Mahmudov v Goncalves
[2012] QCAT 629
| CITATION: | Mahmudov v Goncalves [2012] QCAT 629 |
| PARTIES: | Natalia Mahmudov (Applicant) |
| v | |
| Jose Goncalves t/as Z Build (Respondent) |
| APPLICATION NUMBER: | BDL287-11 / BDL333-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 12 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 17 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Jose Goncalves t/as Z Build is to pay to Natalia Mahmudov the sum of $676.68 by 4:00pm on 21 January 2013. 2. Jose Goncalves t/as Z Build is to deliver up to Natalia Mahmudov by 4:00pm on 21 January 2013 certificates and durable termite label held by him in relation to the works undertaken at 45 Clough St, Mt Gravatt East including the originals of: (a) The form 16 certificate in relation to installation of a termite management system; (b) an installation certificate issued by (c) Certificate of waterproofing for upper deck; (d) Certificate for trusses. |
| CATCHWORDS: | DOMESTIC BUILDING DISPUTE – home owner purported to terminate – whether valid termination – amounts owing for incomplete or defective work – whether liquidated damages payable – whether practical completion achieved – whether other damages payable – delivery up of certificates – whether amounts are recoverable by builder where variations were not in writing – whether there were exceptional circumstances or the builder would suffer unreasonable hardship – whether recovery would be unfair to the owner Domestic Building Contracts Act 2003, ss 39, 79-84 Ownit Homes Pty Ltd v Bachelor [1983] 2 Qd R 124 Habachi and Anor v Harjrudin Turcinovic [2011] QCAT 309 Ross v Rangel [2004] QCCTB 98 Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 37 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Natalia Mahmudov (in person) |
| RESPONDENT: | Jose Goncalves (in person) |
REASONS FOR DECISION
Background
Mrs Mahmudov, home owner, commenced 2 applications arising out of work performed by Mr Goncalves, a builder, under a domestic building contract dated 24 August 2010[1] (the Contract). Mr Goncalves counterclaims for moneys owing for work performed as variations. The applications were heard together.
[1] Exhibit 1.
The Contract was in respect of additions to an existing house at 45 Clough Street, Mt Gravatt East.
Mrs Mahmudov purported to terminate the Contract on 26 July 2011. Mr Goncalves contends that Mrs Mahmudov was not entitled to terminate.
Mrs Mahmudov claimed the following:
a)Work paid for in the practical completion stage payment but not performed $2,900
b)Rectification of termite protection $2,700
c)Damages for late completion $7,920
d)Legal Costs $1,880
e)Installation of hot water $ 400
f)Waterproofing works $1,300
g)Water tank contractor costs $1,149
h)Delivery up of certificates under the Contract
i)Relief from payment of Mr Goncalves’ invoice for variations in the amount of $4,361.50
j)Filing fees $265.00 x 2 $ 530
Mr Goncalves seeks payment of his invoice relating to claimed variations in the sum of $4,361.50, interest in accordance with the Contract and costs.
Was Termination lawful?
Mrs Mahmudov delivered a Notice to Remedy Breach[2] requiring Mr Goncalves to remedy his alleged breaches within 10 working days. Mr Goncalves did not commence to remedy the breaches and as a consequence she delivered a Notice Terminating Contract by which she terminated the Contract effective 26 July 2011[3].
[2] Dated 1 July 2011.
[3] Dated 22 July 2011.
Mr Goncalves contends that Mrs Mahmudov was not entitled to give a Notice to Remedy and then terminate because she was in breach of the Contract as she had not paid his 17 March 2011 invoice in relation to variations.[4] He also contends that 10 working days was not a reasonable period of time within which to remedy the alleged breach.
[4] Clause 28.7.
It is not disputed that Mr Goncalves:
a) had not performed any work under the Contract since before 24 February 2011 when the Notice to Remedy was issued in July 2011;
b) did not purport to suspend the works under the Contract for the alleged failure to pay by giving notice required by clause 19;
c) had not performed all of the work to be performed by him under the Contract when the Notice to Remedy was issued;
d) did not attempt to remedy or to commence to remedy the breach within the time in the notice.
Mr Goncalves gave evidence that he did not contact Mrs Mahmudov in response to the Notice to Remedy as he was informed by the Queensland Building Services Authority (QBSA) that she had made a complaint.
