HK Developments Pty Ltd v Carter - [2014] QCAT 330

CITATION:

HK Developments Pty Ltd v Carter [2014] QCAT 330

PARTIES:	HK Developments Pty Ltd (Applicant)
v
Nathan Carter (Respondent)

APPLICATION NUMBER:

BDL056-11

MATTER TYPE:

Building matters

HEARING DATE:

11 – 2 September 2013
15 – 17 April 2014

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

14 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Nathan Carter pay HK Developments Pty Ltd the sum of $79,841.45 in full and final satisfaction of this matter by 31 July 2014.

2. HK Developments Pty Ltd file in the Tribunal two copies and give to Nathan Carter one copy of any application with any written submissions and supporting documentation in relation to costs by 25 July 2014.

3. Nathan Carter file in the Tribunal two copies and give to HK Developments Pty Ltd one copy of any submissions and supporting documentation in response to any application for costs by 8 August 2014.

4. HK Developments Pty Ltd file in the Tribunal two copies and give to Nathan Carter one copy of any submissions in reply by 15 August 2014.

5. The application for costs will be determined by the Tribunal on the papers without an oral hearing not before 15 August 2014.

CATCHWORDS:

BUILDING – where the builder issued a progress claim for payment – where owner failed to pay the progress claim – where builder suspended the works – where owner purported to terminate the contract – where the builder seeks final payment for completed building work and variations – where owner alleged practical completion not reached

Domestic Building Contracts Act 2000 (Qld) ss 67, 80, 84
Queensland Building and Construction Commission Act 1991 (Qld) s 77

Smyth (Ross T) & Co Ltd v Bailey, Son & Co [1940] All ER 60
Larratt v Bankers and Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 followed

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Represented by Mr S Healy and Ms H Kayra-Healy

RESPONDENT:

In person

REASONS FOR DECISION

HK Developments filed an application in March 2011 seeking final payment in a building contract between itself and Nathan Carter for a home built at Springfield. HK Developments seeks a payment of $67,000 plus damages of $21,793.06 and interest.
Nathan Carter is a concreter who runs his own business and he contributed to the building of this house in that capacity. Mr Carter countered, applying for rectification costs of $8,865.80, additional costs of $104,159.00, damages of $113,024.80 plus liquidated damages of $12,900.00, a declaration as to the termination of the contract, certificates of compliance for the house, interest and costs.
The contract between the parties was dated 7 February 2010 for a contract price of $670,000 and work commenced in March 2010. HK Developments issued a notice purporting to suspend the contract in February 2011. Nathan Carter disputes any monies owed under the contact saying practical completion had not been reached. Mr Carter purported to terminate the contact himself after the suspension notice had been received.

ISSUES

The agreed issues are as follows:

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.

Continue reading HK Developments Pty Ltd v Carter

Details

AGLC: HK Developments Pty Ltd v Carter [2014] QCAT 330
Case: [2014] QCAT 330
Decision Date

CaseChat Overview and Summary

HK Developments Pty Ltd applied for payment in relation to a building contract for a home built at Springfield. Nathan Carter, the owner, disputed owing any monies under the contract. The agreed issues before the Tribunal were whether HK Developments lawfully suspended the building contract, whether Mr Carter lawfully terminated the contract, and what the impact of the termination or suspension was on the contract. The Tribunal found HK Developments lawfully suspended the contract, that Mr Carter did not lawfully terminate the contract and that as a result, HK Developments was owed monies under the contract. The Tribunal found the amount owing was $79,841.45. Directions were made in relation to the application for costs.

Orders