Habchi v Harjrudin Turcinovic
[2011] QCAT 309
•8 July 2011
| 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 $51,196.04 from the applicant, for moneys unpaid under the contract comprised as follows:
a. the original contract price of $600,000.00, plus
b. a variation to the contract known as the second variation in the sum of $23,119.16; plus
c. a variation to the contract known as the third variation in the sum of $9,350.88; plus
d. final certifying costs in the sum of $726.00; less
e. an agreed deduction to the contract price of $12,000.00; less
f. the amount received from the applicants of $570,000.00.
This calculation ignores the further claim of $2,000 in relation to what is described in the counter-application as the first variation. I am prepared to find that the respondent overlooked that claim when making his final submissions. I will deal with that claim in this decision. In all, the respondent’s counter-application is for the sum of $53,196.04.
The application was originally filed in the former Commercial and Consumer Tribunal. The relevant functions of that Tribunal are now performed by the Queensland Civil and Administrative Tribunal. This matter will be dealt with as an existing proceeding in this Tribunal.
The parties consented to the proceeding being dealt with as a major commercial building dispute and an order was made to that effect on 28 October 2009.
The parties were self represented at the hearing which took place on 13 October 2010 and 23 November 2010. The applicants were assisted during the hearing by Mr Les Collishaw, Licensed Builder and consultant. The respondent was assisted during the hearing by Mr Paul Baggaley, Manager, employed by the respondent.
The applicant’s claim
The contract
There was a dispute between the parties as to what documents were provided to Mrs Habchi at the time of signing the documents. I accept Mrs Habchi’s evidence that she signed and received a copy of the Building Services Authority (BSA) Building Contract Schedule, exhibit 4, but did not receive or sight the BSA Consumer Guide or General Conditions of Building Contract which are intended to accompany the document signed by Mrs Habchi. I find that the Contract Schedule formed part of the contract between the parties.
The BSA General Conditions are stated to be included in the contract in highlighted print on the front page of the Contract Schedule. The form of Contract Schedule used by the respondent refers to the BSA General Conditions of 2002, although those Conditions would not have been current as at the date the contract was signed on 8 February 2006. Mrs Habchi refers at length in her Statement of Claim to provisions extracted from the General Conditions issued April 2005 and seeks to rely on breaches of those provisions.
Given that both parties signed the Contract Schedule which incorporates the General Conditions, I find they are both bound by the General Conditions, issued in April 2005 on the basis that they were incorporated by reference.[i] I find that the April 2005 version of the General Conditions is the version which is incorporated as it is the version which the parties would have obtained from the BSA at the time.
No party tendered the General Conditions in evidence. After the hearing I directed the parties to file a copy. The respondent filed a copy of the General Conditions of BSA’s Major Works Contract issued April 2005. To the extent necessary, I will rely on that document.
Mrs Habchi signed and was provided with a schedule of finishes and lump sum price in letter format, dated 8 February 2006, (exhibit 5). I find that letter forms part of the contract.
The respondent admits that he was provided with design and engineering drawings and the Brisbane City Council Development approval. I find that those documents form part of the contract. See exhibit 23.
Relevant legislation
It is apparent that the scope of work covered the construction of 1 detached townhouse dwelling and 2 other townhouses configured as a duplex and the renovation of an existing home.
This Tribunal and the previous Commercial and Consumer Tribunal, is empowered, pursuant to the Queensland Building Services Authority Act 1991, to deal with building disputes. Building disputes are defined to include domestic building disputes and commercial building disputes.
Commercial building disputes arise out of commercial building work, which relevantly is defined as not domestic building work.
Domestic building disputes are relevantly defined to arise out of a contract for the performance of reviewable domestic work. Domestic building work is governed by the Domestic Building Contracts Act 2000.
Section 7(1) of the Domestic Building Contracts Act 2000, in force as at 8 February 2006 provided, relevantly, that a domestic building contract was a contract to carry out domestic building work. Section 7(2) set out exclusions from that definition, which do not apply in this case.
Section 8 of the Domestic Building Contracts Act 2000, in force in 2006 defined domestic building work to include the erection or construction of a detached dwelling.
Detached dwelling was defined in that Act to mean a single detached dwelling or a duplex.
In 2004, the Court of Appeal in C&E Pty Ltd v CMC Brisbane Pty Ltd (Administrators Appointed)[ii] held that a contract for the construction of 10 separate houses was a regulated contract under the Domestic Building Contracts Act 2000. The Court of Appeal held that where the definition of “detached dwelling” in that Act refers to “single detached dwelling” it does not mean that if the contract covered more than one detached dwelling it did not relate to domestic building work under the Act. Rather section 32C of the Acts Interpretation Act 1954 applies so that the singular includes the plural and detached dwelling also means detached dwellings.
I am satisfied that the contract was for domestic building work as defined by the Domestic Building Contracts Act 2000 as it existed at the date the contract was entered, on 8 February 2006.
As at December 2007 an amendment to section 7(2) of the Domestic Building Contracts Act 2000 came into force, so that after that date a contract such as the one entered into between the parties in this case would have effect as a commercial building contract outside the ambit of the Domestic Building Contracts Act 2000.
The Queensland Building Services Authority and Other Legislation Amendment Act 2007 amended section 7(2) of the Domestic Building Contracts Act 2000, to exclude specified contracts from its ambit. These contracts include a contract between a building contractor and a building owner for the construction of 2 or more detached dwellings.
However, for the purpose of these proceedings, section 20 of the Acts Interpretation Act 1954 applies to ensure the continuing operation with respect to the parties of the Domestic Building Contracts Act 2000 in force in 2006.
Mrs Habchi’s claims
Encroachment
The parties agree that the respondent constructed the garage of townhouse 1 so that it encroached onto the adjoining property at 127 Chester Road, Annerley by 0.100 metre. The adjoining property was owned by Mr Mel and Mrs Elia Moubarak.