The QBSA has no jurisdiction to deal with contractual matters. The termination of a contract is clearly a contractual matter. Mr Goncalves as a professional builder ought to have known that a complaint to the QBSA did not relieve him from appropriately dealing with contractual matters.
I find that Mr Goncalves was in substantial breach of the Contract as he had not performed any or all of the 3 items of work remaining to be performed and thereby had effectively suspended carrying out the works other than under clause 19.
Mrs Mahmudov had informed him on or about 6 April 2011[5] that pre-requisite works had been performed and the site was ready for the waterproofing works to be performed. Mr Goncalves made no attempt to arrange for the balance of the work to be performed or to ascertain whether the balance of the pre-requisite work had been performed by Mrs Mahmudov.
[5] Annex 3 Statement of Evidence of Natalia Mahmudov BDL333-11.
I find that Mrs Mahmudov was not in breach of the Contract in failing to pay the invoice for variations as no entitlement under the Contract arose in respect of variations which were not in writing.[6]
[6]Clause 20; any entitlement to payment is required to be found under section 84(4) of the Domestic Building Contracts Act 2003 (DBC Act).
Clause 28 specified the remedy period as 10 working days. It had been agreed by the parties. Clause 28.4 is in terms of rectifying the breach or commencing to substantially rectify the breach.
There is no evidence before the Tribunal that Mr Goncalves took any steps to rectify or to commence to rectify the breach within the time or at all.
I find that the Contract was validly terminated by Mrs Mahmudov.
The other issues to be determined relate to:
a)the costs to complete the work under the Contract;
b)the reasonable costs of rectifying any defects;
c)how much of the contract price was paid;
d) whether any damages flowed as a consequence of the termination of the Contract or any breaches of the Contract.
Work paid for in practical completion stage payment but not performed
Mrs Mahmudov claimed that she had paid for work that had not been performed and that she had since engaged other contractors to perform the work and had paid them. During the course of the hearing Mrs Mahmudov amended the amount of her claim for these items.
Mrs Mahmudov gave evidence that after terminating the Contract that she had engaged:
a) a water proofing contractor to perform incomplete work and that the cost of that work was $385.
b) a water tank contractor to perform incomplete work and that the cost of that work was $550.
c) a contractor to install the hot water system. The contractor invoiced an amount of $400, which included amounts in respect of additional work not part of the scope of work under the Contract.
Mrs Mahmudov gave evidence that the contractor spent approximately a third of his time performing the additional work and therefore claimed two thirds of this cost ie $266.
Mr Goncalves conceded that $266 was a reasonable cost for this work and conceded the other amounts paid were reasonable.
It is not disputed that:
a)Mr Goncalves issued an invoice for the Practical Completion stage on 24 February 2011 and Mrs Mahmudov paid it promptly. Somewhat unusually there was a further stage contemplated by the Contract described as Electrical and Plumbing Fit-Out (Final Stage).
b)Prior to the builder performing the Final Stage work the homeowner was to perform or contract with others to perform certain work.
c)Mr Goncalves did not perform the Final Stage work and Mrs Mahmudov did not pay Mr Goncalves for that work.
Mrs Mahmudov gave evidence that apart from these 3 items of work there was no other incomplete work under the Contract.
The Contract provided for progress payments at various stages of the works. They were not dependent upon another party’s certification. In such circumstances where the contract is terminated the entitlement to progress payments merge in the right to recover damages.[7]
[7] Ownit Homes Pty Ltd v Bachelor [1983] 2 Qd R 124.
The Contract provides that payment of a progress claim is on account only.[8]
[8] Clause 4.8.
It is appropriate for the reasonable costs of the incomplete work to be deducted from the total amount payable by Mrs Mahmudov under the Contract. Accordingly I find that an amount of $1,201 should be deducted from the Contract price.
It was not in dispute that Mrs Mahmudov had paid all amounts owing under the Contract except the Final Stage payment and had not paid for the variations claimed by Mr Goncalves in this proceeding. Mr Goncalves has not claimed for any amounts owing under the Contract or by way of damages in the event the Tribunal found that the termination of the Contract by Mrs Mahmudov was not valid.
The Final Stage payment was to be $1,507. This amount is greater than the costs of completing the works, whether or not the works formed part of the Final Stage.
