MacDonald v Queensland Building and Construction Commission - [2014] QCAT 158

CITATION:

MacDonald v Queensland Building and Construction Commission [2014] QCAT 158

PARTIES:	Jonathon Stewart MacDonald (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR019-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

24 July 2013, 18 October 2013, 30 October 2013 and 30 January 2014

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission is set aside.

2. The Tribunal substitutes its own decision that the homeowners did not validly terminate the contract on 19 August 2008.

CATCHWORDS:

REVIEW PROCEEDING – TERMINATION OF BUILDING CONTRACT – where homeowners made numerous requests for additional work – where no formal variations agreed – where limited extensions of time sought – whether builder suspended works – whether builder’s actions collectively constituted repudiation of contract which home owners were entitled to accept – whether conduct of homeowner’s disentitled them to accept repudiation of builder – whether contract validly terminated by homeowners

EVIDENCE – whether rule in Jones v Dunkel should be applied against builder – where builder failed to call independent corroborative evidence

Domestic Building Contracts Act 2000 (Qld), s 66, s 92, s 93
Domestic Building Contract Regulation 2000 (Qld), s 4
Queensland Building and Construction Commission Act 1991 (Qld), s
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21(2), s 24

ACN 096 278 483 Pty Ltd v Vercorp Pty Ltd [2011] QCA 189
Concut Pty Ltd v Worrell (2000) 176 ALR 693, 699
Cooper v Ungar (1958) 100 CLR 510
Foran v Wright (1989) 168 CLR 835
G. Lazy J Pastoral Pty Ltd v QBSA [2000] QDC 220
Holland v Wiltshire (1954) 90 CLR 409
Hudson Crushed Metals Pty Ltd v Henry [1985] 1 Qd R 202
Jones v Dunkel (1959) 101 CLR 298
Kelly v Desnoe [1985] 2 Qd R 477
Nina’s Bar & Bistro v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR613
Peter Turnbull & Co v Mundas Trading Co (Australia) Pty Ltd (1954) 90 CLR 235
Quinn Villages Pty Ltd v Mulherin [2006] QCA 433
Re Rodgers and Secretary, Department of Social Security (1991) 24 ALD 720
Road Show Entertainment Pty Ltd v ACN 053 006 269 Pty Ltd (formerly CEL Home Video Pty Ltd) (1997) 2 NSWLR 462
Ross T Smyth v Bailey [1940] 3 All ER 60
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Shevill v Builders Licensing Board (1982) 149 CLR 620
Sopov v Kane Constructions Pty Ltd [2007] VSCA 257
Wilson v Kirk Contractors Pty Ltd (1991) 7 BCL 284

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr MacDonald represented himself.

RESPONDENT:

Mr B S Turnbull of HWL Ebsworth Lawyers represented the Queensland Building and Construction Commission

REASONS FOR DECISION

Mr MacDonald is an experienced builder who has held a building license since 1989. On 23 August 2007, he entered into a domestic building contract with Ms Gail Poppenk and Mr Wezley Perkins (‘the owners’ or ‘the…

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.

Keep reading for free

Create a free CaseChat account to read MacDonald v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCAT 158
Decision Date

CaseChat Overview and Summary

The applicant, Mr MacDonald, appealed against the decision of the Queensland Building and Construction Commission (QBCC) that the homeowners validly terminated the building contract. The appeal was heard over several dates, and the Tribunal made findings on a number of contested issues. The QBCC submitted that the builder’s breaches of the contract amounted to a repudiation of the contract which the homeowners were entitled to accept. The builder submitted that he had not repudiated the contract and that the homeowners were not entitled to terminate it. The Tribunal found that the contract did not exclude the common law right to terminate. However, it found that the builder’s breaches did not demonstrate an intention to repudiate the contract. The breaches occurred in the context that the homeowners breached the contract in numerous ways and their breaches and actions made it impossible for the builder to complete the works by the date agreed. The Tribunal found that the homeowners were not entitled to accept any repudiation by the builder because they were not ready willing and able to complete the contract. The Tribunal set aside the decision of the QBCC and substituted its own decision that the homeowners did not validly terminate the contract on 19 August 2008.

Orders