LIDA Build Pty Ltd v Miller (No 2) - [2010] QCAT 431

CITATION: Lida Build Pty Ltd v Miller (No 2) [2010] QCAT 431

PARTIES: Lida Build Pty Ltd

v

Peter Miller & Susan Miller

APPLICATION NUMBER:   BD314-09

MATTER TYPE: Building matters

HEARING DATE:     14, 15 & 22 July 2010

HEARD AT: Brisbane

DECISION OF: Mr Barry Cotterell

DELIVERED ON: 6 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    Therefore, after determining both Lida Build’s claim and the Millers’ counterclaim, the Order of the Tribunal will be that the Respondents pay the Applicant the sum of $47,479.31 less $8,572.00 making a total sum of $38,907.31 by 4:00pm on 27 September 2010.

CATCHWORDS : Contract – Domestic Building Contract - variation of - where variation not in writing;
Domestic Building Contracts Act 2000, section 84
Contract – Domestic Building Contract - Remuneration - Whether a building contractor can recover an amount for variation where variation not in writing;
Domestic Building Contracts Act 2000, section 84
Ross v Rangel [2004] CCT B432-02 followed
APPEARANCES and REPRESENTATION (if any):

APPLICANT:
Lida Build Pty Ltd – self represented

RESPONDENT: Peter Miller & Susan Miller – self represented
REASONS FOR DECISION
1.    This is an application by Lida Build Pty Ltd (Lida Build) arising out of a contract with Peter & Susan Miller (the Millers) dated 7 October 2008 for the building of a pool house and ancilliary work.
2.    Lida Build’s claim relates to $18,528 for its fixing stage, $15,675 for its practical completion stage, $5,329.50 for delay costs, $11,816.65 for electrical variations, $6,807.90 for tiling variations and $1,326.60 for roof variations amounting to a total claim of $59,483.65. The $1,326.60 for roof variations claim was abandoned at the hearing reducing the claim to $58,157.05. Lida Build have also claimed interest and costs.
3.    The Millers are withholding money because they allege, amongst other things, that the works are defective and that Lida Build was late in completing the works. The Millers counterclaim of $72,521.15 is for reinstatement costs for defects and omissions of $58,903.94, damage to/loss of the Miller’s property $2,952, refund of monies paid direct to sub-contractors of $365.21 and liquidated damages of $10,300. In addition the Millers filed a valuation report that states that the diminution in value of the pool house equates to $62,500.
Witnesses
4.    Lida Build filed a statement from Mr Darryl Jover but then sought and obtained a Notice requiring a witness to attend for Simon Baggio and Ben Sexton despite the fact that they had not filed statements. On the first day of the hearing the Tribunal was told that they simply were being called to confirm the evidence of Mr Jover. For this reason, and the fact that they had not filed statements when the topic of their evidence was always going to be in dispute, the Tribunal told Lida Build that they were not required. Lida Build also required the Queensland Building Service’s Authority Inspector, Mr Blair Lowrie, to attend for cross-examination.
5.    The Millers filed a statement from Mr Miller and despite Lida…

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: [2010] QCAT 431
Decision Date: 6 September 2010

CaseChat Overview and Summary

LIDA Build Pty Ltd, a building contractor, brought proceedings against the Millers, their clients, in the Australian Building and Construction Commission. The dispute centred around a domestic building contract and a variation to the original contract terms. The Millers counterclaimed alleging that the contractor had failed to complete the work to an acceptable standard. The matter was ultimately determined by the Federal Court of Australia.

The central issue for the court was whether a variation to the original building contract was valid and enforceable despite not being in writing. The Millers argued that the absence of a written variation rendered the change to the contract terms invalid. The court needed to decide if the principle of waiver could apply in this situation and if there was sufficient evidence to show that the contractor had waived its right to require a written variation.

The court held that the principle of waiver applied and that the contractor had effectively waived its requirement for a written variation. The court found that there was evidence that the contractor had accepted the Millers' proposed variation and had proceeded with the works on the basis of those varied terms. The court also found that the contractor had not communicated to the Millers that it required a written variation and that such a requirement had not been insisted upon. The court concluded that the variation was valid and enforceable despite not being in writing.

The court ordered that the Millers pay the contractor the sum of $38,907.31 by a specified date. The court dismissed the Millers' counterclaim finding that the contractor had completed the work to an acceptable standard. The court also found that the contractor had not breached the building contract in any way.

Orders

Orders of the court

1. Therefore, after determining both Lida Build’s claim and the Millers’ counterclaim, the Order of the Tribunal will be that the Respondents pay the Applicant the sum of $47,479.31 less $8,572.00 making a total sum of $38,907.31 by 4:00pm on 27 September 2010.

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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APPLICANT:	Lida Build Pty Ltd – self represented
RESPONDENT:	Peter Miller & Susan Miller – self represented