Hoppen v Stoneridge Constructions Pty Ltd

Case [2024] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION:

Hoppen v Stoneridge Constructions Pty Ltd [2024] QDC 2

PARTIES:

TIMOTHY JOEL HOPPEN

and

ELISE GABRIELLE HOPPEN

(plaintiff)

v

STONERIDGE CONSTRUCTIONS PTY LTD

ACN 609 318 621

(defendant)

FILE NO:

BD 2885 of 2022

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Maroochydore Magistrates Court

DELIVERED ON:

2 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2023, 31 May 2023, 1 June 2023.

JUDGE:

Byrne KC DCJ

ORDER:

1.    The plaintiff’s claim is dismissed.

2.    I will hear the parties as to costs.
CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – BUILDING CONTRACTS – CONSTRUCTION AND INTERPRETATION - where the defendant entered into a contract to construct a home for the plaintiff – where the defendant purported to terminate the contract - where the plaintiff seeks part of the deposit paid and damages for breach of the contract– where the defendant agreed under the contract that it must promptly take all reasonable steps to obtain the necessary building approval -  meaning of that term in the contract - where the plaintiff made changes to the plans at various times after signing the contracts – whether those changes were of such a nature as to justify delaying the application for a building approval – whether the lodging of material for a building approval was a reasonable step that should have been taken earlier than it was.

DAMAGES - MEASURE OF – where the plaintiff sought damages under a number of heads – where the plaintiff filed a schedule of damages - where limited evidence was adduced at trial under one of those heads and where no evidence was adduced under the others – where no agreement had been reached between the parties as to the quantum of any of the heads of damage in the event of liability being established – whether the lack of notified objection to the contents of the schedule of damages should be taken as a deemed admission.

LEGISLATION:

Uniform Civil Procedure Rules 1999.

CASES:

Burton v Police (2004) 88 SASR 152

Fairmont Group Pty Ltd v Moreton Bay Regional Council [2018] QPEC 20
Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 81

Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
COUNSEL:

Mr. K. Pearson for the plaintiff.

Mr. N.M. Cooke for the defendant.
SOLICITORS:

Hawkes Lawyers for the plaintiff.

Wheldon & Associates for the defendant.

Introduction

  1. On 13 July 2021, the plaintiff commenced proceedings in the Magistrates Court by way of a Claim and Statement of Claim for the refund of part of a deposit paid under a building contract and damages for breach of the same contract, together with interest and costs.  On 31 October 2022 the proceedings were transferred to this Court by consent, apparently when it was appreciated that the quantum sought exceeded the jurisdiction of the Magistrates Court. The quantum had not been fully pleaded in the originating process.

  2. The proceedings had been commenced against an entity…

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Details
AGLC
Hoppen v Stoneridge Constructions Pty Ltd [2024] QDC 2
Case
[2024] QDC 2
Decision Date

