Lida Build Pty Ltd v Miller

CITATION: Lida Build Pty Ltd v Miller and Anor [2012] QCAT 137

PARTIES:	Lida Build Pty Ltd
v
Peter Miller Susan Miller

APPLICATION NUMBER: BD314-09

MATTER TYPE: Building matters

HEARING DATE: 16 March 2012

HEARD AT: Brisbane

DECISION OF: B Cotterell, Member

DELIVERED ON: 26 March 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.     That Peter & Susan Miller pay Lida Build Pty Ltd the sum of $11,820.34 by 4pm on 23 April 2012.

CATCHWORDS:

Contract – Domestic Building Contract – Remuneration – Whether a home owner may lose the right to liquidated damages when they have contributed to or caused the contractor’s delay

Peak Constructions (Liverpool) v McKenney Foundations Limited (1970) 69 LGR 1 followed
SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391 followed

Contract – Domestic Building Contract – damages – whether assessed according to rectification measure rather that diminution in value

TabcorpHoldingsLtdv Bowen Investments Pty Ltd (2009) 236 CLR 272 at 286 followed
Willshee v Westcourt Ltd [2009] WASCA 87 followed

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Lida Build Pty Ltd represented by Mr Jover
RESPONDENT:	Peter Miller & Susan Miller represented by Mr Miller

REASONS FOR DECISION

1. This application has been referred back to this Tribunal by the QCAT Appeal Tribunal (the Appeal Tribunal).  Both Lida Build Pty Ltd (Lida Build) and Peter and Susan Miller (the Millers) appealed a decision of this Tribunal dated 6 September 2010 to the Appeal Tribunal and both were successful in part.

2. The Appeal Tribunal was constituted by the President, Justice Alan Wilson, and Member Michelle Howard.  It ordered as follows:

   On the appeal of Lida Build, the appeal is allowed but only to the following extent:

   (a)  That the amount allowed for electrical variations of $11,302.91 be set aside and the amount of $12,433.21 be substituted;

   (b) That the decision of the Tribunal about the date for practical completion, delay costs, and late completion damages be set aside and those issues returned to the Tribunal for reconsideration according to law;

   (c) That the claim by Lida Build for interest under the contract is returned to the Tribunal for reconsideration and the Tribunal is directed to hear further evidence to allow it to calculate interest owing on monies owing under the contract;

   (d) That the claim by Lida Build for costs under the contract is referred back to the Tribunal for reconsideration and the Tribunal is directed to hear further evidence to allow it to calculate costs referrable to recovery of monies owing under the contract;

   (e) That the claim by Lida Build for costs by way of the filing fee of the application is referred back to the Tribunal for reconsideration and the Tribunal is directed to determine the claim.

   2.   On the appeal of Susan Miller and Peter Miller, the appeal is allowed but only to the following extent:

   (a) (i) That the Tribunal’s orders dismissing the claims for diminution of value and rectification relating to the roof pitch be set…