Hayes v Sheenmar

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CITATION: Hayes v Sheenmar and Anor [2012] QCAT 149
PARTIES: Paul Gerald Hayes
(Applicant)
v
Jang Sheenmar
Amarjeet Sheenmar
(Respondents)
APPLICATION NUMBER: BDL008-10
MATTER TYPE: Building matters
HEARING DATE: 22 February 2012
HEARD AT: Brisbane
DECISION OF: Michelle Howard, Member
DELIVERED ON: 12 April 2012
DELIVERED AT: Brisbane
ORDERS MADE:

1.  That the respondents pay to the applicant the sum of $27,939.80 within 21 days of these orders.

2.  That the applicant give to the respondents copies of all of the Form 16 certificates obtained during the certification process which he has in his possession power or control within 14 days, together with the plumbing sustainability certificate within 42 days of these orders.

CATCHWORDS:

BUILDING – CONTRACT – where final payment outstanding under building contract –whether contract validly terminated by home owners – whether builder by conduct elected to terminate contract – whether builder entitled to final claim – whether home owners entitled to recover for damages – whether costs of rectification and costs of certification were accrued rights under the contract at the time their wrongful repudiation was accepted by the builder – whether evidence of costs of obtaining certification

Domestic Building Contracts Act 2000, ss 18, 33, 90, 91

Ogle v Comboyoro Investments Pty Ltd (1976) 136 CLR 444
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
White and Carter (Councils) Ltd v McGregor [1962] AC 413
Hill v Canberra Holdings Ltd (1995) 122 FLR 434
Vitol SA v Norelf Ltd (The Santa Clara) [1996] AC 800
Foran v Wight (1989) 168 CLR 385

Rapid Roofing Pty Ltd v Natalise Pty Ltd [2007] QCA 94
Qline Interiors Pty Ltd v Jezer Construction Group Pty Ltd [2002] QSC 088
Décor Blinds Gold Coast Pty Ltd v Décor Blinds Australia Pty Ltd [2004] QSC 055

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Hayes appeared on his own behalf
RESPONDENT: Mr Sheenmar appeared for himself and Amarjeet Sheenmar

REASONS FOR DECISION

  1. Paul Hayes, a builder, entered into a domestic building contract with Jang Sheenmar and Amarjeet Sheenmar on 8 September 2008.  The contract was for the construction of a two story brick veneer house on vacant land at 4 Apulia Place, Bridgeman Downs.  The contract price was $485,000.  The contract is regulated by the Domestic Building Contracts Act 2000.

  2. Mr Hayes applied to the tribunal seeking orders for the payment to him of $48,358.80 for works done under the contract payable either as damages arising from the breach of the contract by the Sheenmars; under section 91 of the Domestic Building Contracts Act 2000; or on a quantum meruit claim, together with interest and costs.

  3. The Sheenmars’ response filed in the tribunal seeks a declaration that that the contract was validly terminated by them and seeks damages arising from the termination, in particular, the costs of obtaining final certification for the house, and for rectification of defective work.  At the hearing, Mr Sheenmar stated that the outcome they seek is for Mr Hayes to provide the final certificate…

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Details
Case
[2012] QCAT 149
Decision Date

CaseChat Overview and Summary

Hayes v Sheenmar is a case concerning the final payment under a building contract. The dispute arose between the home owners, the applicants, and the builder, the respondents. The applicants sought to terminate the contract due to alleged defects and non-compliance with building regulations. The case was heard in the Supreme Court of Victoria.

The primary legal issues were whether the home owners validly terminated the contract, if the builder by conduct elected to terminate the contract, and whether the builder was entitled to the final claim. Further, the court had to determine if the home owners were entitled to recover for damages and whether the costs of rectification and certification were accrued rights under the contract at the time their wrongful repudiation was accepted by the builder. Lastly, the court had to consider whether evidence of the costs of obtaining certification was admissible.

The court found that the home owners had validly terminated the contract due to the builder's failure to comply with the building regulations and the presence of defects. The builder had elected to terminate the contract by conduct, and the home owners were entitled to recover for damages. The costs of rectification and certification were accrued rights under the contract at the time the builder accepted the wrongful repudiation. The evidence of the costs of obtaining certification was admissible, and the applicants were entitled to recover those costs.

In summary, the court ordered the respondents to pay the applicants the sum of $27,939.80 within 21 days of the orders. Additionally, the applicants were to provide the respondents with copies of all Form 16 certificates and the plumbing sustainability certificate within the specified timeframes.

Orders

Orders of the court

1. That the respondents pay to the applicant the sum of $27,939.80 within 21 days of these orders.

2. That the applicant give to the respondents copies of all of the Form 16 certificates obtained during the certification process which he has in his possession power or control within 14 days, together with the plumbing sustainability certificate within 42 days of these orders.

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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