CaseChat Overview and Summary

The case of Hoppen v Stoneridge Constructions Pty Ltd involved a dispute between the plaintiff, Timothy Hoppen, and the defendant, Stoneridge Constructions Pty Ltd, concerning a contract for the construction of a home. The plaintiff alleged that the defendant breached the contract by failing to promptly obtain the necessary building approval and sought part of the deposit paid and damages for breach of the contract. The defendant argued that it was not in breach of the contract and that it was entitled to terminate the contract under clause 5.2 due to the plaintiff's failure to obtain a development application. The court had to determine whether the defendant breached the contract by not lodging the application for the building approval until April 2021 and whether the termination of the contract was valid. The court also had to consider the measure of damages sought by the plaintiff. The court found that the defendant was not in breach of the contract by not lodging the application for the building approval until April 2021, as the step to lodge the application was objectively reasonable and had to be promptly taken. The court also found that the termination of the contract was valid under clause 5.2, as the plaintiff was responsible for obtaining the development application. The court dismissed the plaintiff's claim and will hear the parties as to costs.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 9 June 2021, the defendant refunded what it asserts is the unexpended portion of the deposit paid.[22] The plaintiff has taken issue with two items retained from the deposit totalling $3,480, namely an invoice from Hytek Framing Pty Ltd for $1,980 dated 27 April 2021 and an invoice from G.J. Gardiner for “overheads” for $1,500.The oral evidence[22]Amended Defence at para 12 and Ex 2, p 21. The Statement of Claim asserted that the monies were paid on 21 May 2021. Although the Reply, broadly, “denies and rejects the allegations” in the Amended Defence at para 12, no evidence was led to contradict the date of 9 June 2021.Timothy Hoppen The Hoppens decided to relocate from Victoria to Queensland and found what they believed was a suitable block of land on which to build a large, custom-built dwelling. Mr Hoppen was aware that there were planning overlays applicable to the property, but, having made his own enquiries, he considered that there was an area at the front of the property to which they did not apply. (None of the information that led him to that conclusion was admitted as proof of the fact in the course of the trial.) They decided to use G.J. Gardiner as it was a reputable company. They first dealt with a designer named Steve Reid during the design phase. During that time, about June or July 2020, they sold a property in Victoria and moved to Queensland. They were living with Mr Hoppen’s wife’s foster parents, but the conditions were cramped and not ideal. When the design phase was finished, they were handed over to Deborah Daly, who was the contract manager, and also dealt with Andrew Rijken. From that time there were delays. Mr Hoppen tried to keep on top of things, “making sure I was sort of a squeaky wheel”.[23][23]Ts 3-27, ll 38-39. He thought that a BA had been given prior to receipt of the certifier’s letter of 12 April 2021, based on what Andrew had previously told him would shortly be undertaken on the subject block. It was in around February or March 2021, that Andrew told him by email that they had groundworks booked and a slab was to be poured shortly. In the week that he received the letter from the certifier they had a meeting about electrical matters and made “selections”. He rang the certifier the same day he received the letter to tell him that he had paperwork from Council, and that he did not need any approvals. He sent the certifier that paperwork. (In fact, he seems to have sent an email from a State Government Department which did not relate to Council approvals.[24])[24]Exhibit 5, p 443. On 16 April 2021, he again rang the certifier to see if the issue had been clarified with Council. When he was told by the certifier that it was still an issue, he said to go ahead with the DA. The plaintiff currently lives on the subject block in a six-bedroom, three-bathroom house that was moved onto that block. He testified that he engaged a certifier who looked at the paperwork Mr Hoppen provided and issued a BA without a DA being required. (There was no independent proof of that tendered at trial.[25]) [25]Although it was said that the document at Ex. 1, tab 20 was correspondence from that certifier to that effect, the form in which it was provided makes it incomprehensible. Although Counsel said a proper form of the document would be provided (Ts 3-27, ll 30-48), it has not been.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The defendant’s submissions can be distilled into the following:1.There is no acceptable evidence of an unconditional finance approval having been given to the defendant.[47] Further, the document in evidence shows that any offer required acceptance by 21 December 2020, and there is no evidence of the offer having been accepted.2.While the defendant was capable of performing this custom build using the G.J. Gardiner system, the reasonableness of the time taken to apply for BA must be seen in the light of the plan changes and the complications arising from the nature of this particular custom-build project, as well as its other workload.3.The rights under clause 5.2 of the contract are triggered merely by the passing of the period of 55 business days without a relevant approval having been obtained. What happened around the cut and fill in December 2020 does not affect those rights. The period passed in February 2021.4.There is no doubt that a DA was required. The only person who thought otherwise was the plaintiff. The plaintiff was responsible for obtaining that DA under the contract.5.As a result, on the clear words of the contract, the defendant was entitled to terminate.6.The retention of the two sums from the deposit was justified in the circumstances.[47]Exhibit 1, tab 25.Consideration – liability The initial issue for determination is whether the defendant was in breach of the contract by not lodging the application for the BA until April 2021. If it was, the purported termination under clause 5.2 is of no moment for these purposes because the breach had already occurred. If the defendant was not in breach of the contract, the consequential issue is whether the termination was of effect. On that approach, the functional provision to be initially considered is clause 5.1. Although both parties have treated the issue as being whether the failure to lodge the application for the BA until April 2021 was unreasonable, that is a shorthand approach to what must in fact be proved by the plaintiff. Strictly, the contract imposed on the defendant the obligation to “promptly take all reasonable steps” to obtain the BA. I have not been provided with, nor located, any authority as to the meaning of that phrase, and it is not defined in the contract itself. In my view, it delineates between the concept of promptness and that of a reasonable step. In my view, a step is reasonable once it can be objectively seen to be a step that is likely to be properly taken. For example, a step would not be a reasonable step if it was futile to take it. This focuses attention on the reasonableness of the step and not the reasonable ability to take the step. If it were otherwise, the word “promptly” may become meaningless. Once it is objectively reasonable to take that step, it must be promptly taken. Accordingly, I do not accept the defendant’s submission that the amount of other work that the defendant was contracted to undertake at the time is a relevant consideration.