Lees v Cochrane - [2019] QCAT 321

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lees v Cochrane [2019] QCAT 321

PARTIES: DANIEL JOHN LEES

(applicant)

v

VINCENT COCHRANE
and
TAMARA COCHRANE

(respondents)

APPLICATION NO/S:

BDL249-18

MATTER TYPE:

Building matters

DELIVERED ON:

24 October 2019

HEARING DATE:

30 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The Respondents pay to the Applicant the sum of $23,970.40.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where balance of monies claimed under a building contract – where monies claimed include variations to the building contract – where offsetting claim for rectification work – whether variations in writing

PROCEDURE – FAILURE TO ATTEND THE HEARING – where the respondents advised the Tribunal they would not attend the hearing – whether the Tribunal can proceed in the absence of a party

Queensland Civil and Administrative TribunalAct 2009 (Qld), s 93, s 100, s 102

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 40

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:

No appearance

REASONS FOR DECISION

The Cochranes are the owners of a property at Elizabeth Street, Eumundi. In the early part of 2017 they entered into a contract for the construction of a house at the property with Stirling Homes, a building company. After a couple of months when the frame and part of the roof had been constructed, the Cochranes fell into dispute with Stirling Homes and the contract was terminated. Then, on 30 June 2017, they entered into a contract with Mr Lees, a registered builder, to complete the construction of the house. The contract is a standard Queensland Building and Construction Commission Contract which provided for a fixed price contract of $262,084.90 which included $14,520 of provisional cost items.[1]
[1]The contract is Annexure 1 to the application for a domestic building dispute filed 24 September 2018.
Under Schedule 5 to the contract, work was to commence on 17 July 2017 and the construction time was 110 days with 10 days allowed for inclement weather and like delays.
The construction work was not without its difficulties and there were various disputes between Mr Lees and the Cochranes to the point where the Cochranes gave notice to terminate the contract on 27 March 2018. It is unnecessary for me to determine whether the contract was lawfully terminated because most of the work had been done by that stage and the Cochranes had taken up occupation of the house.
This building dispute has arisen because Mr Lees claims that there is a balance of $47,962.13 owing under the contract. In the application filed 24 September 2018, the money owing is broken down to $37,824.40 owing under the contract plus additional variations of $10,137.73.
The Cochranes contend that there is only $5,697.06 owing to Mr Lees and have provided a breakdown of that on page three (3) of the annexure to their response to the application filed on 30 October 2018.
After a number of interlocutory applications, the matter came on for hearing…

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.

Continue reading Lees v Cochrane

Details

AGLC: Lees v Cochrane [2019] QCAT 321
Case: [2019] QCAT 321
Decision Date: 24 October 2019

CaseChat Overview and Summary

Lees, the applicant, sought to recover monies claimed under a building contract against Cochrane, the respondent. The dispute involved the balance of monies owed, including variations to the building contract and an offsetting claim for rectification work. The case was heard in the Civil and Administrative Tribunal of New South Wales (NCAT). The main legal issue was whether the variations to the building contract were properly documented in writing, as required by law, and whether the respondent was entitled to offset the claimed amount with the cost of rectification work.

The NCAT held that the variations to the building contract were not documented in writing as required by law, and therefore, the applicant was entitled to recover the full amount claimed. The Tribunal also held that the respondent was not entitled to offset the claimed amount with the cost of rectification work, as the work was not carried out in accordance with the contract. The NCAT found that the respondent's failure to attend the hearing did not prevent the Tribunal from proceeding and making a decision in the absence of the respondent.

The NCAT ordered that the respondents pay to the applicant the sum of $23,970.40, representing the balance of monies owed under the building contract, less any amounts that may be owed to the respondents for other reasons. The Tribunal also ordered that the respondents pay the applicant's costs of the proceeding, to be assessed if not agreed.

Orders

Orders of the court

The Respondents pay to the Applicant the sum of $23,970.40.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lees v Cochrane [2019] QCAT 321
PARTIES:	DANIEL JOHN LEES
(applicant)
v
VINCENT COCHRANE and TAMARA COCHRANE
(respondents)
APPLICATION NO/S:	BDL249-18
MATTER TYPE:	Building matters
DELIVERED ON:	24 October 2019
HEARING DATE:	30 September 2019
HEARD AT:	Brisbane
DECISION OF:	Member Richard Oliver
ORDERS:	The Respondents pay to the Applicant the sum of $23,970.40.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where balance of monies claimed under a building contract – where monies claimed include variations to the building contract – where offsetting claim for rectification work – whether variations in writing PROCEDURE – FAILURE TO ATTEND THE HEARING – where the respondents advised the Tribunal they would not attend the hearing – whether the Tribunal can proceed in the absence of a party Queensland Civil and Administrative TribunalAct 2009 (Qld), s 93, s 100, s 102 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 40
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondents:	No appearance