Mrs Habchi asserts that she has suffered loss and damage as a result of the encroachment as follows:
a. Payment owed to Mr Moubarak in the sum of $12,000.00
b. Mr Moubarak’s legal fees – Harding Richards Lawyers – $2,594.00
c. MDRN solicitors fees – $251.80
d. Colavitti Lawyers – $395.02
e. Survey fees:
1.Invoice No 3815 –$3,995.00
2.Invoice No 3895 – $1,012.00
3.Invoice No 4682 – $550.00
4.Invoice No 4729 – $220.00
5.Invoice No 4765 – $440.00
Mrs Habchi has filed the following material in relation to her claim:
a. Deed dated 26 March 2007 between herself and Mr and Mrs Moubarak, whereby she agreed to pay all the costs associated with preparation of a survey plan to effect an easement on the Moubarak’s property and registration of the easement. The Deed provided for a consideration of $1.00 for the granting of the easement (Exhibit 13).
b. Easement and attached Schedule lodged in the Queensland Land Registry on 27 May 2009. The grantor of the easement is shown as Mr and Mrs Moubarak. The grantee is the Body Corporate for the AKL Community Titles Scheme. The schedule records that each party must bear their own costs for negotiating, preparing and executing the easement, but the grantee will bear the cost of preparing the Easement Plan, stamp duty, registration fees and consent fees. The consideration for the easement is said to be $1.00 (See attachment to exhibit 3).
c. Letter signed by Elie Moubarak, “ To Whom It May Concern” dated 24 September 2009 stating, “I Elie Moubarak, received a payment of $12,000 (Twelve Thousand Dollars) paid in full from Alec & Rabeha Habchi, of 205 Ekibin Road East Tarragindi QLD 4103, for the access and use of the easement oat 139 Chester Road Annerley QLD 4103.” (See attachment to exhibit 3).
d. Letter signed by Mel Moubarak, “To Whom It May Concern”, dated 24 September 2009 stating, “We, Mel Moubarak & Elie Moubarak, require payment of $12,000 (twelve thousand dollars) to be paid in full upon settlement of the Court case from Alec & Rabeha Habchi, previously of 205 Ekibin Road East, Tarragindi Qld 4103, for the building encroachment easement at 139 Chester Road, Annerley Qld 4103.” This letter was tendered on the second day of the hearing and is exhibit 33.
e. Copies of all invoices, except the Colvitti Lawyers invoice.
Mrs Habchi’s evidence was that the first Deed was not accepted by the Land Registry and as a consequence a surveyor had to be engaged for further work to be done and legal costs were incurred in registering the easement. Her evidence was that a separate verbal arrangement was entered into with the Moubaraks for the payment of the sum of $12,000.00 as consideration for the easement, if the claim against the Respondent succeeds. The evidence was that despite the letter from Mrs Moubarak that sum has not been paid to the Moubaraks.
Mrs Habchi’s evidence was also that on top of payment for survey work associated with the easement, her husband attended to payment of the surveyors’ outstanding fees for other work performed at the site, at the request of the respondent. That other work is included in the amount claimed from the respondent in this part of the claim.
The respondent although admitting the encroachment, denies that he was negligent or in breach of contract in causing the encroachment. He says that the boundaries were set out by a licensed surveyor, but that someone moved the peg, causing the encroachment.
I find that the respondent was negligent in constructing the garage so that an encroachment resulted.
I find that Mrs Habchi is entitled to be put in the position she would have been in if the negligence had not occurred. She would not have had to bear the legal costs and outlays associated with the easement if the encroachment had not occurred.
However, not all of the claims made by Mrs Habchi are sustainable.
The respondent’s evidence was that he settled all the Moubaraks’ claims against Mrs Habchi, on the basis that he would perform work for the Moubaraks and make a cash payment to a total value of $12,000.00. He gave evidence that he did so and tendered a copy of a letter from HNT Civil Building Construction Maintenance & Associates, dated 11 January 2007 to Mr Moubarak, said to be consistent with that agreement. (See exhibit 14).
The letter refers to an agreement regarding the loss of Mr Moubarak’s land and seeks confirmation of the agreement before a cash payment of $2,000.00 is made. The letter sets out the respondent’s understanding that the agreement with respect to loss of the land was that the respondent would remove a house from the land, clean up rubbish, remove large limbs from a mango tree and pay a cash sum of $2,000.00. The respondent’s letter said that he did the work and the costs associated with removal of the house and various earthworks were $18,600.00. There is no evidence of Mr Moubarak’s response.
The respondent’s response and counter-application refers to a meeting in March 2007, between the applicant (who in this instance I take to be Mr Habchi), Mr Moubarak and the respondent. It is asserted that at that meeting it was agreed that Mr Moubarak and the applicant would enter a Deed with respect to the encroachment and register an easement. In consideration for the easement the respondent would pay Mr Moubarak $5,000.00 to cover legal costs and outlays and provide building services in kind to the value of $8,000.00 for Mr Moubarak at his property.
The respondent gave evidence that he paid $5,000.00 and did the work for Mr Moubarak.
The respondent also gave evidence that he paid Invoice No 3613, dated 3 August 2006, from East Coast surveys in an amount of $2,618.00 on 9 February 2007, and that he paid Invoice No 3895 dated 1 May 2007 in an amount of $1,012.00 on 30 May 2007 to East Coast surveys. These payments were acknowledged in an email from East Coast surveys. (See attachment to exhibit 30). The respondent also tendered a job transactions statement showing payment of two other accounts to East Coast surveys on the Habchi project, in an amount of $2,381.82 on 3 August 2006 and $920.00 on 21 May 2007.
The respondent denied any liability to pay the other invoices referred to in the Statement of Claim and said they were all addressed to Mr Habchi and related to other work performed for him.
