Hodges v Queensland Building Services Authority - [2013] QCAT 576

CITATION:

Hodges v Queensland Building Services Authority [2013] QCAT 576

PARTIES:	David Hodges Carole Hodges (Applicants)
v
Queensland Building Services Authority (First Respondent) Vapino Pty Ltd (Second Respondent)

APPLICATION NUMBER:

GAR130-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

14 October 2013

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

1 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority dated 15 March 2013 is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW- QUEENSLAND BUILDING SERVICES AUTHORITY-STATUTORY INSURANCE SCHEME- where homeowners claim incomplete building work- where policy provides for claim under insurance scheme- where insured has properly terminated the contract- where inconsistency in contract about construction/completion period- whether homeowners validly terminated contract- whether builder validly terminated contract-whether extrinsic evidence relevant

Queensland Civil and Administrative Tribunal Act 2009 ss 20, 24
Domestic Building Contracts Act 2000 ss 18, 33, 90, Schedule

Amalgamated Television Services Pty Ltd v Television Corporation Limited (1969)123 CLR 648.
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451.
Allen v Carbone (1975) 132 CLR 528.
Gordon v MacGregor (1909) 8 CLR 316.
Prenn v Simmonds [1971] 1 WLR 1381.
James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Limited [1970] AC 583
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Amann Aviation Pty Ltd v Commonwealth (1988) 100 ALR 267
Foran v Wight (1989) 168 CLR 385.
Ogle v Comboyoro Investments Pty Ltd (1976) CLR 444
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Chelbrooke Homes Pty Ltd v Russell [2011] QCAT 286

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

David Hodges and Carole Hodges represented themselves.

FIRST RESPONDENT:

SECOND RESPONDENT:

Ms Kellie Lowe, in-house legal officer, represented the Queensland Building Services Authority

Mr Gary Jasinski and Mr Stuart Woodall, directors, represented Vapino Pty Ltd.

REASONS FOR DECISION

On 8 December 2011, David and Carole Hodges (the homeowners) entered into a domestic building contract with Vapino Pty Ltd (the builder) for the construction of a residential dwelling on their land at Lot 963 Fletcher Crescent, Pacific Pines for $275,000. It is not controversial that the contract is a regulated contract under the Domestic Building Contracts Act 2000 (the DBC Act).
Both the homeowners and the builder later purported to terminate the contract. The homeowners purported to terminate on 12 December 2012 and subsequently on 15 March 2013 under section 90 of the DBC Act. The builder purported to terminate on 19 December 2012 by accepting the homeowner’s alleged repudiation on 12 December.
The homeowners made a claim on the statutory insurance scheme through the Queensland Building Services Authority (QBSA) for incomplete work. It is uncontroversial that the applicable version of the QBSA Insurance Policy (the Policy) is edition 8. It relevantly provides for insurance cover for loss incurred by a homeowner, in the event that a contractor fails to complete residential construction work.[1] Liability for payment for non-completion only arises for fixed price contracts…

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: [2013] QCAT 576
Decision Date

CaseChat Overview and Summary

David and Carole Hodges entered into a building contract with Vapino Pty Ltd for the construction of a residential dwelling on 8 December 2011. The contract was a regulated contract under the Domestic Building Contracts Act 2000 (the DBC Act). Both parties purported to terminate the contract. The homeowners purported to terminate on 12 December 2012 and subsequently on 15 March 2013 under section 90 of the DBC Act. The builder purported to terminate on 19 December 2012 by accepting the homeowner’s alleged repudiation on 12 December. The homeowners made a claim on the statutory insurance scheme through the Queensland Building Services Authority (QBSA) for incomplete work. The insurance claim was refused on the basis of the QBSA’s conclusion that the homeowners did not lawfully terminate the contract. The homeowners now seek review of the QBSA decision.

The legal issues for the Tribunal to decide were: whether the homeowners validly terminated the contract, whether the builder validly terminated the contract, and whether extrinsic evidence was relevant. The Tribunal found that the completion period under the contract was 237 days, not 179 days as the homeowners contended. The homeowners had purported to terminate the contract on 12 December 2012, before they were entitled to under s 90 of the DBC Act. Their termination was therefore invalid. However, the homeowners' wrongful termination did amount to a repudiation of the contract, which entitled the builder to terminate it at common law. The builder validly terminated the contract on 19 December 2012. The homeowners’ second purported termination on 15 March 2013 was also invalid.

The Tribunal made orders confirming the QBSA’s decision to reject the homeowners' claim. The Tribunal found that the homeowners did not properly terminate the contract. The contract was validly terminated by the builder. Under the insurance policy, the QBSA is only liable to pay for loss for non-completion when the homeowner properly terminates the contract with the contractor. Since the homeowners did not properly terminate, the QBSA decision to reject the claim was the correct and preferable decision.

Orders