Henley Properties (Qld) Pty Ltd v Salam - [2023] QCAT 420

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Henley Properties (Qld) Pty Ltd v Salam [2023] QCAT 420

PARTIES:

HENLEY PROPERTIES (QLD) PTY LTD

(applicant)

v

MUHAMMAD SALAM AND SEOWMEE SALAM

(respondent)

APPLICATION NO/S:

BDL122-13

MATTER TYPE:

Building matters

DELIVERED ON:

13 October 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

1.     The Application is dismissed;

2.     The Counter-application is allowed;

3.     The Applicant pay the Respondents the sum of $6,157.89 by 4:00 pm 24 November 2023;

4.     The parties to file any written submissions in relation to the question of costs by 17 November 2023;

5.     The question of any entitlement to costs will be determined on the papers.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS – where variation document not compliant with Domestic Building Contracts Act 2000, s 82(a) not signed by builder and home owners did not specifically initial the provision in the variation documents stating when the increase is to be paid pursuant to s 81(5) Domestic Building Contracts Act 2000, s 81(5) –whether the homeowners initials at foot of page complied. Counter claim by homeowners for defective work

Building Act 1975 (Qld)

Domestic Building and Construction Act 2000 (Qld)
Queensland Building Services Authority Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act2009 (Qld)

Henley Properties (Qld) Pty Ltd v Salam [2015] QCAT 148

Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This matter has a long and chequered history.
The Application for domestic building dispute was heard by the Tribunal on 20 and 21 March 2014. A decision was delivered on 3 September 2014.[1] Both parties were successful. The builder recovered $21,417.00 for variations and Muhammad Salam and Seowmee Salam (‘the homeowners’) recovered on their cross claim $3,637.47 for defective work. That amount was set off against the cost of variations resulting in a decision in favour of the builder of $17,779.53.
[1]Henley Properties (Qld) Pty Ltd v Salam [2015] QCAT 148.
The homeowners successfully appealed the decision setting aside the decision.[2] The Appeal Tribunal allowed the appeal and ordered, pursuant to s. 146 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) (the Act) that the matter be remitted back to the tribunal for reconsideration.
[2]Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118.
The Appeals Tribunal found that application by the builder for relief pursuant to s 84(4) of the Domestic Building Contracts Act 2000 (Qld) (the DBC Act) was made after the evidence was finished on the second day and that the homeowners were denied natural justice in not being able to adduce evidence or cross-examine the builder on the issue. Section 84(4) confers a discretion upon QCAT to approve the recovery of an amount by…

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: [2023] QCAT 420
Decision Date: 13 October 2023

CaseChat Overview and Summary

The matter of Henley Properties (Qld) Pty Ltd v Salam came before the court to address issues arising from a building contract. Henley Properties, the builder, engaged in a construction project with Salam, the homeowner. A dispute arose over variations made to the original contract and subsequent payments, as well as claims of defective workmanship by the homeowner. The court was tasked with determining whether the variation documents were compliant with the Domestic Building Contracts Act 2000 and whether the homeowners had properly acknowledged the timing of payment increases. Additionally, the homeowner sought compensation for the defective work.

The central legal issues before the court involved the interpretation and compliance of the variation documents with the statutory requirements of the Domestic Building Contracts Act 2000. Specifically, the court needed to determine if the variation documents were signed by the builder and if the homeowners had specifically initialled the provision indicating when the increased payment was to be made. Furthermore, the court had to assess whether the homeowners' initials at the bottom of the page complied with the statutory requirements, and whether the homeowner's counter claim for defective work was substantiated.

The court found that the variation documents were not properly executed as they did not bear the builder's signature, contrary to section 82(a) of the Act. Additionally, the homeowners had not specifically initialled the provision in the variation documents that detailed the timing of the increased payment as required by section 81(5) of the Act. The court ruled that the initials at the foot of the page did not suffice to meet the statutory requirements. Regarding the counter claim, the court determined that the homeowner had provided sufficient evidence of defective work, warranting compensation. Consequently, the court dismissed the builder's application and allowed the homeowner's counter claim.

The court ordered that the builder pay the homeowner $6,157.89 by 4:00 pm on 24 November 2023. The parties were instructed to submit written submissions on the issue of costs by 17 November 2023, with the final determination of any entitlement to costs to be made based on the submitted papers. This ruling underscores the importance of strict compliance with statutory requirements in building contracts to avoid disputes and ensure proper recourse for homeowners.

Orders

Orders of the court

1. The Application is dismissed;

2. The Counter-application is allowed;

3. The Applicant pay the Respondents the sum of $6,157.89 by 4:00 pm 24 November 2023;

4. The parties to file any written submissions in relation to the question of costs by 17 November 2023;

5. The question of any entitlement to costs will be determined on the papers.

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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