I am unable to find that Mrs Habchi has any liability to the Moubaraks for payment of a further sum of $12,000.00 as consideration for the easement given by them to the Body Corporate for the AKL Community Titles Scheme. Mrs Habchi has suffered no current loss which would give her an entitlement to make a claim on the Respondent for breach of contract or as damages for negligence, in that amount. I am not satisfied on the evidence presented by Mrs Habchi, that there is any enforceable agreement between the Moubaraks and Mrs Habchi which would give rise to such a liability in the future. Such an agreement appears to be at odds with the written and signed Deed of 27 March 2007 and the registered Easement and Schedule, which provided for a consideration of $1.00 for the easement. Neither Mr nor Mrs Moubarak were called to give evidence in relation to the alleged agreement nor to explain the difference in the letters from each of them in relation to payment of the sum of $12,000.00. I give the letters no weight as evidence of any agreement. On this basis I decline to make any award to Mrs Habchi for the sum of $12,000.00 forming part of the encroachment claim.
I accept the evidence of the respondent that he paid $5,000.00 to Mr Moubarak and performed work on his property to a total value of at least $12,000.00 in satisfaction of any claim the Moubaraks may have against Mrs Habchi arising out of the encroachment. However, there was no evidence before me that the Moubaraks accepted that money and work in full and final satisfaction of their claims. Mrs Habchi agreed in the 2007 Deed to pay for all the costs of preparation of a survey plan and the registration costs of the easement. The Body Corporate for the AKL Community Titles Scheme agreed in the registered easement and schedule to meet the cost of preparing the easement plan and stamp duty, registration fees and all consent fees. There is no evidence as to what the Body Corporate for the AKL Community Titles Scheme paid and the Body Corporate is not an applicant in these proceedings.
Even if the hurdle of the correct applicant for recovery from the respondent could be overcome, I consider the only sum which might be recoverable from the respondent is the cost of preparation of the easement plan and the registration and associated costs of the easement. No witness was called from East Coast surveys to explain the contents of their invoices or which invoices related to preparation of the survey plan. I find that the respondent has in any event paid East Coast Surveys Invoice No. 3895, dated 1 May 2007, which sets out a description of the work performed as “RECONFIGURATION OF LOT –Easement Survey. Peg new easement”
No other invoice appears to be relevant in time or by description to preparation of the survey plan. I note that the survey plan tendered by Mrs Habchi as an attachment to exhibit 3, is dated 24 April 2007, suggesting the work to prepare the plan was done at or around that date and that the invoice dated 1 May 2007 would catch that work.
I cannot find that the survey invoices (apart from Invoice No. 3895) listed in Mrs Habchi’s claim relate to preparation of the survey plan. The invoices are addressed to Mr Habchi. No evidence was put before me as to what the invoices relate to, which would justify an order requiring payment of the value of those invoices by the respondent.
The other costs which the respondent may be liable for are the costs associated with registration of the easement. I note the account from Harding Richards, Lawyers, dated 24 July 2009. The Statement of Claim asserts that the Harding Richards fees are the fees of the Moubarak’s lawyers which Mrs Habchi has paid. This does not appear to be the case. In any event, the Moubaraks agreed in the Schedule to the Easement to bear their own costs for negotiating, preparing and executing the easement.
The account references “Creation of Body Corporate – AKL CTS”. On the basis that Mrs Habchi was the original proprietor of the Body Corporate for the AKL Community Titles Scheme and appears to have incurred legal costs and outlays associated with the registration of the easement, in that capacity, I am prepared to award her the amount of the legal costs and outlays incurred by her in that capacity as a result of the encroachment.
Other than the items listed in the account as being performed from 29 May 2009, the Harding Richards account appears to relate to the easement. Harding Richards reduced their fees from $2,594.00 to $1,800.00, which is less than the fees would have been if the work from 29 May 2009 was deducted. On this basis I award Mrs Habchi the amount of $1,950.00 for professional fees and GST paid to Harding Richards and the sum of $860.80 for registration fees and a requisition fee associated with the easement.
I do not have sufficient evidence before me, in relation to the other lawyers’ fees claimed by Mrs Habchi as to whether the fees relate to costs borne by her in relation to the easement; accordingly I make no order with respect to them.
Payments made by or on behalf of Mrs Habchi, claimed to be offset against the contract price.
Mrs Habchi submitted at the hearing that the sum of $18,556.49 was paid to suppliers or subcontractors, which sum formed part of the contract price and which should be offset against the contract price, leaving the adjusted contract price at $581,443.51.
The respondent admits that payments were made, but says that the parties compromised the offset against the contract price at a meeting held on 2 January 2007 so that the offset was capped at $12,000.00. That is strenuously denied by Mr Habchi who was alleged by the respondent to be present at the meeting. Neither party had any clear recall of the meeting at the hearing. I find that even if there had been discussion in relation to such a compromise, no compromise was effected.
The remaining question is whether the items paid for, were contract items covered by the contract price or items extra to the contract which Mrs Habchi was bound to pay for herself.
During the hearing some concessions were made by the respondent that certain payments did relate to contract items. The conceded payments are those claimed in paragraph 33 of the Statement of Claim at:
·(c) Majer Tiles – $150
·(g) window and door locks – $214
·(h) Carindale carpets – $10,620
·(i) door furniture – $212.40
·(j) door hardware – $5
·(k) door furniture – $16.45
·(l) door hardware – $49.35
·(n) window furniture – $191.00
·(0) screws – $7
·(s) Energex – $50.65
The total of the conceded items is $11,515.85.
Some items were deleted from the claim at the hearing. Of the items that remain in contention:
a. I find that the $220.00 claimed at 33(a), being part of a larger payment to Doors Plus, is consistent with the prime cost item in the Schedule of Finishes (exhibit 3) and should form part of the offset.
b. The payments to Jasa Imports, claimed at 33(d) and (e) relate to vanity units, tapware, basins and sinkmixer. The schedule of finishes refers only to 1200 units to be fitted and en suite vanity where applicable. No prime cost is given. There is no reference to tapware, basins and sinkmixer. On this basis, I find that the payments made by Mrs Habchi were extras and not able to be offset. The respondent said at the hearing that he would allow $660.00 as reasonable for all items. On this basis I will allow an offset of $660.00 for these items.
