Dunne v Dwyer Quality Homes

CITATION:

Dunne v Dwyer Quality Homes [2017] QCAT 262

PARTIES:

Bruce Dunne
Heidi Dunne
(Applicants)

v

Dwyer Quality Homes

(Respondent)

APPLICATION NUMBER:

BDL105-16

MATTER TYPE:

Building matters

HEARING DATE:

22 and 23 June 2017

HEARD AT:

Maroochydore

DECISION OF:

Member Howe

DELIVERED ON:

2 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The respondent builder pay to the applicants the sum of $71,217.12 within 30 days of the date of order.

2.    The applicants file and serve on the respondent any submissions as to costs together with supporting evidence by no later than 4pm on 11 August 2017 and the respondent file and serve on the applicants any submissions as to costs together with supporting evidence by no later than 4pm on 25 August 2017.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SETTLEMENT OF DISPUTES – where statutory warranty had expired – termite infestation and damage – where contract contained extended 30 year contractual warranty – where warranty described as guarantee – where contract contained warranty as to structural integrity – whether damages should be awarded for breach of warranty

Building Act 1975 (Qld), s 30(1)(g)
Domestic Building Contracts Act 2000 (Qld), s 51
Queensland Building and Construction Commission Act 1991 (Qld), s 72A(4)
Queensland Building Services Authority Act 1991 (Qld), s 72(8)

Oscar Chess Ltd v Williams [1957] 1 All ER 325
Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36
Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd [2016] NSWSC 50

APPEARANCES:

APPLICANT:

Bruce Dunne and Heidi Dunne represented themselves

RESPONDENT:

Wayne Dwyer represented the respondent

REASONS FOR DECISION

Background

1. Mr and Mrs Dunne owned land at Indian Creek at the Sunshine Coast. The respondent builder was engaged to build them a house on the land. The owners through Mrs Dunne signed a Master Builders residential building contract with the builder in November 2006. The price was $256,163 and construction was finished around December 2007.

2. The owners realised they had a problem with termites in about 2012. Termites were found under a kitchen bench. They had entered there at the pipe penetration of the slab. Then termites were found in about December 2013 in the laundry. Again the termites entered there at pipe penetrations. 

3. There was a third breach that followed near the bathroom. It appeared to be caused by a breach of the external perimeter barrier rather than pipe penetrations through the slab. The builder rectified the problems or so it was thought.

4. When a fourth breach at the western perimeter at a bedroom was detected in November 2014 the owners complained to the Queensland Building and Construction Commission (QBCC) (then Queensland Building Services Authority). The owners had made previous complaints to the QBCC but given the builder’s voluntary rectification work no directions to rectify defective building work were necessary. With the fourth breach extensive invasive investigations were conducted by contractors engaged by QBCC. During the currency of the investigations however the time…