| CITATION: | Dyer v Spence [2017] QCAT 211 |
| PARTIES: | Rowan John Dyer (Applicant) |
| v | |
| Robyn Spence (Respondent) |
| APPLICATION NUMBER: | BDL285-14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 9 June and 8 September 2016 Written submissions filed 22 September 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 19 June 2017 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Rowan John Dyer is to pay Robyn Spence the sum of $138,826.18 by 4:00pm on 31 July 2017. 2. Rowan John Dyer is to pay Robyn Spence interest at the rate of 10% per annum on the sum of $138,826.18 on and from 1 August 2017 until and including the day the sum is paid. 3. Any application for costs is to be made by filing in the Tribunal one (1) copy and providing to the other party one (1) copy of any submissions and evidence as to costs by 4:00pm 21 July 2017. 4. If an application as to costs is made in accordance with order 3 then: a) the other party is to file in the Tribunal one (1) copy and provide to the party making the application for costs one (1) copy of any submissions and evidence as to costs in response by 4:00pm 4 August 2017. b) the application as to costs shall be determined on the papers and without an oral hearing unless a party requests an oral hearing, not before 4:00pm 4 August 2017. 5. If an application as to costs is not made in accordance with order 3 then there shall be no order as to costs in this proceeding. 6. The Registry is to return Rowan John Dyer’s original diary to him after the appeal period expires. |
| CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – Domestic Building Dispute – builder’s failure to comply with statutory requirements as to variations – claim for refund of all moneys paid – voluntary payments – whether builder prohibited from retaining sums paid – whether builder or owner entitled to terminate – where defective work – reasonable costs of rectification – whether owner entitled to liquidated damages Domestic Building Contracts Act 2000 (Qld), Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119 |
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- AGLC
- Dyer v Spence [2017] QCAT 211
- Case
- [2017] QCAT 211
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the builder was prohibited from retaining sums paid to him, whether the homeowner was entitled to terminate the contract, and if the homeowner was entitled to the reasonable costs of rectification and liquidated damages. The court had to determine the measure of damages and whether the homeowner's claim for a refund of all moneys paid was appropriate, considering the nature of the work and the builder's compliance with statutory requirements.
The court found that the builder had not complied with statutory requirements regarding variations and that the work was defective. The court held that the builder was not prohibited from retaining sums paid to him, as the homeowner had not exercised any right to terminate the contract. However, the court also found that the homeowner was entitled to the reasonable costs of rectification. The court further held that the homeowner was not entitled to claim liquidated damages, as the contract did not provide for such a remedy. The court ordered the builder to pay the homeowner a sum of money, along with interest, and made orders regarding the costs and the return of the builder's diary.
Orders
Orders of the court
1. Rowan John Dyer is to pay Robyn Spence the sum of $138,826.18 by 4:00pm on 31 July 2017.
2. Rowan John Dyer is to pay Robyn Spence interest at the rate of 10% per annum on the sum of $138,826.18 on and from 1 August 2017 until and including the day the sum is paid.
3. Any application for costs is to be made by filing in the Tribunal one (1) copy and providing to the other party one (1) copy of any submissions and evidence as to costs by 4:00pm 21 July 2017.
4. If an application as to costs is made in accordance with order 3 then:
a) the other party is to file in the Tribunal one (1) copy and provide to the party making the application for costs one (1) copy of any submissions and evidence as to costs in response by 4:00pm 4 August 2017.
b) the application as to costs shall be determined on the papers and without an oral hearing unless a party requests an oral hearing, not before 4:00pm 4 August 2017.
5. If an application as to costs is not made in accordance with order 3 then there shall be no order as to costs in this proceeding.
6. The Registry is to return Rowan John Dyer’s original diary to him after the appeal period expires.
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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