c. The claim for $806.68 at 33(f), relates to door and window furniture. The schedule of finishes does not encompass any door and window furniture other than to the front door and specified Trojan locks. The respondent contended that Drawing BA 11 was a full door and window schedule and therefore the items fall within the contract. The respondent did not agree. I note that the drawing provides at note 10 “all door and window hardware/furniture as specified or selected by owner”. On that basis I consider the door and window furniture other than Trojan locks was extra to the contract, being contemplated to be at the choice and, absent specification, at the cost of Mrs Habchi. The claim is disallowed for the purpose of an offset.
d. Likewise the claim for $335.95 at 33(m) for window furniture is disallowed.
e. In relation to the claim of $1,227.00 at 33(p) for garden plants and $731.00 at 33(q) for garden pavers stakes and pebbles, I note that the schedule of finishes provides that landscaping has been included in the price. Accordingly these amounts should be allowed as offsets.
f. Finally, Mrs Habchi claims $1,476.00, at 33(u), being the cost of verandah roofing. Roofing forms part of the contract. Mrs Habchi refers to Norton Metal Roofing Pty Invoice No 169. The cost of the verandah roof is not isolated on that invoice. I accept Mrs Habchi’s evidence that the sum was paid to Norton Roofing. Accordingly I allow the amount as appropriate for an offset.
In this group of items I find that a total of $3,314.00 should be allowed as an offset against the contract price.
Taking into account the conceded amounts and the amounts I have found in favour of Mrs Habchi, she is entitled to offset $14,829.85 from the contract price.
Delayed practical completion
Mrs Habchi claims the sum of $33,928.77, being damages for delay to the date for practical completion. The sum is calculated at the rate of 8% on the contract sum for a period of 258 days. 258 days is said to be the delay until practical completion was achieved on 28 February 2007, when the Certificate of Classification was issued.
The respondent asserts that practical completion was achieved on 14 December 2006 when it was agreed that Mrs Habchi’s son could commence living in one of the townhouses.
I am not prepared to award damages for delay to Mrs Habchi for any delay, because the contract schedule at Item 12 expressly provides that liquidated damages for delay are not applicable. Nor did the parties agree in the contract to payment of interest in the event of delay at the rate claimed by Mrs Habchi.
No evidence was put before the Tribunal at hearing as to any loss or damage suffered by Mrs Habchi in relation to the alleged delay in reaching practical completion, such as additional holding costs, lost rental or the like, which might have justified a claim for damages for delayed completion at common law, outside the terms of the contract.
For these reasons it is not necessary for me to make any finding with respect to this claim as to whether there was in fact a delay in completion, putting the respondent in breach of contract.
Incomplete and Defective Works
Mrs Habchi asserts that the works carried out by the respondent at the site were incomplete and defective. It is alleged in the statement of claim that:
a. the cost to complete the incomplete works was estimated at $52,373.25;
b. the cost to rectify the defective works was estimated at $28,366.00;
c. the applicants could not afford to rectify the defects prior to sale given they had exhausted their funding for the construction and works at the site; and
d. they therefore determined to sell the Units without effecting rectification of the defective works or completing the incomplete works.
It is said by Mrs Habchi that she was not able to realise full value for the property upon sale, as she would have if the respondent had rectified the defects and completed the incomplete works. She said the properties were sold at an undervalue and she suffered $70,000.00 in economic loss as follows:
a. Unit 1 $20,000.00. Sold on 18 January 2010.
b. Unit 2 $20,000.00. Sold on 23 July 2009.
c. Unit 3 $20,000.00. Sold on 16 April 2009.
d. Existing House $10,000.00. Sold on 27 March 2009.
Before Mrs Habchi can recover damages from the respondent she must establish:
a. a breach of contract;
b. that the breach has caused her loss or damage;
c. that the loss suffered is not too remote; and
d. whether she has acted reasonably to mitigate unnecessary loss.[iii]
She has asserted a breach of clauses 3 and 20 of the General Conditions of Contract as a cause of the loss and damage she has suffered.
The Statement of Claim recites Clause 3 and Clause 20 as follows:
“The Contractor must build the Works in compliance with this Contract and with all Acts of Parliament (including the Domestic Building Contracts Act 2000), Regulations and By-Laws which apply to the work under this Contract and the Works.
The contractor must build the Works;·In an appropriate and skilful way and with reasonable care and skill...
·In accordance with all relevant laws and legal requirements;
·In accordance with plans and specifications and any other Contractual Documents described at Schedule item 17 of the Contract Schedule; and
·So that the Works are suitable for occupation when the work under this Contract is finished and the Works conform with the requirements of this Contract.
The Contractor must, unless the Contact expressly provides otherwise, supply at the Contractor’s cost and expense everything necessary for the proper completion of the Works and for the performance of the work under this Contract...”
Clause 20:
“The Contractor must make good defects or omissions in the work under this Contract which become apparent within six (6) months of the Date for Practical Completion.”
The particulars of breach referred to in the Statement of Claim relate to allegedly defective work, set out in a List said to be sent to the Respondent on 11 November 2006, set out in photographs taken by HE Homes Qld and in a report from the Building Services Authority (BSA), dated 6 May 2007.
No evidence was called from HE Homes Qld or the Building Services Authority to substantiate the allegations that the townhouses and freehold dwelling renovation were incomplete or that the works were defective. The report of the BSA, dated 6 May 2007 was tendered by Mrs Habchi, and is exhibit 25. The author of the report was not called to enable cross examination. At the hearing the respondent rejected the contents of the BSA report.
At the hearing Mrs Habchi specifically agreed not to rely on the photographs or report of CE Homes Qld. This was in response to an objection by the respondent on the basis that the author of the report, Mr Collishaw, was acting as an advisor in the Tribunal. Mrs Habchi indicated that she would rely solely on the report of her expert Mr Matthews.
The applicants had earlier in the proceedings filed reports from Total Estimating Services .07, dated 18 September 2007 and 18 January 2008 respectively, which were tendered as exhibits 27 and 26. The author of the reports was not called to give evidence or to be cross examined.
At the hearing the respondent rejected the contents of the report from the BSA and the Quantity Surveyor.