I therefore find that no amount is payable by Mr Goncalves to Mrs Mahmudov in relation to these items as Mrs Mahmudov is adequately recompensed by not being required to pay the balance of the Contract price ie $1,507.
Rectification of termite protection
Mrs Mahmudov claimed $2,700 to rectify alleged defective work.
Mr Goncalves produced to the Tribunal a form 16 certificate in relation to installation of a termite management system[9] and an installation certificate issued by Exhibit 2.
[10] Exhibit 3.
Mrs Mahmudov withdrew this element of her claim.
Delivery up of certificates under the Contract
Mrs Mahmudov seeks delivery up of:
a)Certificates of waterproofing for upper deck;
b)Certificate for trusses;
c)Certificates for termite treatment (including the originals of Exhibits 2 and 3).
Mrs Mahmudov relies upon section 39 of the DBC Act.
Mr Goncalves contends that he is entitled to withhold the certificates until he receives payment of amounts owing under the Contract. He agrees to provide all documentation held by him including the durable label for the meter box upon receiving full payment of his invoice together with interest under the Contract.
Mr Goncalves was unable to direct the Tribunal to any particular provision in the Contract which afforded him this alleged right. In any event Mr Goncalves does not claim any amounts owing under the Contract. As discussed earlier in these reasons there is no entitlement under the Contract to claim for variations that are not in writing. His claim for variations can only be made under the DBC Act.
Section 39 of the DBC Act provides that a contract related document such as certificate of inspection must be given to the owner ‘as soon as practicable after receiving the document’.
I find that Mr Goncalves is not entitled to withhold the certificates until he receives any payment which might be due and therefore is required to provide the certificates without further delay.
Damages for late completion – $7,920
Mrs Mahmudov claims an entitlement to damages for late completion.[11] She claims that the works did not reach practical completion by the end of the building period and is entitled to claim at a rate of $60 per day[12] for each day after the end of the building period to and including the date the Contract is ended. The claim equates to a period of 132 days.
[11] Clause 32.
[12] Item 11 Schedule 1.
During the course of the hearing the claim was amended to $7,800, a period of 130 days.
The building period was ninety working days[13] from the start date, which was 19 October 2010[14]. An extension of time of 9 working days had been claimed and allowed and the contract was terminated on 26 July 2011.
[13] Item 10 Schedule 1.
[14] Item 6 Schedule 1.
In Schedule 1 of the Contract it stated that the number of weekends, public holidays and rostered days off included on the building period was 48 days.[15]
[15] Item 10 (a) Calculable delays.
There was no other evidence lead in relation to the number of public holidays and rostered days off so as to be able to determine the building period.
Upon questioning Mr Gonsalves was unable to inform the Tribunal as to the date upon which he contends the building period was to end.
On my calculation the building period was 90 working days plus 48 days (calculable delays) plus extension of time of 11 days (9 working and 2 non working) being a period of 149 days and therefore Practical Completion was to be achieved by 17 March 2011.
The period from 18 March 2011 to 25 July 2011 is a period of 130 days.
Mr Goncalves contends that practical completion was achieved by 24 February 2011 and therefore no amount is payable.
During the course of the hearing Mr Goncalves conceded that waterproofing work which had not been performed at the time of issuing the Practical Completion stage claim was not part of the Final Stage.
A 2 page schedule of work formed part of the Contract. It was identified as document no: 00IN01. The document sets out work but does not indicate during which stage the work was to be performed. In addition to the waterproofing work 2 items remained to be performed ie installation of the hot water system and the water tank work.
The Contract defined the term Practical Completion[16]. The definition incorporates the usual concept of the works being complete apart from minor defects or minor omissions. As indicated earlier in these reasons somewhat unusually the Contract contemplated a right to seek a progress payment for a stage described as practical completion and a subsequent stage for fit out. The Contract did not seek to modify the usual concepts, provisions and definitions of practical completion.
[16] Schedule 2.
Clause 25 of the Contract provided that upon reaching practical completion the contractor must give a notice of practical completion.
The Practical Completion progress claim dated 24 February 2011 also contains a notice that practical completion was reached on 23 February 2011[17].
[17] Annex 9 to Statement of Evidence BDL287-11, Natalia Mahmudov.
Mrs Mahmudov bears the onus of establishing her entitlement to these damages.
