Instyle Homes Qld Pty Ltd v Middler - [2017] QCAT 376

CITATION:	Instyle Homes Qld Pty Ltd v Middler & Anor [2017] QCAT 376
Instyle Homes Qld Pty Ltd (Applicant)
v
Ryan Edward Middler (First Respondent) Hayley Anne Middler (Second Respondent)
APPLICATION NUMBER:	BDL214-16
MATTER TYPE:	Building matters
HEARING DATE:	11 and 12 September 2017
HEARD AT:	Brisbane
DECISION OF:	Member Howe
DELIVERED ON:	8 November 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The applicant’s claim is dismissed. 2. The respondents’ counter application is dismissed. 3. The parties file and serve submissions as to costs within 7 days of the date of this order and each file and serve any submissions in reply within 7 days thereafter.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – where progress payment claimed – whether builder entitled to make claim – where work not completed before claim made CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – whether work defective or incomplete – when incomplete work becomes defective work CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PEFORMANCE OF WORK – DAMAGES – stages contract – entire contract – owners giving credit for cost of work under contract – no loss to owners Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 21, s 22, s 23, Building Regulation 2006 (Qld), s 27(2), s 27(3), s 27(4) Amann Aviation Pty Ltd v Commonwealth (1990) 174 CLR 64; [1991] HCA 54 Hoenig v Isaacs [1952] 2 All ER 176 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 476 McGibbo Pty Ltd v Willex Projects Pty Ltd [2013] QDC 313 Robinson v Harman (1848) 1 Exch 850 Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18 Tan Hung Nguyen Design Homes Pty Ltd [2004] NSWCA 178 Thompson Residential Pty Ltd v Hart & Anor[2014] QDC 132
REPRESENTATIVES:
APPLICANT:	Represented by R M De Luchi of Counsel instructed by Small Myers Hughes, Solicitors
RESPONDENT:	Ryan Edward Middler appeared on his own behalf and represented both respondents

REASONS FOR DECISION

Mr and Mrs Middler engaged the applicant builder to build them a home at Upper Coomera. They entered into an older form Queensland Building and Construction Commission (QBCC) New Home Construction Contract[1] involving designated stages of construction for the build at a price of $455,000. The contract was signed on 11 August 2015 and work started in September 2015. The builder invoiced the owners for the slab stage and frame stage respectively on 1 February 2016 and 15 March 2016.
[1]Version November 2013.
The owners paid the progress claim for the slab stage and paid $20,000 of the claim of $68,250 for the frame stage when the owners became concerned about the workmanship of the job and particularly that the framing stage had not in fact been achieved.
The owners sent a letter entitled Notice of Default to the builder on

7 April 2016 listing numerous items claimed to be defective in respect of both slab and frame stages and requiring the builder to remedy them within…

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: [2017] QCAT 376
Decision Date: 8 November 2017

CaseChat Overview and Summary

In the case of Instyle Homes Qld Pty Ltd v Middler, the parties were engaged in a dispute over a building contract. The builder, Instyle Homes Qld Pty Ltd, claimed progress payments from the homeowner, Middler. Middler disputed these claims, alleging that the work was defective or incomplete and that he had suffered no loss due to the builder’s performance. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issues for the court to determine were whether the builder was entitled to make a progress payment claim when the work had not been completed, and whether any incomplete work became defective work. Additionally, the court had to consider whether the homeowner had suffered any loss due to the builder's performance of the work. The court also needed to address whether the homeowner's giving of credit for the cost of the work under the contract affected the builder's entitlement to payment.

The court examined the terms of the contract, the nature of the work completed, and the homeowner's position regarding the acceptance of the work. The tribunal found that the builder had not completed the work before making the claim for payment, and therefore was not entitled to the progress payment. The court also determined that the incomplete work had not become defective work, and that the homeowner had not suffered any loss as a result of the builder's performance. Given that the homeowner had given credit for the cost of the work under the contract, the court found that the builder was not entitled to any further payment.

The tribunal dismissed both the builder's claim and the homeowner's counter-application. The parties were ordered to file and serve submissions regarding costs within a specified timeframe. This decision highlights the importance of ensuring that all contractual obligations are met before making progress payment claims, and the consequences for builders who fail to do so.

Orders

Orders of the court

1. The applicant’s claim is dismissed.

2. The respondents’ counter application is dismissed.

3. The parties file and serve submissions as to costs within 7 days of the date of this order and each file and serve any submissions in reply within 7 days thereafter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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