Gravenall v Craig Rynne Constructions Pty Ltd - [2016] QCAT 66

CITATION:

Gravenall v Craig Rynne Constructions Pty Ltd [2016] QCAT 66

PARTIES:	Dianne Gravenall
v
Craig Rynne Constructions Pty Ltd

APPLICATION NUMBER:

BDL280-11

MATTER TYPE:

Building Matters

HEARING DATE:

29 October 2012
30 October 2012
15 August 2013
16 August 2013
3 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member Fiona FitzPatrick, Presiding
Member Hughes

DELIVERED ON:

26 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Craig Rynne Constructions Pty Ltd is to pay to Dianne Gravenall the sum of $23,542.03 by 4.00pm on 11 March 2016.

2. Dianne Gravenall is to file with the Tribunal and serve on Craig Rynne Constructions Pty Ltd any submissions on costs by 4.00pm on 18 March 2016.

3. Craig Rynne Constructions Pty Ltd is to file with the Tribunal and serve on Dianne Gravenall any submissions on costs by 4.00pm on 1 April 2016.

4. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4 April 2016.

CATCHWORDS:

BUILDING DISPUTE – DOMESTIC BUILDING - COST PLUS CONTRACT – whether cost plus contract enforceable by builder – where substantial part of work could not be reasonably calculated without some work being carried out – whether misrepresentations by builder induced owner to enter contract – where no supporting evidence – where cost plus contract moves risk of costs of works exceeding estimate from builder to homeowner - where contract enforceable – where no entitlement to refund of builder margin – where no basis at law for claim to alleged overcharges under section 69 of the Domestic Building Contracts Act 2000 – whether credits passed on – where reconciliation based on hearsay and subjective opinion, rather than an objective evaluation and analysis – where claim for rectification of defects – whether defect or incomplete work - where builder not liable for incomplete work under cost plus contract – where competing expert evidence –– where homeowner agreed to design limitation - where homeowner procured further expert report after Expert Conclave without leave of the Tribunal and denied other expert opportunity to prepare further report in response, contrary to purpose of Expert Conclave and procedural fairness – where no quantifiable loss for delay in installing termite notices – where insufficient evidence of rebate – where claim for reactivation fee and loss in land value arising from delay in certification – where no quantum evidence of reactivation fee – where owner referred to procuring agent quotes as evidence of intention to sell – where no agent quotes produced as evidence - where agent not called to give evidence - where insufficient evidence of intention to sell –where claim for cost to relocate pipes – where owner admitted to changing capacity and location of tanks without communicating change to architect –– where claim to additional plumbing charge – where additional plumbing charge not apparent on face of invoice – where builder counter-claimed for money owing – where builder did not lead evidence of future costs of completion to support claim to…

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.

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Details

Case: [2016] QCAT 66
Decision Date: 26 February 2016

CaseChat Overview and Summary

Gravenall v Craig Rynne Constructions Pty Ltd involved a dispute between Dianne Gravenall and Craig Rynne Constructions Pty Ltd, concerning the construction of a domestic building under a cost-plus contract. The dispute was heard and determined by the Australian Building and Construction Commission (ABCC), now known as the Australian Building and Construction Commission (Fair Work Building and Construction). The primary issues before the Commission included the enforceability of the cost-plus contract, potential misrepresentations by the builder, the builder's entitlement to a margin on costs, and various claims for overcharges, delays, and defects in the construction.

The Commission first addressed the enforceability of the cost-plus contract, finding that it was valid and enforceable despite the homeowner's objections. The homeowner argued that the contract was unfair and that the builder had misrepresented the nature of the work, but these claims were dismissed for lack of evidence. The Commission further ruled that the builder was entitled to a margin on costs as stipulated in the contract, and there was no legal basis for the homeowner's claim for a refund of this margin. Regarding the homeowner's allegations of overcharges, the Commission found that there was insufficient evidence to support the claim, and that the reconciliation of costs was not conducted in an objective or analytical manner. The homeowner also alleged defects and incomplete work, but the Commission found that the builder was not liable for incomplete work under the cost-plus contract, and the evidence regarding defects was inconclusive.

The homeowner further claimed for costs related to delays and additional charges, but these claims were also dismissed for lack of evidence or procedural issues. The Commission found that the homeowner had failed to provide sufficient evidence to substantiate claims for reactivation fees, loss in land value, and additional plumbing charges. The builder's counterclaim for money owing was not successful as the builder did not provide evidence to support the claim for future loss of builder margin. The Commission ordered Craig Rynne Constructions Pty Ltd to pay Dianne Gravenall a sum of $23,542.03 and directed the parties to file and serve submissions on costs. The costs of the proceedings were to be determined on the papers and without an oral hearing.

Orders

Orders of the court

1. Craig Rynne Constructions Pty Ltd is to pay to Dianne Gravenall the sum of $23,542.03 by 4.00pm on 11 March 2016.

2. Dianne Gravenall is to file with the Tribunal and serve on Craig Rynne Constructions Pty Ltd any submissions on costs by 4.00pm on 18 March 2016.

3. Craig Rynne Constructions Pty Ltd is to file with the Tribunal and serve on Dianne Gravenall any submissions on costs by 4.00pm on 1 April 2016.

4. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4 April 2016.

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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