Lewis v Netcon Pty Ltd - [2011] QCAT 295

CITATION:

Lewis v Netcon Pty Ltd [2011] QCAT 295

PARTIES:	Mrs Virginia Lewis
v
Netcon Pty Ltd

APPLICATION NUMBER:

BDL214-10

MATTER TYPE:

Building matters

HEARING DATE:

31 March and 1 April 2011

HEARD AT:

Cairns

DECISION OF:

Ms Joanne R Browne, Member

DELIVERED ON:

29 June 2011

DELIVERED AT:

Cairns

ORDERS MADE:

The Respondent pay to the Applicant the amount of $15,268.00 by 4.00pm on 25 July 2011.

CATCHWORDS:

Whether contract lawfully terminated – failure to pay final progress claims – due diligence – defective and incomplete work

Section 77 Queensland Building Services Authority Act 1991

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mrs Virginia Lewis (self-represented)
RESPONDENT:	Mr Jack Welten appeared for Netcon Pty Ltd (self-represented)

REASONS FOR DECISION

Introduction

Mrs Virginia Lewis engaged the services of Netcon Pty Ltd (“the Builder”) to conduct renovation work to her house at 90 MacIlwraith Street, Manoora (“the house”). The renovation work was performed by Mr Jack Welten and his son Mr Michael Welten (Michael) who are both directors of Netcon Pty Ltd. Mrs Lewis lived in her house throughout the renovations. The Builder was in the course of completing the renovation works at the house when this dispute arose. The essence of the dispute was whether the work performed by the Builder was satisfactory and whether Mrs Lewis owed the Builder money for work performed.

The work performed by the Builder was to be completed in three (3) stages and for the purposes of section 17A of the Domestic Building Contracts Act 2000 (“the DBCA”), the domestic building work carried out by the Builder is taken to be a single contract. Mrs Lewis informed the Tribunal at the commencement of the hearing that she had not been provided with a copy of the standard terms and general conditions of the contract despite a direction being made that Netcon Pty Ltd provide a complete copy of the contract. Mr Welten provided a copy of the standard terms and general conditions to Mrs Lewis and the Tribunal at the hearing however the copy of the standard terms provided was incomplete.

The parties signed three (3) Master Builders Minor Works contracts in respect of the following renovation works at the house:

i) Balcony – the contract was signed on 4 June 2009 and the works to commence on 22 June 2009. The works to be performed were described “as per drawings V2009 – OT04 dated 17-04-09 proposed balcony only” to be completed by 1 September 2009 in the amount of $47,288.00. The work was to be performed in “stages” including laying the deck, laying the roof, hand rails and soffit.
ii) Downstairs – the contract was signed on 10 August 2009 and the works to commence on 12 August 2009. The works to be performed were described as “renovations to downstairs area including stairs” with work to be completed in stages (including frame, lockup) by 7 October 2009 in the amount of $30,900.00.

iii) Upstairs – the contract was…

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 Lewis v Netcon Pty Ltd

Details

AGLC: Lewis v Netcon Pty Ltd [2011] QCAT 295
Case: [2011] QCAT 295
Decision Date: 29 June 2011

CaseChat Overview and Summary

The case of Lewis v Netcon Pty Ltd involved a dispute between a builder and a homeowner regarding the termination of a construction contract. The Applicant, Lewis, alleged that the Respondent, Netcon, had unlawfully terminated the contract and failed to pay the final progress claims. Lewis claimed that Netcon had not exercised due diligence in assessing the final progress claims and had not adequately accounted for defective and incomplete work. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was whether the Respondent had lawfully terminated the contract. This involved determining whether the Respondent had exercised due diligence in assessing the final progress claims and whether there was a valid reason to terminate the contract due to defective and incomplete work. The tribunal also had to consider the effect of the termination on the Applicant's entitlement to payment for the final progress claims.

The tribunal found that the Respondent had not exercised due diligence in assessing the final progress claims. It was determined that the Respondent had not provided adequate reasons for rejecting the final progress claims and had failed to properly account for the defective and incomplete work. The tribunal held that the termination of the contract was therefore unlawful. As a result, the tribunal ordered the Respondent to pay the Applicant the amount of $15,268.00 by 4.00pm on 25 July 2011.

Orders

Orders of the court

The Respondent pay to the Applicant the amount of $15,268.00 by 4.00pm on 25 July 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.