| CITATION: | Henley Properties (Qld) Pty Ltd v Salam & Anor [2014] QCAT 436 |
| PARTIES: | Henley Properties (Qld) Pty Ltd (Applicant) |
| v | |
| Muhammad Salam Seowmee Salam (Respondents) |
| APPLICATION NUMBER: | BDL122-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 20, 21 March 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member McLean Williams |
| DELIVERED ON: | 3 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondents are to pay the Applicant the sum of $17,779.53 within 21 days of the date of these orders. 2. The parties are to file written submissions on the question of costs within 14 days of the date of these orders in response to those matters identified in paragraph [47] of the reasons for decision. 3. The question of any entitlement to costs will then be determined on the papers. |
| CATCHWORDS: | Building matters - domestic building contract to construct a new home for $632,179 - circumstances wherein additional variations requested by the home owners and undertaken by the builder to the value of $21,417, yet unpaid by the home owners - circumstances wherein written variation documents sent by builder to home owners prior to commencement of any variation works, and these being signed and returned to builder duly authorising the variations prior to the variations commencing – circumstances wherein builder did not itself sign the variations documents, contrary to Domestic Building Contracts Act 2000, s 82(a) – and home owners did not specifically initial the provision in the variation documents stating when the increase is to be paid, per Domestic Building Contracts Act 2000, s 81(5) – question as to whether in circumstances of the overall signing by the home owners of the variation documents there had been a waiver of the benefit to the home owners of s 82(a) and/or s 81(5) – question of entitlement of builder to payment for variations under s 84(4) of the Domestic Building Contracts Act 2000 - circumstances as to whether either exceptional circumstances or unreasonable hardship arising, per s 84(4)(a)(i) and (ii) - builder’s entitlement to default interest and indemnity costs under the contract in circumstances where relief obtained under the statute, not the contract. Domestic Building Contracts Act 2000 (Qld), s 79(5), s 80(2)(g), s 81(5), s 82(a), s 84(2), s 84(4), s 93(1)(a) Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Steven Hogg of counsel, instructed by Mills Oakley Lawyers |
| RESPONDENT: | Mr Russell Ensby, solicitor, of CBP Lawyers |
REASONS FOR DECISION
The Scope of these proceedings:
The Applicant…
Keep reading for free
Create a free CaseChat account to read Henley Properties (Qld) Pty Ltd v Salam and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] QCAT 436
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the builder could claim payment for the variations despite not signing the variation documents as required by the Domestic Building Contracts Act 2000, and whether the homeowners had waived their rights under the statute by signing the documents. Furthermore, the court had to determine whether there were exceptional circumstances or unreasonable hardship justifying the builder's entitlement to payment under the Act, and whether the builder could claim default interest and indemnity costs under the contract, given that the relief was ultimately obtained under the statute.
The Tribunal found that the statutory requirements for signing the variation documents were not strictly adhered to by either party. However, given the homeowners had signed the documents and the builder had commenced work based on these, the Tribunal concluded that there had been an implied waiver of the statutory requirements. Despite this, the Tribunal held that the builder was entitled to payment for the variations due to the homeowners' implied acceptance of the variations and the builder's substantial performance. The Tribunal did not find exceptional circumstances or unreasonable hardship, but it did rule that the builder could claim default interest and indemnity costs under the contract terms.
The Tribunal ordered that the homeowners pay Henley Properties $17,779.53 within 21 days, and directed the parties to submit written submissions on the question of costs within 14 days. The final determination of costs would then be made based on the submissions provided.
Orders
Orders of the court
1. The Respondents are to pay the Applicant the sum of $17,779.53 within 21 days of the date of these orders.
2. The parties are to file written submissions on the question of costs within 14 days of the date of these orders in response to those matters identified in paragraph [47] of the reasons for decision.
3. The question of any entitlement to costs will then be determined on the papers.
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
Full text does not contain this section.