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Freedom Homes Pty Ltd v Botros

Freedom Homes Pty Ltd v Botros

Case [1999] QCA 150 7 May 1999

Breach of Contract

Remedies for Breach of Contract

Repudiation & Termination

Contract Formation

Specific Performance

Civil Litigation & Procedure

Contract Law

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IN THE COURT OF APPEAL 99.150
SUPREME COURT OF QUEENSLAND
Appeal No 7827 of 1997
Brisbane
[Botros v Freedom Homes P/L]
BETWEEN
HELEN BOTROS and MARY BOTROS

(Defendants) Appellants

AND
FREEDOM HOMES PTY LTD

(Plaintiff) Respondent
McPherson JA
Thomas JA
Moynihan J

Judgment delivered 7 May 1999.
Separate reasons for judgment of each member of the Court; each concurring as to the order made.
APPEAL DISMISSED WITH COSTS.
CATCHWORDS: BUILDING CONTRACT - Conduct amounting to repudiation - Recover damages for breach - Failure to comply with s58 of statute - Whether District Court judge erred in refusing leave to appeal against orders of Queensland Building Tribunal - Parties to the contract.
Bellgrove v Eldridge (1954) 90 CLR 613
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, 433
Gaffney v Ryan [1995] 1 Qd R 19, 23
Graystone Pty Ltd [1990] 1 Qd R 157, 162.
Minion v Whywait Pty Ltd v Davison [1977] 1 Qd R 225, 233.
Shepherd v. Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 377-

378
Yango Pastoral Company Pty Limited v First Chicago Australia Limited
(1978) 139 CLR 410
Zullo Enterprises Pty Ltd v Sutton (CA no 8045/1998; 15 Dec 1998)
Queensland Building Services Authority Act 1991

Counsel: Joseph Botros (as agent) on behalf of the appellants
Mr J Allen for the respondent
Solicitors: Joseph Botros on behalf of the appellants
Wight Shera for the respondent.
Hearing Date: 20April1999
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 7827 of 1997
Brisbane

Before McPherson JA
Thomas JA
Moynihan J
[Botros v Freedom Homes P/L]
BETWEEN
HELEN BOTROS and MARY BOTROS

(Defendants) Appellants

AND
FREEDOM HOMES PTY LTD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON JA
Judgment delivered 7 May 1999
1 This is an appeal from a decision of a District Court Judge refusing leave to appeal against

orders of the Queensland Building Tribunal, constituted by Mrs D Mullins of senior counsel (as she
now is), that the respondents Mrs Helen Botros and Mrs Mary Botros ("the owner") pay to the
applicant Freedom Homes (Qld) P/L ("the builder") the sum of $41,382 on or before 18 July 1997
or, in default, that they pay that sum with interest at 8% from 30 June 1997 until payment.
2 The orders were made under s95 of the Queensland Building Services Authority Act 1991

in respect of a written building contract dated 16 June 1995 made between the owner and the
builder for construction of a dwelling house at Forest View, Bundaberg. The building work was commenced in or after August 1995. The first progress claim, which was for the slab, was made
and paid without incident. The next stage was the frame. For this, invoice 3284 dated 29 September
1995 was issued. The Tribunal Member found it was issued by the builder and received by the
owner before the date it bore. It has never been paid.…

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.

Continue reading Freedom Homes Pty Ltd v Botros

Details

AGLC: Freedom Homes Pty Ltd v Botros [1999] QCA 150
Case: [1999] QCA 150
Decision Date: 7/05/1999

CaseChat Overview and Summary

This appeal concerns a dispute between the Botros family and Freedom Homes Pty Ltd regarding a building contract. The Botros family, represented by Helen and Mary Botros, sought to appeal a decision of the Queensland Building Tribunal that they pay Freedom Homes Pty Ltd a sum of $41,382 for breach of a building contract. The District Court had dismissed their application for leave to appeal, and the Botros family appealed this decision to the Court of Appeal.

The legal issues before the Court of Appeal were whether the District Court judge erred in refusing leave to appeal against the Tribunal's orders and whether Mary Botros, who was not a signatory to the contract, was a party to the contract and thus liable for the payment ordered by the Tribunal. The Court had to consider if the Tribunal Member's decision was correct and if the District Court judge was right in dismissing the Botros family's application for leave to appeal.

The Court of Appeal found that the Tribunal Member's decision was correct and that the District Court judge did not err in dismissing the Botros family's application for leave to appeal. The Court held that the Botros family's conduct amounted to repudiation of the building contract, justifying the builder's termination and claim for damages. The Court also ruled that the failure to comply with s58(1)(a) of the Queensland Building Services Authority Act 1991 did not invalidate the contract, and it was too late to challenge Mary Botros's status as a party to the contract. The Court dismissed the appeal with costs.

In summary, the Court of Appeal upheld the Tribunal's decision and dismissed the Botros family's appeal, confirming that they were liable for the payment ordered and that Mary Botros was indeed a party to the building contract.

Orders