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
Queensland Civil and Administrative Tribunal Act 2009, s 100

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

Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 37
Poiner v Quirk [2007] QDC 299

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…

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 Mahmudov v Goncalves

Details

AGLC: Mahmudov v Goncalves [2012] QCAT 629
Case: [2012] QCAT 629
Decision Date

CaseChat Overview and Summary

The case of Mahmudov v Goncalves [2012] QCAT 629 involves a domestic building dispute between Mrs. Natalia Mahmudov, the homeowner, and Mr. Jose Goncalves, the builder, regarding work performed under a domestic building contract. The primary legal issues were whether Mrs. Mahmudov was lawfully entitled to terminate the contract, the validity of her claims for incomplete work, rectification costs, damages for late completion, and the delivery up of certificates. The court also had to determine the legitimacy of Mr. Goncalves' claims for variations and whether he was entitled to interest and costs.

The court found that Mrs. Mahmudov was entitled to terminate the contract as Mr. Goncalves had failed to perform his obligations and had not attempted to remedy any breaches within the specified period. It was also determined that Mrs. Mahmudov was not in breach for not paying for variations that were not documented in writing, as required by the Domestic Building Contracts Act 2003. The court ruled that Mr. Goncalves was not entitled to withhold certificates until he received payment for amounts owing under the contract. Mrs. Mahmudov was not entitled to damages for late completion, as she did not challenge the notice of practical completion within the required timeframe. Legal costs incurred due to Mr. Goncalves' breach were awarded to Mrs. Mahmudov, but costs for the proceedings were to be borne by the parties themselves. The court allowed partial recovery for variations not documented in writing, as required by the Domestic Building Contracts Act 2003, and disallowed interest due to insufficient evidence.

The final orders were that Mr. Goncalves was to pay Mrs. Mahmudov $676.68 by 4:00pm on 21 January 2013, and deliver up certificates and documents related to the works undertaken at 45 Clough St, Mt Gravatt East.

Orders