French v NPM Group P/L

[2008] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION:

French & Anor v NPM Group P/L [2008] QCA 217

PARTIES:

ROBERT FRENCH and LYNETTE FRENCH
(plaintiffs/appellants)
v
NPM GROUP PTY LTD ACN 052 545 936
(defendant/respondent)

FILE NO/S:

Appeal No 3311 of 2008
SC No 9795 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2008

JUDGES:

de Jersey CJ, Keane JA and Lyons J
Judgment of the Court

ORDERS:

1. Appeal dismissed

2. Costs to be assessed on the standard basis

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – EFFECT OF JUDGMENTS – MERGER OF CAUSE OF ACTION – Where a Tribunal made orders with respect to a contractual obligation – Where the trial Judge found that the applicants’ contractual rights under the guarantee had merged in the orders of the Tribunal – Whether the trial Judge erred

Commercial and Consumer Tribunal Act 2003 (Qld), s 94(2)
Queensland Building Services Authority Act 1991 (Qld), s 77(2)(g)

Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444; [1976] HCA 21, considered
Johnson v Agnew [1980] AC 367, applied
Moschi v Lep Air Services Ltd [1973] AC 331, cited
Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730, cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, cited

COUNSEL:

P L O’Shea SC for the appellants
P H Morrison QC, with M J Luchich, for the respondent

SOLICITORS:

Dibbs Abbott Stillman for the appellants
Gadens Lawyers for the respondent

1. THE COURT:  By a written agreement dated 24 June 2003, the respondent (which carried on business under the name "Ark Homes") contracted to build a new homestead for the appellants on their property west of Townsville.  The agreement contained what the learned trial Judge described as:

"an unusual term, whereby the plaintiffs could require the [respondent] to remove the house, restore the land to its unimproved state and repay in full the price if the plaintiffs were 'not happy that [the respondent] had met and exceeded the specifications [the respondent] agreed on in full …'". 

This term was referred to by the parties and by His Honour as "the guarantee" (French v NPM Group Pty Ltd [2008] QSC 48 at [3]).

1. After the appellants took possession of the newly constructed house from the respondent, they complained of a number of defects.  Some were structural.  The appellants demanded that the defects be rectified.  The appellants were not satisfied with the respondent's response to their demands and commenced proceedings in the Commercial and Consumer Tribunal ("the Tribunal") in December 2004.

1. The principal relief sought by the appellants in those proceedings was an order, under s 77(2)(g) of the Queensland Building Services Authority Act 1991 (Qld) ("the Act"), that the respondent take steps to remedy the defects. In the alternative, the appellants sought a declaration that the agreement had been terminated, an order…