Mrs Mahmudov did not provide any evidence to the Tribunal that she challenged the notice of practical completion within 5 working days of receiving it as required by the Contract.[18]
[18] Clause 25.5.
If the owner does not dispute the date and detail the reasons why the date is disputed within 5 working days of receiving the notice then the date stated in the notice of practical completion is deemed to be the date of practical completion.
The original Contract Price was $150,700 (incl GST). The reasonable cost of work to complete has been found to be $1,201. Having regard to the proportion the costs to complete bear to the Contract price it is more likely than not that the work was complete apart from minor omissions.
In the circumstances I am not satisfied that Mrs Mahmudov is entitled to claim damages for delay.
Legal Costs $1,880.00
Mrs Mahmudov gave evidence that she engaged lawyers to assist her in view of Mr Goncalves’ breach of the Contract and as a consequence incurred $1,880.
In particular her lawyers prepared and sent to Mr Goncalves the Notice to Remedy Breach and the Notice Terminating Contract. An amount of $1,086.68 was incurred in relation to work in respect of the notices.[19]
[19] Annex 6 Statement of Evidence, Natalia Mahmudov BDL333-11.
Mrs Mahmudov gave evidence that she had 2 further consultations with her lawyers in relation to how to make a claim in the Tribunal and how to put her claim together. Invoices in the sums of $327.25 and $467.50 were rendered in respect of that work.[20]
[20] Annex 7 & 8 Statement of Evidence, Natalia Mahmudov BDL333-11.
Mr Goncalves submitted that Mrs Mahmudov was not entitled to issue the Notice to Remedy Breach and the costs incurred were not reasonable and some of the work was in his view unnecessary.
Earlier in these reasons I have found that Mrs Mahmudov lawfully terminated the Contract.
Mr Goncalves did not lead any evidence from an expert as to the necessity for certain work or the reasonableness of the costs.
The legal costs relating to the notices were incurred by Mrs Mahmudov as a direct consequence of Mr Goncalves’ breach.
The other legal costs are more in the nature of legal costs of these proceedings. The starting position in this Tribunal is that each party is to bear their own costs unless the interest of justice otherwise requires.[21] The parties have not made any submissions as to whether it is appropriate to order such costs.
[21] Section 100 QCAT Act.
In the absence of any independent evidence that the work was unnecessary or the costs were unreasonable, I accept the evidence before the Tribunal and find that Mr Goncalves is to pay Mrs Mahmudov the sum of $1,086.68 in respect of legal costs.
Filing Fees
Mrs Mahmudov commenced 2 proceedings and claims $265 in respect of each. Upon questioning she informed the Tribunal that she was not aware that she could have amended her initial claim to include the additional matters.
The filing of one application was necessary to bring these matters before the Tribunal for determination. Mr Goncalves is not responsible for Mrs Mahmudov’s misunderstanding. In the circumstances I order that Mr Goncalves pay Mrs Mahmudov $265 in respect of filing fees.
Is Mr Goncalves entitled to payment for variations claimed?
Mr Goncalves claims an amount of $4,361.50 ($3,965.00 + GST) as set out in an invoice dated 17 March 2011. Mr Goncalves contends that Mrs Mahmudov requested he perform the work the subject of each of these variations.
The invoice comprised a number of items. Prior to issuing the invoice Mr Goncalves sent a letter to Mrs Mahmudov setting out details of the items and their costs, said to total to $4,001[22] as follows :
a)Kitchen walls $ 370
b)Stairs void packing walls $ 260
c)Bulkhead bathroom and laundry to take duct $ 300
d)Dropped ceiling to all lower level $2,415
e)Termite barrier to LHS of residence $ 290
f)Installation of header in master bedroom $ 190
g)Opening in entrance wall $ 140
[22]Letter dated 1 March 2011 – attached to Mr Goncalves Response dated 29 February 2012 – Exhibit 1.2.
During the course of the hearing Mr Goncalves was invited to clarify the amounts claimed in the letter as against the amounts claimed in the invoice ($4,001 v $ $4,361.50). Mr Goncalves provided no explanation.
It appears the explanation is that the total in the letter is incorrect. When the individual items are added the total is $3,965. It therefore appears that the invoice has simply added GST to these amounts. On closer examination of the letter it states that amounts did not include GST or builder’s margins. It appears Mr Goncalves decided not to claim for builder’s margins.
