Dyer v Spence

Case [2017] QCAT 211


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),
s 18, s 84
Queensland Building and Construction Commission Act 1991 (Qld), s 42
Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 62
Queensland Building and Construction Commission Regulation 2003 (Qld), s 34B
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 92, s 93

Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119
Bellgrove v Eldridge (1954) 90 CLR 613
Chelbrooke Homes Pty Ltd v Russell & Anor [2011] QCAT 278
Coshott v Fewings Joinery Pty Ltd [1996] NSWSC 270
Mt Cotton Constructions Pty Ltd v Greer [2017] QCAT 11
QLine Interiors Pty Ltd v Jezer Construction Group Pty Ltd & Ors [2002] QSC 088
Ruxley Electronics & Constructions Ltd v Forsyth [1996]  AC 344
Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118

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AGLC
Dyer v Spence [2017] QCAT 211
Case
[2017] QCAT 211
Decision Date

CaseChat Overview and Summary

The matter of Dyer v Spence involved a dispute between the builder, Rowan John Dyer, and the homeowner, Robyn Spence, over the performance of building works. The dispute was brought before the New South Wales Civil and Administrative Tribunal (NCAT). The homeowner sought a refund of all moneys paid to the builder, alleging that the builder failed to comply with statutory requirements regarding variations and that the work was defective. The builder, in turn, argued that he was not prohibited from retaining sums paid and that the homeowner was not entitled to terminate the contract or claim for the reasonable costs of rectification or liquidated damages.

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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