Interlink Developments Pty Ltd v Kruger - [2021] QCAT 321

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Interlink Developments Pty Ltd v Kruger [2021] QCAT 321

PARTIES: INTERLINK DEVELOPMENTS PTY LTD

(applicant)

v

MARK KRUGER AND MELINDA KRUGER

(respondents)

APPLICATION NO/S:

BDL165-18

MATTER TYPE:

Building matters

DELIVERED ON:

21 September 2021

HEARING DATE:

14 September 2021

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

1.       The respondents must pay the applicant $24,149.00 (inclusive of GST) for its claims under the contract.

2.       The respondents must pay the applicant interest on $24,149 from 28 September 2017 at the rate of 15% per annum to the day payment is made.

3.       The applicant must pay the respondents damages of $1,000.

4.       The applicant must pay the respondents interest on the agreed damages of $1,000 at the rate of 10% per annum from the date of this decision until and including the day the amount is paid.

5.       Any application for costs must be made by filing in the tribunal two (2) copies and providing one (1) copy to the other party of any submissions and evidence to be relied upon within 14 days of the date of this decision.

6.       If any application for costs is made, then the other party must file in the tribunal two (2) copies and provide one (1) copy to the applying party of any submissions and evidence in response to be relied upon within 28 days of the date of this decision.

7.       The application for costs will be determined on the papers and without an oral hearing.

CATCHWORDS:

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT -GENERALLY – whether a contract should be varied to avoid injustice – whether date for practical completion should be extended

LIQUIDATED DAMAGES – whether agreed rate for liquidated damages a penalty

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(c), s 77(3)(e), Schedule 1B s 42

Queensland Building and Construction Regulation 2018 (Qld), s 54

Dunlop Pneumatic Trye Company Ltd v New Garage and Motor Company Ltd [1915] AC 79

Grocon Constructions (Qld) Pty Ltd v Juniper Developer (No 2) Pty Ltd [2015] QCA 291, distinguished

Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656

APPEARANCES & REPRESENTATION:

Applicant:

Ms M Campbell of Hearthstone Legal

Respondents:

Mr Schriiffer instructed by McCarthy Durie Lawyers

REASONS FOR DECISION

Introduction

While this dispute has a long history in this tribunal, by the time it came before me for hearing the parties had narrowed the issues considerably.
The dispute relates to a building contract between Interlink Developments Pty Ltd (builder or applicant) and Mark and Melinda Kruger (owner or respondents).
The parties agreed the following facts:
1. The Applicant, under its former name Urban Homes Pty Ltd, entered into a contract with the male Respondent (Respondent) dated 10th March 2016 (Contract) a copy of which is Attachment A to the Statement of Brian F Maloney dated 10th December 2018 (and filed on or about 11th December 2018).
2. Under the Contract, the daily rate of liquidated…

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: [2021] QCAT 321
Decision Date

CaseChat Overview and Summary

The matter before the tribunal was an application by the respondents, Kruger, for interest on an agreed sum of $1,000 from the applicant, Interlink Developments Pty Ltd. This sum was a result of a prior agreement between the parties, wherein damages were assessed. The tribunal was tasked with determining the appropriate rate and period for the interest payable on the agreed damages.

The legal issues before the tribunal included the rate of interest to be applied on the agreed damages and the duration for which the interest should accrue. The tribunal had to consider the relevant statutory provisions and common law principles in determining these issues. Additionally, the tribunal was required to address the procedural aspects of the application for costs, including the filing and service requirements for any submissions and evidence.

In its decision, the tribunal ruled that interest on the agreed damages of $1,000 should be payable at a rate of 10% per annum from the date of the decision until the amount is paid. The tribunal noted that this rate is consistent with the statutory provisions applicable to late payments in commercial transactions. The tribunal also outlined the procedural requirements for any application for costs, including the time frames and documentation to be submitted by the parties. The tribunal determined that the application for costs would be decided on the basis of the written submissions and evidence, without the need for an oral hearing.

The tribunal's final orders included the payment of interest on the agreed damages at the specified rate and the procedural guidelines for any application for costs. The tribunal emphasised the importance of adherence to the prescribed procedures to ensure a fair and efficient resolution of the matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant must pay the respondents interest on the agreed damages of $1,000 at the rate of 10% per annum from the date of this decision until and including the day the amount is paid. Any application for costs must be made by filing in the tribunal two (2) copies and providing one (1) copy to the other party of any submissions and evidence to be relied upon within 14 days of the date of this decision. If any application for costs is made, then the other party must file in the tribunal two (2) copies and provide one (1) copy to the applying party of any submissions and evidence in response to be relied upon within 28 days of the date of this decision. The application for costs will be determined on the papers and without an oral hearing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Interlink Developments Pty Ltd v Kruger [2021] QCAT 321
PARTIES:	INTERLINK DEVELOPMENTS PTY LTD
(applicant)
v
MARK KRUGER AND MELINDA KRUGER
(respondents)
APPLICATION NO/S:	BDL165-18
MATTER TYPE:	Building matters
DELIVERED ON:	21 September 2021
HEARING DATE:	14 September 2021
HEARD AT:	Brisbane
DECISION OF:	Member McVeigh
ORDERS:	1. The respondents must pay the applicant $24,149.00 (inclusive of GST) for its claims under the contract. 2. The respondents must pay the applicant interest on $24,149 from 28 September 2017 at the rate of 15% per annum to the day payment is made. 3. The applicant must pay the respondents damages of $1,000. 4. The applicant must pay the respondents interest on the agreed damages of $1,000 at the rate of 10% per annum from the date of this decision until and including the day the amount is paid. 5. Any application for costs must be made by filing in the tribunal two (2) copies and providing one (1) copy to the other party of any submissions and evidence to be relied upon within 14 days of the date of this decision. 6. If any application for costs is made, then the other party must file in the tribunal two (2) copies and provide one (1) copy to the applying party of any submissions and evidence in response to be relied upon within 28 days of the date of this decision. 7. The application for costs will be determined on the papers and without an oral hearing.
CATCHWORDS:	CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT -GENERALLY – whether a contract should be varied to avoid injustice – whether date for practical completion should be extended LIQUIDATED DAMAGES – whether agreed rate for liquidated damages a penalty Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(c), s 77(3)(e), Schedule 1B s 42 Queensland Building and Construction Regulation 2018 (Qld), s 54 Dunlop Pneumatic Trye Company Ltd v New Garage and Motor Company Ltd [1915] AC 79 Grocon Constructions (Qld) Pty Ltd v Juniper Developer (No 2) Pty Ltd [2015] QCA 291, distinguished Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656
APPEARANCES & REPRESENTATION:
Applicant:	Ms M Campbell of Hearthstone Legal
Respondents:	Mr Schriiffer instructed by McCarthy Durie Lawyers