Gedoun Constructions Pty Ltd v Agius - [2022] QCAT 446

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446

PARTIES: GEDOUN CONSTRUCTIONS PTY LTD

(applicant)

v

MARK ELLIOT AGIUS

(respondent)

APPLICATION NO:

BDL308-18

MATTER TYPE:

Building matters

DELIVERED ON:

14 February 2022

HEARING DATES:

24 August 2020
25 August 2020
26 August 2020
27 August 2020
8 September 2020
15 September 2020
27 January 2021
28 January 2021
12 April 2021
13 April 2021
14 April 2021
15 April 2021
16 April 2021

19 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

1.       The applicant must pay the respondent:

(a)    damages of $190,140;

(b)   liquidated damages of $32,050; and

(c)    interest at the rate of 10% from the date of this decision until the date of payment.

2.       Any application for costs must be made by filing in the tribunal two (2) copies and providing one (1) copy to the other party of any submissions and evidence to be relied upon within 14 days of the date of this decision.

3.       If any application for costs is made, then the other party must file in the tribunal two (2) copies and provide one (1) copy to the applying party of any submissions and evidence in response to be relied upon within 28 days of the date of this decision.

4.       The application for costs will be determined on the papers and without an oral hearing.

CATCHWORDS:

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT

GENERALLY – whether Australian Standard 4055 can be used to give a wind classification to a house if the prescribed geometric limits had been exceeded – whether Australian Standard 1684.3 can be used to derive a general wind classification to design both cladding and timber frame

Bellgrove v Eldridge (1954) 90 CLR 613 followed

McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd [2011] QSC 178 applied

APPEARANCES & REPRESENTATION:

Applicant:

Mr L Campbell with Ms B Vass instructed by Connolly Suthers Lawyers

Respondent:

Mr N M Cooke instructed by Becker Watt Lawyers

REASONS FOR DECISION

Background to the hearing

In 2013 a developer subdivided land in Mt Louisa, a suburb of Townsville. The developer prepared concept plans for houses in the subdivision and made them available to prospective purchasers of the subdivided blocks.
In 2017 Mark Agius (owner) bought a block of land in that subdivision. The concept plans for the block, which had been provided by the developer, were the basis of negotiations of a building contract between the owner and Gedoun Constructions Pty Ltd (builder).
On 4 October 2017 the owner and the builder signed a residential building contract. Under the contract the builder was responsible to provide the final design, to obtain council approval to build, and then to construct the house in accordance with the design.
In January 2018 the design was approved and construction commenced.
In August 2018 the builder claimed that the work was practically complete. Disputes regarding the quality of the work…

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 Gedoun Constructions Pty Ltd v Agius

Details

AGLC: Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446
Case: [2022] QCAT 446
Decision Date

CaseChat Overview and Summary

Gedoun Constructions Pty Ltd (builder) brought proceedings against Mark Elliot Agius (owner) seeking final payment for the construction of a house at Mt Louisa, Townsville. The owner counterclaimed for defects in the house and damages for breach of statutory warranties. The central issue was whether the house had been designed and constructed to withstand wind loads to which it might be subject. The owner alleged that the house had been designed to withstand wind speeds covered by a C2 wind classification when it should have been designed to withstand wind speeds covered by a C3 wind classification. The builder denied liability. The tribunal found that the owner was entitled to $190,140 in damages for rectification of defects, $32,050 in liquidated damages, and interest at the rate of 10% from the date of this decision until the date of payment. The builder was ordered to pay the owner’s costs of the proceedings. The tribunal found that the house was not designed to withstand wind loads to which it might be subject. The house exceeded the geometric limits prescribed by AS 4055, however, the builder could have used AS 1170 to design the house. The owner was entitled to recover the cost of rectifying the defects, $190,140, plus GST. The tribunal held that the owner was entitled to liquidated damages of $32,050 from 7 July 2018 until 28 August 2020 and interest at the rate of 10% from the date of this decision until the date of payment. The tribunal held that the owner was entitled to recover costs of the proceedings.

Orders