Kernohan Construction Pty Ltd v Gillham

Case [2019] QCAT 165

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Kernohan Construction Pty Ltd v Gillham [2019] QCAT 165
PARTIES: KERNOHAN CONSTRUCTION PTY LTD T/AS KERNOHAN CONSTRUCTION

(applicant)

v
AUSTIN GILLHAM

(respondent)

APPLICATION NO/S:

BDL116-15

MATTER TYPE:

Building matters

DELIVERED ON:

14 June 2019

HEARING DATE:

13 March 2017; 15 March 2017; 16 March 2017; 17 March 2017

HEARD AT:

Maroochydore

DECISION OF:

Member Deane
ORDERS:

1.   Austin Gillham is to pay Kernohan Construction Pty Ltd T/As Kernohan Construction $12,747.56.

2.   A copy of this decision is to be provided by the Registry to the Master Builders Queensland and of the funds held by the Master Builders Queensland the amount of $12,747.56 is to be paid to Kernohan Construction Pty Ltd T/As Kernohan Construction and the balance paid to Austin Gillham.

3.   Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 22 July 2019.

4.   If any Application for costs is made:

(a)   the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 12 August 2019;

(b)  the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 26 August 2019;

(c)   The Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00pm 26 August 2019.

5.   If no Application for costs is made in accordance with Order 3 then there shall be no order as to costs.
CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – REMUNERATION – DEDUCTIONS – where owner claims defective work – whether owner entitled to deduct amounts from payment claims

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – PERFORMANCE OF WORK – GENERAL – Domestic Building Contracts Act 2000 (Qld) – where contractual variations – where variations did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld) – where owner agreed to variation work - whether owner can claim reimbursement of amounts paid

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – PERFORMANCE OF WORK – GENERAL – where owner fails to attend final inspection – where works suspended – where rectification of defective and incomplete works to take at least 14 days – whether practical completion achieved

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where liquidated damages payable for delayed completion – whether actual damages are payable after obtaining possession.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where alternative claim made in final written submissions – where no explanation as to why application to amend…

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Details
AGLC
Kernohan Construction Pty Ltd v Gillham [2019] QCAT 165
Case
[2019] QCAT 165
Decision Date

CaseChat Overview and Summary

In the matter of Kernohan Construction Pty Ltd T/As Kernohan Construction v Austin Gillham, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to adjudicate a dispute between a construction company and a homeowner regarding the quality of completed works, variations to the contract, and financial claims and counter-claims. The homeowner, Austin Gillham, alleged that Kernohan Construction had completed works to an unacceptable standard and failed to address defects, while Kernohan Construction sought payment for work completed and damages for the homeowner's failure to pay for the works.

The central legal issues before the Tribunal were whether the homeowner was entitled to deduct amounts from payment claims due to defective work, whether the homeowner could claim reimbursement of amounts paid for variations not complying with the Domestic Building Contracts Act 2000 (Qld), whether practical completion had been achieved given the homeowner's failure to attend the final inspection and the works being suspended, and whether actual damages were payable after Kernohan Construction obtained possession of the property.

The Tribunal found that the homeowner was entitled to deduct certain amounts from the payment claims due to defective work. However, the Tribunal also determined that the homeowner could not claim reimbursement of amounts paid for variations that did not comply with the Domestic Building Contracts Act 2000 (Qld) because he had agreed to the variations. Regarding practical completion, the Tribunal concluded that it had not been achieved as the rectification of defective and incomplete works would take at least 14 days. Finally, the Tribunal held that Kernohan Construction was not entitled to claim actual damages for delayed completion as it had obtained possession of the property.

The Tribunal ordered that Austin Gillham pay Kernohan Construction $12,747.56, with a portion of the funds held by Master Builders Queensland to be released to Kernohan Construction and the balance paid to Austin Gillham. Additionally, the Tribunal set out a detailed procedure for any applications for costs, including deadlines for filing submissions and evidence, and conditions for an oral hearing if requested.

Orders

Orders of the court

1. Austin Gillham is to pay Kernohan Construction Pty Ltd T/As Kernohan Construction $12,747.56.

2. A copy of this decision is to be provided by the Registry to the Master Builders Queensland and of the funds held by the Master Builders Queensland the amount of $12,747.56 is to be paid to Kernohan Construction Pty Ltd T/As Kernohan Construction and the balance paid to Austin Gillham.

3. Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 22 July 2019.

4. If any Application for costs is made:

(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 12 August 2019;

(b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 26 August 2019;

(c) The Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00pm 26 August 2019.

5. If no Application for costs is made in accordance with Order 3 then there shall be no order as to costs.

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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