Greer & Anor v Mt Cotton Constructions Pty Ltd

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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
PARTIES:

DAMIEN GREER

(first appellant)

KATE GREER

(second appellant)

v

MT COTTON CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO: APL044-17
ORIGINATING APPLICATION NO:

BDL190-14

MATTER TYPE: Appeals
DELIVERED ON: 21 November 2018
HEARING DATE: 22 August 2017
HEARD AT: Brisbane
DECISION OF:

Senior Member Brown

Member Burke

ORDERS:

1.   Appeal allowed.

2.   The decision dated 17 January 2017 in BDL190-14 is set aside.

3.   The matter is returned to the Tribunal for rehearing according to law and in accordance with these reasons.

4.   The parties must file and exchange any submissions on the costs of the appeal within fourteen (14) days and any submissions in reply within seven (7) days thereafter.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY –

where question of law – whether tribunal erred in assessing owners entitlement to damages on the basis of the value of variations not complying with Part 7 of the Domestic Building Contracts Act 2000 (Qld)

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION

CONTRACTS – BUILDING, ENGINEERING AND RELATED  CONTRACTS    –    PERFORMANCE    OF

WORK – GENERAL – Domestic Building Contracts Act 2000 (Qld) – where contractual variations – where variations did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld) – where no application to QCAT for approval to recover amounts for non- compliant variations – where tribunal at first instance found assessment of owners’ entitlement to damages required non-compliant variation works to be valued – whether tribunal erred in assessing owners’ entitlement to damages – purpose of Domestic Building Contracts Act 2000 (Qld) – purpose of Queensland Building and Construction Commission Act 1991 (Qld) – whether s 84 of the Domestic Building Contracts Act 2000 (Qld) abrogates entitlement of a builder to retain monies paid by an owner for non-compliant variations

Acts Interpretation Act 1954 (Qld), s 14A

Domestic Building Contracts Act 2000 (Qld) (repealed), s 3, s 6, s 6(2), s 6(5), s 7, s 7(1), s 16, s 16(1), s 64, s 65, s

66, s67, s 69, s 72(2)(b), s 79, s 80, s 81, s 82, s 83, s
83(1)(b), s 84, s 84(2), s 84(2)(a), s 84(3), s 84(3)(a)(i), s
84(4), s 84(4)(a)(i), s 84(4)(a)(ii), s 84(6), s 84(7), s 92, s
93(1)
Queensland Building Construction and Commission Act
1991 (Qld), s 3, s 42, s 42(1), s 42(3), s 42(4), s 77, s 77(2),
s 77(3)(d), Schedule 1, s 62

Queensland Building Services Authority Act 1991, s 42, s 42(3)

Queensland Civil and Administrative Tribunal Act 2009, s 115, s 115(1), s 116, s 116(2), s 142, s 142(1), s 142(3)(b),

s 147(1), s 147(2), s 147(3)

Allaro Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286

Bellgrove v Eldridge (1954) 90 CLR 613
Cachia v…

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Details
Case
[2018] QCATA 196
Decision Date

CaseChat Overview and Summary

The appeal was brought by Greer and another party against Mt Cotton Constructions Pty Ltd. The primary dispute involved the assessment of damages for variations that did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld). The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), and subsequently, an appeal was lodged with a higher court. The legal issues centred on whether the tribunal had erred in its assessment of the owners' entitlement to damages for variations that did not comply with the statutory requirements. Specifically, the court had to determine if the tribunal was correct in valuing the non-compliant variation works in its assessment.

The court found that the tribunal had indeed erred in its assessment. The reasoning was grounded in the purpose of the Domestic Building Contracts Act 2000 (Qld) and the Queensland Building and Construction Commission Act 1991 (Qld), which aim to protect homeowners from unfair practices by builders. The court held that section 84 of the Domestic Building Contracts Act 2000 (Qld) does not abrogate the builder's entitlement to retain monies paid for non-compliant variations. Therefore, the tribunal's approach to valuing the non-compliant variation works was inconsistent with the statutory framework. As a result, the appeal was allowed, and the decision dated 17 January 2017 was set aside. The matter was returned to the tribunal for rehearing according to law and in line with the court's reasons.

Orders

Orders of the court

1. Appeal allowed.

2. The decision dated 17 January 2017 in BDL190-14 is set aside.

3. The matter is returned to the Tribunal for rehearing according to law and in accordance with these reasons.

4. The parties must file and exchange any submissions on the costs of the appeal within fourteen (14) days and any submissions in reply within seven (7) days thereafter.

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

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