The respondent gave evidence that he received a letter from Mr and Mrs Habchi, dated 15 March 2007 (exhibit 28) attaching a complaint to the BSA and a list of defects. In evidence he referred to his response dated 7 April 2007 (Exhibit 9). That letter indicated he had not received advice of any defects before then.
Mrs Habchi asserts in her Statement of Claim that on or about 11 November 2006 the applicants forwarded to the Respondent a list of defects entitled “Defects – 205 Ekibin Road, Annerley” setting out the defects under headings, Unit 1, Unit 2, Unit 3, House and General.
The respondent denied receiving this list of defects on or about 11 November 2006, in his defence and in evidence.
Such a list is appended to Mrs Habchi’s Complaint to the BSA, however no letter to the respondent enclosing the list of defects or other evidence of this list being sent on 11 November 2006 was filed by Mrs Habchi or tendered in evidence. On this basis I find that no list of defects was provided to the respondent before he received the letter of 15 March 2007 (Exhibit 28).
By letter dated 7 April 2007, the respondent replied to the list of defects. In some cases he agreed to fix the problems, in other cases he sought further information, in some cases he noted the problem as already corrected and in others he denied responsibility. In any event he agreed to attend site to attend to defects. The letter concludes:
“(f) the matter of extras and counter claims is to be settled as a separate issue and not confused with defects. See statement of claim letter.
I trust this is a satisfactory response, and look forward to organising a suitable time and date to carry out the works.”
Other than the admissions set out in the respondent’s letter of 7 April 2007 as to defective work, I cannot be satisfied on the evidence before me that the work complained of by Mrs Habchi was defective or incomplete.
I find that there was defective work as set out in the respondent’s letter of 7 April 2009 (Exhibit 9).
The fact of defective work does not mean of itself that the respondent is in breach of the contract.
The respondent’s contractual obligation is to rectify defective work, within 6 months of practical completion.
The respondent’s evidence was that he was never contacted with a time to attend at site to do the rectification work, but that he would have done so if contacted. Mr Habchi gave evidence that the respondent refused to come to site until he was paid, although he did not give particulars of any requests to the respondent to come to site.
The respondent’s evidence was that he went to site with Mr Habchi on 14 April 2007 and on that date the townhouses were tenanted. It was not disputed that at that time the house was occupied by the Habchis.
I find that neither Mr Habchi nor Mrs Habchi made arrangements for the respondent to attend at site to carry out the rectification work after receipt of the respondent’s letter dated 7 April 2007.
On the basis that Mrs Habchi did not attempt to arrange a time for the respondent to carry out rectification work, I find that the respondent was not in breach of his contractual obligation to rectify defective work within 6 months of the date of practical completion, whether that date was in December 2006 or February 2007.
Accordingly Mrs Habchi has not cleared the first hurdle in her claim for damages arising out of allegedly incomplete or defective work. She has not established a breach of contract. For completeness I will address what I consider to be other fundamental problems with her claim.
Rather than seek the cost of rectification of the alleged defects, Mrs Habchi has framed her damages case as one of diminution in value. Before awarding damages on this basis, the Tribunal must be satisfied that it was either not necessary or not reasonable (because, for example, of the disproportionate cost of rectification) to effect rectification.[iv] Although Bills of Quantities in relation to rectification and completion of works were tendered (Exhibits 26 and 27), the author was not called to be cross examined. I am unable to accord any weight to the documents or to draw any conclusion as to the reasonableness or otherwise of undertaking rectification work as set out in the Bills of Quantities.
In support of her claims Mrs Habchi called Mr Trevor Matthews (AAPI), Certified Practising Valuer, of the company R Matthews and Son Pty Ltd trading as Matthews Real Estate, to give evidence. His report, dated 3 August 2010 was tendered in evidence and is exhibit 19.
Mr Matthews agreed when giving evidence that he was not a builder able to form a view as to whether something may be a defect. He said that a lack of finish and the appearance of the townhouses, resulted in the sale prices being detrimentally affected. He also said that prolonged completion time weighs on the price offered for a property. He concluded that the 3 townhouses were devalued by $20,000.00 each at the point of sale and that the freehold dwelling suffered a reduction in price estimated at $10,000.00.
Mr Matthews has assessed diminution in value of the properties as at the date of sale. The house sold on 18 January 2010, townhouse 1 on 23 July 2009, townhouse 2 on 16 April 2009 and townhouse 3 on 27 March 2009. These sales occurred 2 to 3 years after practical completion. The date for assessment of damages is generally at the date of the breach.[v] The Queensland Court of Appeal in UI International P/L v Interworks Architects P/L & Ors[vi] referred to a claim for diminution in value being properly made by reference to value at the time of completion of construction rather than the current value. I have no evidence before me of the difference between the value of the development as it ought to have been when completed and the value of the development as it was when completed.
For these reasons I find that Mrs Habchi has not established an entitlement to damages based on a diminution in value of the development as a result of incomplete or defective work.
Award in favour of Mrs Habchi
I award Mrs Habchi the sum of $2,810.80 as damages for negligence resulting in an encroachment for which Mrs Habchi incurred that sum. She is entitled to offset those damages against any moneys found to be owing to the respondent.
I find that Mrs Habchi has paid the sum of $14,829.85 direct to suppliers and subcontractors for costs covered by the contract price and that she is entitled to offset that sum against any moneys found to be owing to the respondent.
The total offset which Mrs Habchi is entitled to make is $17,266.35.
Respondent’s counter application
The respondent has filed a counter application. Following amendment at hearing he seeks the following sums:
a. Money outstanding under the original contract – $30,000.00
b. Variation 1 – $2,000.00
c. Variations 2 and 3 – $32,470.14
d. Final Certifying Costs – $726.00.
The respondent was prepared to offset the sum of $12,000.00 as moneys paid direct to suppliers. I have found that the amount paid by the applicant was $14,829.85.
Money outstanding under the original contract
Mrs Habchi admits in her amended statement (exhibit 3), that apart from money paid direct to suppliers and subcontractors, the sum of $570,000.00 was paid towards the contract sum. Apart from variations and offsets, that would leave a balance of $30,000.00 owing under the original contract as claimed by the respondent.