Mrs Mahmudov contends that Mr Goncalves is not entitled to payment as the variations were not in writing as required by the Contract[23] and by the DBC Act.
[23] Clause 20.
Mr Goncalves concedes that the variations were not reduced to writing.
The DBC Act places obligations upon building contractors to ensure variations are reduced to writing and restricts the building contractor’s ability to recover amounts for the performance of such variations.[24]
[24] Part 7 DBC Act, ss 79-84.
During the course of the hearing Mrs Mahmudov admitted liability to pay for some of the items claimed. The claims and amounts admitted were:
a)Installation of heater in master bedroom in the sum of $200;
b)Termite barrier in the sum of $290.
In the circumstances I allow each of these claims in the amount conceded.
Mr Goncalves gave evidence that there had not been sufficient time to put these variations in writing. His evidence was not that the work was required to be carried out urgently but rather that it was not practical to reduce each of the variations to writing before carrying out the work as the plasterer and other trades were performing work at the site and if it was not performed straight away the plasterer and other trades would have to have returned at a later date. He also gave evidence that he was in business and would not agree to perform additional work unless he was to be paid for it.
The Tribunal may approve recovery of an amount for a variation in limited circumstances.[25] The Tribunal must be satisfied that either:
a)there are exceptional circumstances; or
b)the building contractor would suffer unreasonable hardship.
[25] Section 84(4) DBC Act.
In addition to being satisfied that the builder has met one of these tests the Tribunal must be satisfied that it would not be unfair to the building owner for the building contractor to recover an amount.
The Contract is for a fixed price. In these circumstances if the builder is entitled to recover an amount for a variation the amount recoverable is the cost of carrying out the variation plus a reasonable profit.[26]
[26] Section 84(6) DBC Act.
Mr Goncalves did not specifically address the criteria in section 84 of the DBC Act.
The Tribunal has previously found[27] that:
a)if there is no evidence of the costs of materials by way of invoices, statements relating to the hourly cost of labour and the amount claimed for profit then the claim has not been made out;
b)it would be “unfair to the building owner” if the builder were able to recover amounts where the claim was not particularised in this way.
[27] Habachi and Anor v Harjrudin Turcinovic [2011] QCAT 309.
The Tribunal and previous tribunals dealing with such matters has previously considered these tests. “Exceptional” has been found to mean “something out of the ordinary”.[28]
[28] Ross v Rangel [2004] QCCTB 98; Lida Build Pty Ltd v Miller (No 2) [2010] QCAT 431.
The Appeal Tribunal has considered these tests and confirmed the views expressed by the District Court in its previous appellate jurisdiction.[29]
[29]Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 37; Poiner v Quirk [2007] QDC 299 at [74].
The Appeal Tribunal accepted that the fact that a builder incurred costs in performing the variation cannot of itself constitute unreasonable hardship. An assessment of the impact of the sanction of not being entitled to recover amounts is required. Evidence needs to be led to demonstrate hardship to the builder and that the nature and extent of the hardship is unreasonable in the circumstances. A relevant factor is the sum claimed and the financial impact of not receiving that sum. Other factors include the conduct of the builder and the owner in explaining why the variation was not documented and any discussions they had.
Mr Goncalves did not lead any specific evidence as to exceptional circumstances or as to hardship he would suffer if the amounts were not recoverable. I do not accept that the necessity for tradespeople to return to site on a later occasion would of itself qualify as being “out of the ordinary”.
As observed by the Appeal Tribunal in the Better Homes’ case[30] if there is no evidence of hardship there can be no basis for finding ‘unreasonable hardship’.
[30] At [33].
Kitchen Walls $370
Mrs Mahmudov admitted liability to pay half ie $185 for this item on the basis that the wall was not in the plans, had been built and she acknowledged that she had discussed the decoration of the post (otherwise described as boxing in of the steel column). Mrs Mahmudov denied that she had discussed the balance of the wall.
I am not satisfied that Mr Goncalves has demonstrated that there are exceptional circumstances nor that he would suffer unreasonable hardship.
Mr Goncalves has not produced any evidence of the costs and profit margin in respect of this item. I am not satisfied that it would not be unfair to Mrs Mahmudov to allow recovery of the whole amount claimed.
