Fergbilt Pty Ltd v Burnett - [2014] QCAT 517

CITATION:

Fergbilt Pty Ltd v Burnett & Anor [2014] QCAT 517

PARTIES:	Fergbilt Pty Ltd (Applicant)
v
Greg Burnett Jackie Heath (Respondents)

APPLICATION NUMBER:

BDL048-14

MATTER TYPE:

Building matters

HEARING DATE:

23 June 2014

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

21 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Greg Burnett and Jackie Heath must pay to Fergbilt Pty Ltd the sum of $11,319 by 4:00pm on 19 November 2014.

CATCHWORDS:

BUILDING DISPUTE – VARIATIONS – whether variations should be approved under s 84 of Domestic Building Contracts Act 2000 – whether exceptional circumstances – whether builder will suffer unreasonable hardship by strict operation of requirements for variations – whether not unfair to the homeowners for builder to recover – where work has been done – where accepted work instructed by homeowner

Domestic Building Contracts Act 2000 (Qld), s 79, s 80, s 82, s 83, s 84,

Black, G v Toowoomba Resort Pty Ltd [2007] QCCTB 122
Brown & Anor v Noosa Constructions Pty Ltd [2012] QCATA 194

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Craig Ferguson, director, Fergbilt Pty Ltd, represented Fergbilt Pty Ltd

RESPONDENT:

Mr Greg Burnett represented himself and Ms Heath

REASONS FOR DECISION

Background to the dispute

This proceeding concerns a relatively small claim for variations in a building dispute totalling a little over $12,000. However, it generated voluminous material, although some of the individual variation claims are for as little as $40.
On 24 July 2013, Fergbilt Pty Ltd entered into a contract for domestic building work with Mr Greg Burnett and Ms Jackie Heath for works at their property at Farrington Street, Alderley. It involved renovation of an existing home. The contract price for the works was $325,865. In total $328,373 has been paid under the contract, including some amount for variations. There was a credit of $4,230 (because on the day to the contract was signed the homeowners changed their minds about the linings for the downstairs living areas and this change reduced the cost by $4,230). Accordingly, an amount of $6,738 has been paid, for variations.
In its application, Fergbilt Pty Ltd claimed unpaid variations in the amount of $12,814. This represents the difference between the contract price of $325,865 and the total of the claimed variations, less the credit of $4,230. It also claims the fee for filing its application in QCAT and interest in accordance with the contract.
At the hearing, Fergbilt clarified that an amount of $110 for a letterbox is no longer in dispute. It reduced its claim by that amount to $12,704, plus the application fee and interest.
The homeowners acknowledge that there were some variations. However, in essence, they say that they have paid for agreed variations. In respect of the issues in the dispute, they say that they are entitled to offset an amount paid by them as a variation for extra concreting and tiling at the rear of their home. They now say that this was included in the contract…

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.

Keep reading for free

Create a free CaseChat account to read Fergbilt Pty Ltd v Burnett and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCAT 517
Decision Date: 21 October 2014

CaseChat Overview and Summary

Fergbilt Pty Ltd, a building contractor, sought payment from Greg Burnett and Jackie Heath for work completed under a building contract. The homeowners disputed the claim, arguing that the work was not authorised under the contract and that the builder had acted outside its authority. The dispute was heard in the Magistrates Court of Victoria. The central legal issue was whether the variations in the building work were approved under section 84 of the Domestic Building Contracts Act 2000. Specifically, the court had to determine if there were exceptional circumstances that justified approving the variations, if the builder would suffer unreasonable hardship by strictly enforcing the variation requirements, and if it would be unfair to the homeowners for the builder to recover for the work done. The court found that there were no exceptional circumstances that would warrant approving the variations, and that it would not be unfair to the homeowners for the builder to recover for the work done, which had been instructed by the homeowners. Given the findings, the court ordered Greg Burnett and Jackie Heath to pay Fergbilt Pty Ltd the sum of $11,319 by 4:00pm on 19 November 2014.

Orders

Orders of the court

1. Greg Burnett and Jackie Heath must pay to Fergbilt Pty Ltd the sum of $11,319 by 4:00pm on 19 November 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.