Is the balance contract sum due and owing under the contract
The respondent does not appear to have rendered progress claims for the amounts or at the times contemplated by Item 10 of the contract schedule. However, it appears written claims were made by:
a. invoice dated 28 September, 2006 for additional works in the sum of $31,539.40 (Exhibit 12).
b. “Final progress claim”, dated 2 January 2007 for the balance of money under the original contract plus the money claimed on the 28 September 2006 invoice, restated as $29,154.00 and an invoice for drainage, totalling $96,170.20 (Exhibit 11).
c. Letter of demand, dated 7 April 2007, for the sum of $83,209.89, being the balance of money under the original contract, less money paid by Mrs Habchi in the sum of $10,206.65, plus final certifying cost plus:
·$22,000.00 for extras
·$30,052.22 for extras
·$10,638.32 for extras.
The Contract Schedule provides at Item 10 that the balance of money owing under the contract is payable at the Practical Completion Stage. The Practical Completion Stage is defined in the Contract as:
“...that stage when the Works are complete in accordance with this Contract and all relevant statutory requirements (apart from minor omissions or minor defects), inspections have been satisfactorily completed and the Works are reasonably suitable for habitation.”
Given the requirement for inspections to be completed, I find that the Practical Completion Stage was reached when the Certificate of Classification was given on 28 February 2007.
Item 10 refers to condition 16 of the General Conditions. Condition 16 provides that the contractor, when making a progress claim for the Practical Completion Stage must:
· Make the claim in writing using BSA Form 2 or other appropriate written notice. The relevant claim for payment by the respondent must be the letter of demand dated 7 April 2007, (exhibit 16) being the only claim for payment made after the Practical Completion Stage was reached. I find that the letter is an appropriate written notice.
· Certify that the work under the contract has been completed to the relevant stage. No certificate was given, but I find that by entering into occupation with the consent of the respondent and without a certificate, Mrs Habchi waived the requirement for such a certificate.
· Be accompanied by invoices for any prime or provisional cost items. This was not done.
· Be accompanied by a written notice in BSA Form 3 Defects Document or other appropriate written notice which must:
a.list any minor defects which both the owner and the contractor agree exist;
b.with respect to each minor defect and minor omission so identified, state a date by or a period of time in which the contractor is to correct the minor defect or minor omission; and
c.if applicable, list any minor defects and any minor omissions which the owner says exist but that the contractor does not agree exist or does not agree that the contractor is liable to correct.
This last step has not been strictly complied with, however, by 7 April 2007 the respondent had received the written list of defects prepared by or on behalf of Mrs Habchi, sent on 17 March, 2007. The respondent’s further letter of 7 April 2007 (exhibit 9), lists the defects agreed to exist and those on which there was no agreement. No date for correction of the defects is given, however to a large extent that was in the control of Mrs Habchi, given that she would have to make arrangements with her tenants for the respondent’s attendance at the site to perform the rectification work. I find that in these circumstances, it was not possible for the respondent to comply with this part of condition 16.
The owner must pursuant to condition 16 pay so much of the progress payment as is not disputed by the owner. If the owner disputes the relevant claim for progress payment or any part of it, the owner must within 5 business days give the contractor a BSA Form 4 Notice of Dispute of Progress Claim stating the reasons for so disputing. If the matter was not then resolved it was to be referred to the then Commercial and Consumer Tribunal.
Mrs Habchi did not pay any part of the progress payment. The matter was ultimately referred to the Commercial and Consumer Tribunal.
I find that the respondent has complied with condition 16 of the general conditions and there is no contractual impediment to him being paid the balance of the contract price subject to my findings as to the amount to which he is entitled.
There is a further issue relevant to the respondent having an entitlement to payment of the balance of the contract sum at the Practical Completion Stage and that is section 67(3) of the Domestic Building Contracts Act 2000. That section provides:
“The building contractor under a regulated contract must not receive all or part of the completion payment unless-
(a)the practical completion stage has been reached; and
(b)if the building owner claims the stage has been reached with minor defects or minor omissions – the first and second requirements stated in subsections (4) and (5) have been complied with.
Maximum penalty – 100 units
(4) The first requirement is that the building contractor must have given the building owner a document (the defects document) that –
(a)lists the minor defects and minor omissions that both the building contractor and building owner agree exist; and
(b)states by when the building contractor is to correct the listed defects and omissions; and
(c)lists the minor defects and omissions the building owner claims exist, but that are not agreed by the building contractor to exist; and
(d) is signed by the building contractor.
(5) The second requirement is that the building contractor must have made all reasonable efforts to have the building owner sign the defects document to acknowledge its contents.”
The analysis relevant to condition 16 is relevant in relation to compliance with section 67(3). I find that there has been compliance with the section apart from stating when the listed defects and omissions would be corrected and seeking to have Mrs Habchi sign the 7 April 2007 letter to acknowledge its contents. On balance I consider that there has been sufficient compliance with the section for the respondent not to be prohibited from recovering the balance of the contract price.
If I am wrong, I note that the penalty for receipt of moneys in contravention of this section is that the building contractor can be ordered to refund the money to the owner. However, section 69(4) provides that a refund of an amount under such an order “does not stop the building contractor from later demanding and receiving payment of the amount under the contract as part of –
(a)for a fixed price contract – the contract price...”
Accordingly, the Domestic Building Contracts Act 2000, contemplates that although the respondent may have no statutory right to payment of a progress claim at the Practical Completion Stage, in circumstances where the requirements of the statute with respect to a defects notice were not complied with, the respondent is not precluded altogether from seeking recovery of the sum in question as part of the contract price.
On the facts of this case neither party purported to terminate the contract for breach. There having been no termination, the prospect of recovering the contract price remains alive for the respondent.
By the time proceedings were issued the contract was at an end. That is, Mrs Habchi was in occupation, the townhouses were tenanted, the Certificate of Classification had been delivered and the 6 month defects liability period had expired. The question is whether the contract had been discharged by performance and whether that performance was sufficient to enable the respondent to recover the contract price.
