Kalkamoning Pty Ltd v Zuch - [2021] QCAT 269

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kalkamoning Pty Ltd v Zuch & Anor [2021] QCAT 269

PARTIES: KALKAMONING PTY LTD

(applicant)

v

ANDREW ZUCH

ANNE-MARIE GERLACH

(respondents)

APPLICATION NO:

BDL014-18

MATTER TYPE:

Building matters

DELIVERED ON:

4 August 2021

HEARING DATES:

17 November 2020

18 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.   Kalkamoning Pty Ltd must pay Andrew Zuch and Anne-Marie Gerlach, by 1 September 2021:

(a)    damages of $33,131.99; and

(b)   interest of $1,614.45.

2.   Each party must file in the tribunal, and give a copy to the other party of, any application for costs consisting of evidence and submissions on costs, or advice that costs are not sought, by 4:00pm on 18 August 2021.

3.   If costs have been applied for under the previous direction, any submissions in reply must be filed in the tribunal, and a copy given to the other party, by 4:00pm on 25 August 2021.

4.   Any application for costs will then be decided by the tribunal on the papers.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where owners terminated building contract – whether substantial breach – whether termination valid

DAMAGES – ASSESSMENT OF DAMAGES FOR BREACH OF CONTRACT – GENERALLY – where building work incomplete or defective – where differing expert opinions on cost of rectification – whether amount not paid under contract should be taken into account

Queensland Building and Construction Commission Act 1991 (Qld) s 77

Bellgrove v Eldridge (1954) 90 CLR 613

Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115

Stojanovski v Australian Dream Homes Pty Ltd [2015] VSC 404.

APPEARANCES & REPRESENTATION:

Applicant:

M C Long, instructed by Becker Watt Lawyers

Respondents:

C H Matthews, instructed by All Building Law

REASONS FOR DECISION

Introduction

Kalkamoning Pty Ltd built a home for Mr Zuch and Ms Gerlach. This proceeding involves claims and counter-claims for damages and contractual remedies.
It is common ground that this is a building dispute concerning a domestic building contract, and that the remedies set out in section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) are relevant.

Background

The construction contract was signed in November 2015, and work commenced in June 2016. The total contractual price was $803,072, although this changed to some extent in the course of construction because of agreed variations. The contract provided for a series of stages and stage payments, with the practical completion stage being the final stage. The owners paid the various stage payments, prior to the practical completion stage, as work progressed. During the practical completion stage, in mid-2017, however, the parties fell into dispute about whether practical completion had been reached.
On 16 June 2017 the builder notified the owners that it would reach practical completion on 23 June 2017. The builder enclosed the practical completion stage invoice for $57,580. That invoice has not been paid…

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 269
Decision Date

CaseChat Overview and Summary

Kalkamoning Pty Ltd (the builder) built a home for Andrew Zuch and Anne-Marie Gerlach (the owners). The owners terminated the contract and claimed damages. The builder responded by claiming the amount of the practical completion invoice, delay damages, interest and costs. The owners counter-claimed for damages. The parties’ claims and counter-claims were heard by the Queensland Civil and Administrative Tribunal. The tribunal found that practical completion had not been reached. The owners were entitled to terminate the contract. The owners were entitled to damages for rectification and completion works, and late completion damages. The builder was not entitled to payment of the practical completion stage invoice. The builder was not entitled to delay damages. The tribunal assessed the total amount of damages payable by the builder to the owners at $33,131.99. The tribunal assessed interest payable by the builder to the owners at $1,614.45. The tribunal ordered the builder to pay the owners damages and interest by 1 September 2021.

Orders