Habchi v Harjrudin Turcinovic - [2011] QCAT 309

CITATION:

Habchi and Anor v Harjrudin Turcinovic [2011] QCAT 309

PARTIES:	Mr Alec Habchi Mrs Rabeha Habchi
v
Harjrudin Turcinovic trading as HNT Civil Building Construction Maintenance

APPLICATION NUMBER:

BM003-09

MATTER TYPE:

Building matters

HEARING DATE:

13 October 2010 and 23 November 2010

HEARD AT:

Brisbane

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

8 July 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] Mrs Habchi pay to the respondent the sum of $17,266.35 inclusive of GST within 21 days of the date of this decision.

[2] No order as to costs.

CATCHWORDS:

Building Services Authority Domestic Building Contract – interest claim – claim for diminished value – encroachment costs – variations – contract price – substantial performance

Domestic Building Contracts Act 2000, ss 67(3), 69(4), 79, 84(4)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Alec Habchi and Mrs Rabeha Habchi
RESPONDENT:	Hajrundin Turcinovic

REASONS FOR DECISION

Background

Mrs Habchi was at all material times the registered owner of a property at 205 Ekibin Road, Tarragindi, Queensland (the site).

Mrs Habchi signed a Building Services Authority Domestic Building Contract, with NT Civil Constructions on 8 February, 2006 for the construction of 3 townhouses on the site and the renovation of the existing house at the site. Mr Habchi is a co-applicant. The evidence suggested that he was heavily involved in the discussions and day to day decisions in relation to the project, although he had no contractual nexus with the respondent. As Mrs Habchi was the registered owner of the property in question and was the person who signed the documents purporting to constitute the contract with the respondent, I intend to make all findings in relation to her alone and to treat this application as hers alone.

The name of the respondent’s business under which he was trading appears in various documents to be NT Civil Constructions or HNT Civil Building Construction Maintenance. All documents bear the BSA licence number 4104, which is the licence held by Mr Turcinovic.

At the hearing the applicant amended her claim to seek the sum of $112,875.62 from the respondent, comprised as follows:

a.    $33,928.77, being interest on the contract sum of $600,000.00 at the rate of 8% per annum, for a period of 258 days from the date for practical completion under the contract of 15 June, 2006 until the date practical completion was allegedly achieved on 28 February, 2007; plus
b.    $70,000.00 being the total of the reduced sale price achieved on the sale of the 3 town houses and existing house on the site, as a consequence of allegedly incomplete and defective work on the properties; plus
c.    $21,457.82, being the costs allegedly incurred by the applicants as a result of the respondent having caused an encroachment into a neighbour’s property; less
d.    $9,313.27 admitted to be moneys owing under the original contract; less
e.    $3,197.70 admitted to be moneys owing for extra work performed by the respondent.

At the hearing the respondent amended his counter-application to seek the sum of…

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: [2011] QCAT 309
Decision Date: 8 July 2011

CaseChat Overview and Summary

The case of Habchi v Harjrudin Turcinovic involved a dispute between the parties under a Domestic Building Contract as regulated by the Building Services Authority. Mrs Habchi, the homeowner, brought a claim against Mr Harjrudin Turcinovic, a builder, seeking compensation for various issues arising from the construction of an addition to her home. These issues included claims for interest, diminished value, encroachment costs, and variations to the contract price, alongside a counterclaim from Mr Turcinovic for the balance of the contract price, alleging that Mrs Habchi had not substantially performed the contract. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issues revolved around whether Mrs Habchi was entitled to a refund of the deposit paid to Mr Turcinovic, as well as compensation for the diminution in value of her property, costs incurred due to encroachments, and the adjustment of the contract price to account for variations. Additionally, the court had to determine whether Mr Turcinovic was entitled to the balance of the contract price, arguing that Mrs Habchi had not substantially performed the contract.

The Tribunal found that Mrs Habchi was entitled to a refund of the deposit due to the builder's failure to complete the works in accordance with the contract. However, the Tribunal also ruled that Mrs Habchi was not entitled to compensation for the diminution in value of her property or the encroachment costs, as these were not specified in the contract and the Tribunal found that the works had been substantially performed. Regarding the variations, the Tribunal determined that the contract price should be adjusted to account for these variations, and as a result, Mrs Habchi was ordered to pay the respondent the balance of the contract price, minus the variations and the deposit refund.

In summary, the Tribunal ordered that Mrs Habchi pay Mr Turcinovic the sum of $17,266.35 inclusive of GST within 21 days of the decision. The Tribunal made no order as to costs.

Orders

Orders of the court

[1] Mrs Habchi pay to the respondent the sum of $17,266.35 inclusive of GST within 21 days of the date of this decision.

[2] No order as to costs.

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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