The common law position is that the contract price will be recoverable in circumstances where the contract has been discharged by performance, even though there may be defects in that performance, provided that the contract is divisible and in relation to that part of the performance which is defective, whether the performance has been substantial. L Wilmott, S Christensen, D Butler and B Dixon in their text “Contract Law” say: “the description ‘divisible or severable contract’ is most appropriately given to a contract in which the consideration and the payment for it are apportioned or are capable of apportionment according to the work to be done.”[vii]
In this case the contract payments are divided up into stages, including the last payment to be made at the completion stage. On this basis I find that the contract is divisible. Within the completion stage I consider that the obligations are divisible. That is because the nature of a domestic building contract is that there will be defects which require correction over the 6 month period following practical completion. The contractual obligation is to pay the final sum and for the defects to be corrected after that. The contract does not require correction of all defects before payment is made. In these circumstances I find that the doctrine of substantial performance is applicable.
That doctrine provides that if the contract has been substantially performed the contract price may be recovered, subject to any claim for damages for breach.[viii]
I find that there has been substantial performance by the respondent of his contractual obligations because:
a. the parties agree that practical completion was reached, although they disagree on the date.
b. a Certificate of Classification was issued by the Brisbane Certification Group on 28 February 2007, pursuant to section 99 of the Building Act 1975 (Qld). That certificate is given if at the inspection of the final stage of building work, the building certifier is satisfied, on an inspection carried out under best industry practice, that the work complies with the building development approval.
c. the Habchis entered into occupation of the dwelling and rented the townhouses.
d. the evidence which I have accepted is that the Habchis failed to take up the respondent’s invitation to make a time for defects to be corrected, during the defects liability period.
I find that to the extent the contract was not fully performed, the owner Mrs Habchi, prevented completion of performance. In the text “Keating on Building Contracts” this issue is discussed: “It has been said that the rule that a contractor who has not substantially completed cannot recover payment does not work hardly upon him if only he is prepared to remedy the defects before seeking to resort to litigation to recover the lump sum. It seems to follow that ordinarily there is an implied duty upon an employer to give a willing contractor an opportunity to remedy defects, breach of which duty amounts to prevention. Such duty does not, it is submitted, arise if the defects are so grave as to show that the contractor is unable to perform the contract.”[ix] In these circumstances payment must be made for the value of the performance actually rendered.[x]
I find that the value of the performance actually rendered as at practical completion was at least the sum of $15,170.15, being $30,000.00 outstanding under the original contract as at the Practical Completion Stage, less the sum of $14,829.85 paid by Mrs Habchi to suppliers and subcontractors. I further find that the sum may be recovered as part of a claim for payment of the contract sum, according to the doctrine of substantial performance.
There remains the question of whether the value of extra work claimed by the respondent is recoverable from Mrs Habchi.
Extra Work
The respondent asserts that he was requested by the applicants to perform different or extra work from that contracted. He says that the first variation was a request made by Mr Habchi to construct a fence. The respondent’s evidence was that he gave a written quote in the sum of $22,000.00. That sum was accepted. The fence was constructed and the sum of $20,000.00 was paid, leaving $2,000.00 owing. Mrs Habchi has not denied these facts. The evidence at the hearing was that the fence was considered to be a side contract.
The second group of variations was said to have arisen in September 2006. Particulars are set out in the Counter-application and in the attachment to exhibit 8 which was referred to in detail at the hearing.
Mrs Habchi admitted at the hearing that out of the second group of variations claim, a number of items were requested, that the work was done and she agreed the amount claimed. These items were:
· Extra electrical wiring to the kitchen 4 hours x $60.00 – $240.00
· Gas line – $440.00.
· Extra lights for the house – $1,172.00
· Fitting new balcony door – $175.00
Total – $2,027.00
At the hearing Mrs Habchi admitted that six other items were extra work and that the work was done. She would not however agree the amount attributed to that work without sighting an invoice. Other claimed items she said were part of the contract price.
The third group of variation was said to have arisen in August and October 2006. Particulars are set out in the Counter-application and in Exhibit 8.
Mrs Habchi admitted that out of this group of variations, the following items were requested, the work was done and she agreed the amount claimed:
· Amended plan for the balcony of Unit 1 – $200.00
· Amended hydraulic plans for the house done by Scot Jenkins, cut off common sewer line and provide cleanouts at the end between units and house – $680.00
Total – $880.00
At the hearing Mrs Habchi admitted that other items of work were extra work and that the work was done, however she would not agree the amount attributed to that work without sighting an invoice. At the conclusion of the first day of hearing the respondent was directed to locate and bring to the next day of the hearing any invoices in support of his claim. Exhibit 32 is a bundle of invoices filed on 11 November 2010 and tendered by the respondent in evidence.
The invoices tendered related to the following claims:
· Reconnection of the near sewer to the house 3 and 4 October labour and material – $2,613.00
· Reconnection of new sewer to the house (4 October,) labour and material – $880.00
· Excavation line – $420.00
The respondent’s evidence was that upon the land on which the house was situated being subdivided from the land on which the townhouses were built, it was necessary to redirect the sewer on the subdivision. Invoice 1196 for $2,760.00 (inclusive of GST), from Competitive Plumbing Services was said to be evidence of the $2,613.00 claim. This was challenged on the basis that it related to work done under the original contract, not extra work. The respondent said that his diary for 3 October 2006 demonstrated the extra work required on the sewer. I cannot relate the diary entries to the tendered invoice. I am not satisfied this claim has been proved.
Invoice 1216 from Competitive Plumbing, dated 2 November 2006 in an amount of $450.00 (inclusive of GST) was said to be evidence of the $880.00 claim. Given the discrepancy between the original claim and the invoice I cannot be certain that the invoice relates to extra work. I am unable to find the claim proved in either amount.
Finally, there was no invoice tendered in support of the $420.00 claim. I am unable to find the claim proved.
