Hodges v Queensland Building and Construction Commission & Vapino Pty Ltd
[2014] QCATA 123
•15 May 2014
| CITATION: | Hodges v Queensland Building and Construction Commission & Vapino Pty Ltd [2014] QCATA 123 |
| PARTIES: | David Hodges Carole Hodges (Applicants/Appellants) |
| v | |
| Queensland Building and Construction Commission Vapino Pty Ltd (Respondents) |
| APPLICATION NUMBER: | APL527-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judicial Member Cullinane |
| DELIVERED ON: | 15 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – INTERPRETATION OF CONTRACTS – where contract for building work contains conflicting provisions regarding length of construction period – where tribunal found that the correct interpretation was that which gave commercial efficacy to the contract – where findings that the conflicting provisions were the result of error – whether grounds for leave to appeal Domestic Building Contracts Act 2009 (Qld),s 18, s 33, s 90 Glenwood Properties Pty Ltd v Delmoss Pty Ltd (1986) 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
The applicants seek leave to appeal against a determination of the Tribunal delivered on 1 November 2013. By its decision, the Tribunal affirmed the decision of the first respondent rejecting a claim by the applicants as homeowners pursuant to the statutory insurance scheme provided for in the Domestic Building Contracts Act 2000 (Qld) (‘the Act’).
The principles which govern the grant of leave have been stated in many cases. Some reason for the grant of leave must be shown. Generally speaking there will be leave if the matter raises a question of general importance or it is necessary to correct an injustice or there are reasonably arguable prospects of establishing that the primary decision maker erred. See Glenwood Properties Pty Ltd v Delmoss Pty Ltd.[1]
[1](1986) 2 Qd R 388.
The parties entered into a contract dated 8 December 2011 pursuant to which the second respondent agreed to construct a dwelling on the applicant homeowners land. The contract was a regulated contract under the Act.
The applicants, by their notice, raise three grounds which would be advanced if leave were granted.
The first and primary ground concerned the construction of the contract and particularly the provisions regarding the construction period. The question arises because of conflicting provisions in the contract.
The principles governing the construction of contracts generally and, in particular, where there are ambiguities conflicting provisions, are well settled. The Tribunal’s judgment refers to the leading cases on those subjects. I agree that in accordance with those principles, recourse to extrinsic evidence is not, in this case, permissible.
The Schedule provides, in Item 8, for a construction period of 179 days. In Item 10, it provides for Practical Completion to be 179 days from commencement.
On the other hand, Part C of the Appendix to the contract provides for a construction period of 237 days.
This is shown as being made up by a number of components:
a)Allowance for actual construction period not including delays 179 days
b)Calculable delays:
i)Delay as a result of inclement weather 7 days
ii)non-working days (Saturday Sundays Public Holidays 51 days.
THE CONSTRUCTION PERIOD (IN DAYS) INCLUDING DELAYS 237 days.
I mention here that there was a variation agreed upon which would add a further two days to the completion date. This is not of any great significance to the issue here.
Section 18 of the Act provides for the adjustment of the stated completion period to take account of any additional days required to be allowed for carrying out the subject work.
Section 33 provides for calculable delays. The contractor must make allowance for the delays arising from the factors specified in s 33(2), and this allowance must be reflected in the contract. These appear in Part C of the appendix set out above.
The applicants contend that the matter is determined by Items 8 and 10 in the Schedule to the contract. The period of 179 days must, on this approach, include the allowances referred.
Such an approach would give no effect to what is contained in Appendix C and the statutory provisions compelling the allowances reflected therein.
The Tribunal rejected this argument holding that the relevant period is 237 days.
In my view, the Tribunal was correct. The conclusion reached is in my view the only way in which commercial efficacy can be given to the contract. To use the words of the Tribunal: there is “no other sensible or logical interpretation.”
It is likely, as the Tribunal found, that the discrepancy arose through error.
The applicants purported to terminate the contract by notice of 12 December 2012, pursuant to the provisions of s 90 of the Act, which provides for the circumstances in which a homeowner can terminate a contract where the work has not been completed within the period provided for.
The second respondent gave notice on 19 December 2012, terminating the contract on the ground that the applicants’ wrongful termination amounted to repudiation of the contract.
This was effective to terminate the contract. See Ogle v Comboyuro for the rights of a party to bring a contract to an end in such circumstances.[2]
[2]Ogle v Comboyuro Investments Pty Ltd (1976)136 CLR 444.
It was not ultimately in contention that the first respondent retained its common law rights in this regard.
Although Ground 3 suggests otherwise, paragraph 117 of the outline of the applicants seems to concede this.
Ground 2 raises a number of matters relating to the calculation of the adjustment necessary to allow for the delays provided for in the Act.
Here the parties made allowance for the relevant days in the contract.
I am inclined to think that the first respondent is correct in the submission that Ground 2 is based on a misunderstanding. On my understanding, s 18(7) does not have any application in this matter.
The matters raised in this ground do not seem to have been ventilated before the Tribunal.
The result is that the applicants are not entitled to maintain the claim they have sought to make under the statutory policy.
The matter involves the application of settled principles to a particular set of facts and does not justify the grant of leave.
Leave to appeal refused.
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