Mair Renovations v Miller - [2015] QCAT 333

CITATION:	Mair Renovations v Miller [2015] QCAT 333
PARTIES:	Jeffrey Mair t/as Mair Renovations Pamela Mair t/as Mair Renovations (Applicants)
v
Duncan Thomas Miller Genevieve Kay Miller (Respondents)

APPLICATION NUMBER:

BDL271-13

MATTER TYPE:

Building matters

HEARING DATE:

17-21 November 2014; 22 January 2015; and
2 April 2015

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

24 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Jeffrey Mair and Pamela Mair trading as Mair Renovations to pay Duncan Thomas Miller and Genevieve Kay Miller the amount of $200,870.28 by 4:00 pm on 21 October 2015.

2. Any submissions on costs to be filed in the Tribunal and served on the other party by 4:00 pm on 6 October 2015.

3. Any submissions on costs in reply to be filed in the Tribunal and served on the other party by 4:00 pm on 19 November 2015.

4. Unless agreed or otherwise determined by the Tribunal by 14 days after 19 November 2015, any application for costs will be determined on the papers without an oral hearing by the member who conducted the hearing in the proceedings.

CATCHWORDS:

BUILDING DISPUTE – where contract to carry out domestic building work – where architect to administer the contract – where no date for practical completion inserted in the contract – whether contract included upstairs flooring – where claim for variations not made in writing – whether variations should be approved by the Tribunal – where homeowners moved into house – whether practical completion was reached – whether homeowners should pay for certificates issued for payment – whether implied date for completion of work – whether contract was terminated by homeowners – whether builder should attend to rectification of defective work – whether builder should pay the costs of defective work

Domestic Building Contracts Act 2000 (Qld), s 77, s 79, s 80, s 81, s 82, s 83, s 84
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28

D.T.R. Nominees Pty Ltd v Mona Homes Pty Ltd (1977-1978) 138 CLR 423, cited
Mair v Queensland Building Construction Commission [2014] QCAT 566, cited
Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8, cited

APPEARANCES:

APPLICANT:

Mr S Lynch of Counsel instructed by Daley Law Practice

RESPONDENT:

Ms S McNeil of Counsel instructed by CBP Lawyers

REASONS FOR DECISION

Duncan Thomas Miller and Genevieve Kay Miller (the Millers) owned an old Queenslander that they rented out for many years. They wanted to renovate it so they could move in and live upstairs and rent out the downstairs.
The Millers approached an architect, Robert Eccles, about their idea. They had many discussions about Mr Eccles’ renovation plans. The plans were put out to tender and Jeffrey Mair and Pamela Mair trading as Mair Renovations (Mair Renovations) were the successful builder.
The parties signed a Master Builders Simple Works contract on 14 September 2009 (the Contract). Jeffrey Mair was a registered builder at the time and signed the Contract as…

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: [2015] QCAT 333
Decision Date: 24 August 2015

CaseChat Overview and Summary

Mair Renovations, the appellant, engaged in a domestic building project for the Millers, the respondents, under a contract administered by an architect. The dispute arose over various issues including the scope of work, the timing of practical completion, and payment for work done. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues before the Tribunal were whether the contract included upstairs flooring, whether variations to the contract were properly documented, and whether the homeowners were required to pay for certificates issued for payment. Additionally, the Tribunal had to determine if the homeowners had effectively terminated the contract, and whether the builder was obliged to rectify defective work and cover the associated costs.

The Tribunal found that the contract did not explicitly include upstairs flooring, but it was implied that the builder should complete all work to a satisfactory standard. The Tribunal also ruled that variations to the contract should have been documented in writing but allowed the builder to proceed with the variations in question. Practical completion was deemed to have been reached when the homeowners moved into the house, and thus, they were required to pay for the certificates issued for payment. The Tribunal concluded that the contract did not specify a date for practical completion, but an implied date was established by the circumstances. The Tribunal found that the homeowners had not effectively terminated the contract and that the builder was responsible for rectifying defective work and paying for it.

The Tribunal ordered that Mair Renovations pay the Millers $200,870.28 by a specified date. Submissions on costs were to be filed and served by specified dates, with any costs applications to be determined on the papers unless otherwise decided by the Tribunal. This decision highlights the importance of clear documentation and adherence to contractual obligations in domestic building projects.

Orders

Orders of the court

1. Jeffrey Mair and Pamela Mair trading as Mair Renovations to pay Duncan Thomas Miller and Genevieve Kay Miller the amount of $200,870.28 by 4:00 pm on 21 October 2015.

2. Any submissions on costs to be filed in the Tribunal and served on the other party by 4:00 pm on 6 October 2015.

3. Any submissions on costs in reply to be filed in the Tribunal and served on the other party by 4:00 pm on 19 November 2015.

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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