As to the balance of the respondent’s claims which were not admitted by Mrs Habchi, the respondent faces the difficulty that he does not appear to have complied with Clause 21 of the contract with respect to variations or with section 79 of the Domestic Building Contracts Act 2000. Even if he could overcome these hurdles by way of the application which was made on the second day of the hearing, in accordance with section 84 of the Domestic Building Contracts Act 2000, he has submitted no evidence as to the cost of the variation and the value of a reasonable profit on that work.
Clause 21 provides:
“The work under this Contract may be varied by way of an increase, decrease or deletion of work under this Contract between the Contractor and the Owner provided that the details of the variation are put in writing in Variation Document signed by both the parties and initialled as necessary by the Owner...
The work under this Contract may be varied in any of the following ways;·Variations by Agreement
Either party may give to the other written notice requesting a variation of the work under this Contract.
The Contractor shall give to the Owner the Contractor’s calculation of the change to the price consequent upon the proposed variation and the work under this Contract shall be varied when the Owner agrees with the Contractor as to the relevant variation in the Variation Document signed by the parties and initialled as necessary by the Owner...”
Section 79 of the Domestic Building Contracts Act 2000 (the Act) provides:
“Variations must be in writing
(1) The building contractor under a regulated contract must ensure any variation of the contract agreed to between the building contractor and building owner is put into written form-
(a)within the shortest practicable time; and
(b)for a variation consisting of an addition to the subject work before any domestic building work the subject of the variation is carried out...
(4) If the proposed variation consists of an addition to the subject work, the building contractor must ensure that no domestic building work the subject of the proposed variation is carried out until the variation document has been signed...”
Section 80 of the Act sets out the formal requirements of the variation document, section 81 sets out the requirement for the variation document to state when an increase in the contract price is to be paid; section 82 requires signing of the document and section 83 requires a copy of the variation document to be given to the building owner.
Importantly section 84 of the Act provides that if the building contractor under a regulated contract gives effect to a variation of the contract which has been requested by the owner, but he has not complied with sections 79, 80, 82 and 83 of the Act, then he may only recover an amount for the variation with the Tribunal’s approval given on an application made to the tribunal.
Section 84(4) provides that the tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that either:
a. there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation; or
b. the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and
c. it would not be unfair to the building owner for the building contractor to recover an amount.
Relevant to this case, under section 84(6), if the building contractor is entitled to recover an amount for the variation of a fixed price contract the amount is the cost of carrying out the variation plus a reasonable profit.
I am satisfied that it would “be unfair to the building owner” if the respondent were to recover the amount of the claimed variations in the absence of any particularisation of his claim. I consider that as a matter of fairness, Mrs Habchi is entitled to see copies of invoices as to the cost of materials, a statement of the hourly cost of labour and the sum attributed to profit. I do not consider that the respondent has proved his claim with respect to the variations set out in the Counter-application and exhibit 8. The respondent had every opportunity to bring copies of invoices to the hearing or to call other evidence as to the reasonableness of his claims. He did not do so.
However, I do accept that Mrs Habchi is liable to pay the respondent the sum of $2,000.00 being the balance of the sum agreed to be paid for the construction of a fence. The sum is recoverable as a variation on the basis that I find the fence was requested by Mrs Habchi, the price was agreed after a written quotation was given, the fence was constructed to the benefit of Mrs Habchi and the price partly paid. In these circumstances I find pursuant to the application made by the respondent in accordance with section 84 of the Act that the respondent would suffer unreasonable hardship by the operation of section 84(2)(a) or (3)(a) and it would not be unfair to Mrs Habchi for the respondent to recover the balance of the agreed price for the construction of the fence.
Finally, in relation to the claim for $726 for final certifying costs no invoice was tendered or other evidence given to establish the amount of the claim. I find that the respondent has not proved this claim.
Conclusion and Orders
I find that Mrs Habchi is liable to pay to the respondent the sum of $17,863.37, calculated as follows:
Contract sum $600,000.00
Less payments made by the applicant $570,000.00$ 30,000.00
Plus unpaid variation (fence) $ 2,000.00
Plus unpaid variations agreed $ 2,907.00$ 34,907.00
Less encroachment costs $ 2,810.80
$ 32,096.20
Less moneys paid by the applicant
for contract items $ 14,829.85
Amount owing $ 17,266.35
The respondent’s counter-application seeks interest pursuant to the terms of the contract.
No rate of interest is inserted at item 13 of the Contract Schedule. Instead, “N/A” appears. Although no evidence was put before me as to the intention of the parties, I take “N/A” to mean that the payment of interest on overdue payments was not applicable to this contract.
Each party seeks their costs. As this is an existing proceeding I am bound by section 271 of the Queensland Civil and Administrative Tribunal Act 2009 to make a decision the former Commercial and Consumer Tribunal could have made. Section 70 of the Commercial and Consumer Tribunal Act 2003 provides that the division of that Act dealing with costs intends the parties pay their own costs unless the interests of justice require otherwise. Neither party had legal representation at the hearing. Both parties succeeded to some extent in relation to their claims, but not entirely. In these circumstances, I do not consider the interests of justice require that a costs order be made in favour of either party. I decline to order costs in favour of either party.
I order that Mrs Habchi pay to the respondent the sum of $17,266.35 no later than 21 days from the date of this decision.
[i]Smith v South Wales Switchgear Co Ltd [1978] 1 WLR 165, and generally the discussion in L Wilmott, S Christensen, D Butler, B Dixon, Contract Law, Oxford University Press, Melbourne, 2009, p.220-222.
[ii][2004] QCA 60.
[iii]L Wilmott et al, op cit at p. 749.
[iv]Bellgrove v Eldridge (1954) CLR 613.
[v]Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 161-162.
[vi][2007] QCA 402.
[vii]L Wilmott et al, op cit at p.651.
[viii]Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221; Hoenig v Isaacs [1952] 2 All ER 176 (CA).
[ix]Donald Keating, Keating on Building Contracts, Sweet & Maxwell, London, Fifth Edition, 1991, p.75.
[x]Phillips v Ellinson Brothers Pty Ltd, op. cit at p.234.
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