Hookham v Queensland Building and Construction Commission - [2021] QCAT 246

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hookham v Queensland Building and Construction Commission & Ors [2021] QCAT 246

PARTIES: HUGH CHARLES HOOKHAM

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

MELISA LEANNE SPOOR

(respondent)

TREVOR ROBERT SPOOR

(respondent)

APPLICATION NO/S:

GAR367-17
GAR368-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 April 2021

HEARING DATES:

20 March 2021
21 March 2021

HEARD AT:

Mackay

DECISION OF:

Member Ellis

ORDERS:

1.       That the decision of the First Respondent dated 8 November 2017 that a domestic building contract had been validly terminated by the Second Respondents is set aside.

2.       It is declared that the contract entered into between the Applicant and Second Respondents on 3 February 2017 was not validly terminated by the Second Respondents.

3.       That the decision of the First Respondent dated 9 November 2017 that a domestic building contract had been validly terminated by the Second Respondents is set aside.

4.       It is declared that the contract entered into between the Applicant and Second Respondents on 22 May 2017 was not validly terminated by the Second Respondents.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – whether a building contract properly terminated – breach of contract by Owner – breach of contract by Contractor – termination notices – Master Builders Residential Building Contract

Queensland Building and Construction Commission Act 1991 s 86, s 87 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 24

Briginshaw v Briginshaw (1938) 60 CLR 336
Budge v JMK Building Pty Ltd [2018] QCAT 174
Byrnes v Jokona Pty Ltd [2002] FCA 41
Hoenig v Isaacs [1952] 2 All ER 176
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268

Zahedpur v Idameneo (No 123) Pty Ltd [2016] QCA 134

APPEARANCES & REPRESENTATION:

Applicant:

S McLennan, instructed by Kelly Legal

Respondents:

C Hill, in-house solicitor at Queensland Building and Construction Commission

MT De Waard, Macrossan & Amiet for Melisa Leanne Spoor and Trevor Robert Spoor

REASONS FOR DECISION

This is an Application by Mr Hugh Charles Hookham (the Applicant) commenced on 6 December 2017, such application being made pursuant to sections 86(1)(i) and 87 of the Queensland Building and Construction Commission Act 1991 (Qld). The Applicant seeks a review of two decisions made by the First Respondent, the Queensland Building and Construction Commission (QBCC), as follows:
(a)On 8 November 2017 the QBCC made a decision that a domestic building contract had been validly terminated having the consequence of allowing a claim for non-completion under the statutory insurance scheme. This decision related to a contract entered into between the Applicant and Second Respondents on 3 February 2017.
(b)By decision dated 9 November 2017 the QBCC made a decision that a domestic building contract had been validly terminated having the consequence of allowing a claim for non-completion under the statutory insurance scheme. This decision related to a…

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.

Keep reading for free

Create a free CaseChat account to read Hookham v Queensland Building and Construction Commission 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 246
Decision Date

CaseChat Overview and Summary

In this case, Mr Hugh Charles Hookham, a licensed builder, sought to challenge two decisions of the Queensland Building and Construction Commission (QBCC). The QBCC had determined that two domestic building contracts between Mr Hookham and the Spoors were validly terminated. The Applicant argued that the Spoors had not validly terminated the contracts in accordance with the terms of the contract or at common law. The Tribunal, in setting aside the decisions of the QBCC, found that the Spoors had effectively locked out the Applicant from the property, preventing him from remedying his defects. The Tribunal found that the Spoors did not have a valid common law right to terminate, particularly given the Applicant’s ability to remedy the defects, his positive attitude to resolving the dispute, and the fact that the Spoors had prevented him from remedying the defects. The Spoors were also found to have had knowledge of the presence of asbestos in the property, though the Tribunal found they were not under an obligation to inform the Applicant of that knowledge. The Tribunal found that the defects and incomplete works were not sufficient to provide the Spoors with a common law right to terminate. The Spoors had not demonstrated that the Applicant was repudiating the contract.

Orders