In the circumstances I allow this claim in the amount conceded in the sum of $185.
Stairs void packing walls $260
Mrs Mahmudov and Mr Goncalves gave quite different accounts of their recollections of discussions in relation to this item. Mrs Mahmudov’s evidence was that she did not believe it was extra work based on the discussion held. Mr Goncalves’ evidence was that he provided an oral estimate of additional costs.
This demonstrates the reason why variations should be put in writing so that there can be no doubt as to the nature of the work and the cost proposed to be claimed.
I am not satisfied that Mr Goncalves has demonstrated that there are exceptional circumstances nor that he would suffer unreasonable hardship.
Mr Goncalves has not produced any evidence of the costs and profit margin in respect of this item. I am not satisfied that it would not be unfair to Mrs Mahmudov to allow recovery of the amount claimed.
In the circumstances I do not allow any amount for this claim.
Bulkhead bathroom and laundry to take duct $300
Mrs Mahmudov and Mr Goncalves gave quite different accounts of their recollections of discussions in relation to this item including as to when the discussion was held. Mrs Mahmudov’s evidence was that it was discussed on the day the Contract was signed and there was no discussion of how much it might cost. Mr Goncalves’ evidence was that it was discussed at the same time as the kitchen wall and the stair void packing.
I am not satisfied that Mr Goncalves has demonstrated that there are exceptional circumstances nor that he would suffer unreasonable hardship.
Mr Goncalves has not produced any evidence of the costs and profit margin in respect of this item. I am not satisfied that it would not be unfair to Mrs Mahmudov to allow recovery of the amount claimed.
In the circumstances I do not allow any amount for this claim.
Dropped ceiling to all lower level $2,415
Mrs Mahmudov and Mr Goncalves gave quite different accounts of their recollections in relation to this item. Mrs Mahmudov’s evidence was that the only discussion in relation to ceiling height was held at an early time, it had resulted in a variation and the variation had been paid. Mr Goncalves’ evidence was that the discussion occurred at about the same time as the other items claimed were discussed, he provided an oral estimate of additional costs and was instructed to proceed.
I am not satisfied that Mr Goncalves has demonstrated that there are exceptional circumstances nor that he would suffer unreasonable hardship.
Mr Goncalves has not produced any evidence of the costs and profit margin in respect of this item. I am not satisfied that it would not be unfair to Mrs Mahmudov to allow recovery of the amount claimed.
In the circumstances I do not allow any amount for this claim.
Opening in entrance wall $140
Mrs Mahmudov and Mr Goncalves gave quite different accounts of their recollections of discussions in relation to this item including as to when the discussion was held. Mrs Mahmudov’s evidence was that it was discussed sometime prior to the Contract being signed. Mr Goncalves’ evidence was that it was discussed at about the same time as the stair void packing and that he provided an oral estimate.
I am not satisfied that Mr Goncalves has demonstrated that there are exceptional circumstances nor that he would suffer unreasonable hardship.
Mr Goncalves has not produced any evidence of the costs and profit margin in respect of this item. I am not satisfied that it would not be unfair to Mrs Mahmudov to allow recovery of the amount claimed.
In the circumstances I do not allow any amount for this claim.
Summary – Variations
I find that the amount of $675 is payable in respect of the variations claimed.
Mr Goncalves claimed interest on amounts owing under the Contract.[31] If an owner does not pay any amount owing by the due date there is an entitlement to default interest, which is defined as the annual rate equal to the Commonwealth Bank overdraft index rate: quarterly charging cycle plus 5%.[32]
[31] Clause 33.1.
[32] Clause 38.1.
No evidence as to the Commonwealth Bank overdraft index rate was provided to the Tribunal and therefore there is insufficient evidence for the Tribunal to make a finding as to interest payable under the Contract.
In any event the amounts allowed are not allowed under the Contract but rather under the DBC Act.
I am not satisfied that there is any entitlement to interest.
It is appropriate to deduct the amount of $675 from the amounts owing to Mrs Mahmudov.
Summary of Amounts payable
Mr Goncalves is to pay Mrs Mahmudov the sum of $676.68, being:
Legal fees $1,086.68
Plus filing fees $ 265.00
Less amounts under the DBC Act for variations $ 675.00Total $ 676.68
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