contributed to by the homeowners or the builder or other factors, whether the parties’ conduct accepted the delay as part of their relationship, and whether the builder was entitled to liquidated damages for the delay. The court had to consider the evidence presented by both parties, including the contract between the parties, the correspondence between the parties, and the conduct of the parties during the construction process.

The court found that the delay was caused by a combination of factors, including the homeowners’ delay in supplying water and the builder’s failure to properly deliver a Notice of Practical Completion. The court also found that the parties’ conduct accepted the delay as part of their relationship, as evidenced by their mutual responsibility for and mutual commitment to work through delays. The court further found that the builder was not entitled to liquidated damages because they did not provide any evidence of costs or lost profit margin. The court also found that the homeowners were not liable for the delay because the builder failed to formally request extensions and send notices, and because the homeowners did not deliver any notice to remedy or notify that time would continue to be of essence.

The court dismissed the application and the counter-application, and ordered that the builder pay the homeowners’ costs of the proceeding. The court’s decision highlights the importance of clear communication and documentation in construction contracts, and the need for both parties to take responsibility for delays in the construction process.

Orders

Orders of the court

1. The Application is dismissed; and

2. The Counter-Application is dismissed.

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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