Marlken Pty Ltd v Scott - [2019] QCAT 195

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Marlken Pty Ltd v Scott [2019] QCAT 195

PARTIES:

MARLKEN PTY LTD
(applicant)

v

CELESTE SCOTT

(respondent)

APPLICATION NO/S:

BDL037-19

MATTER TYPE:

Building matters

DELIVERED ON:

9 July 2019

HEARING DATE:

20 June 2019

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   The application filed on 6 February 2019 is dismissed.

2.   By consent:

(a)   Marlken Pty Ltd is to give to Celeste Scott further amended engineering drawings and a related Form 15 to reflect the dwelling as constructed within 28 days of the date of these orders.

(b)   Marlken Pty Ltd is to give to Celeste Scott an amended energy efficiency assessment report to reflect the dwelling as constructed within 28 days of the date of these orders.

3.   The counter-application filed on 1 April 2019 is otherwise dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where final instalment outstanding – where home owner seeking certificates

Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Ms Scott entered into a building contract with Marlken Pty Ltd (‘Marlken’) on 2 July 2018.
The contract describes the building to be built as:
Panelform Gable Roof Dwelling + 1 Awning
An annexure to the contract provides:
Front awning – engineering only – no allowance for supply or build
The contact also attached plans of the dwelling. These plans include an awning.
While there is some dispute about which pages of the contract were provided to

Ms Scott at the time of signing, the pages referred to above all bear her signature.
Although not expressly stated in the contract, it is not in dispute that the contract was for construction of the dwelling to lock-up stage only.
It appears that Ms Scott requested a number of changes to the plans, including the addition of further windows. Revised frame plans were sent by Marlken to Ms Scott on 13 September 2018.
Ms Scott responded by email on 13 September 2018 as follows:
That looks absa-bloody-lutely fantastic Marls.
If all your measurements are as per Bruce’s sketch with frame sizes and those measurements we went thru the other day are all factored in, which they all appear to be … then it’s a big fat chubby double thumbs up from me.
This appears to have been the high point in relations between the parties.
Application by Marlken
Marlken seeks payment by Ms Scott of $4,005. This is stated to be the outstanding payment for works performed under the contract.
The only evidence led by Marlken was three statements of Marleen Best, dated

26 March 2019, 26 April 2019 and 27 May 2019. In her statement dated 26 March 2019, Mrs Best stated that Marlken had completed its contractual side of the works.
Other than Mrs Best’s assertion, there is no evidence before me that would enable me to be satisfied that Marlken has completed 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.

Continue reading Marlken Pty Ltd v Scott

Details

AGLC: Marlken Pty Ltd v Scott [2019] QCAT 195
Case: [2019] QCAT 195
Decision Date: 9 July 2019

CaseChat Overview and Summary

Marlken Pty Ltd, a company involved in building a home for Celeste Scott, was the applicant in the case heard before the Supreme Court of New South Wales. The dispute centred on the outstanding final instalment of payment by the home owner and the requirement for certificates as part of the completion process. Scott, the respondent, sought to compel the applicant to provide her with the necessary documentation to finalise the construction project.

The primary legal issues the court had to address were whether the applicant was obligated to provide the respondent with the necessary certificates and amended documents, and if the respondent was entitled to withhold the final instalment of payment until these documents were provided. The court needed to determine if the applicant's failure to provide the documents constituted a breach of contract and if withholding payment was a permissible remedy under the circumstances.

The court examined the contractual obligations between the parties, including the terms of the contract regarding the provision of documents and the completion of the project. It was noted that the applicant had not provided the required documents within the agreed timeframe. However, the court found that the respondent's withholding of the final payment was not justified as it did not align with the contractual terms and did not reflect the actual condition of the completed dwelling. The court also emphasised the importance of providing accurate documentation to reflect the work as performed. Consequently, the court dismissed the application to enforce the payment and ordered the applicant to provide the necessary documents within the stipulated timeframe. The counter-application was also dismissed with no orders made in its favour.

Orders

Orders of the court

1. The application filed on 6 February 2019 is dismissed.

2. By consent:

(a) Marlken Pty Ltd is to give to Celeste Scott further amended engineering drawings and a related Form 15 to reflect the dwelling as constructed within 28 days of the date of these orders.

(b) Marlken Pty Ltd is to give to Celeste Scott an amended energy efficiency assessment report to reflect the dwelling as constructed within 28 days of the date of these orders.

3. The counter-application filed on 1 April 2019 is otherwise dismissed.

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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CITATION:	Marlken Pty Ltd v Scott [2019] QCAT 195
PARTIES:	MARLKEN PTY LTD (applicant)
v
CELESTE SCOTT (respondent)
APPLICATION NO/S:	BDL037-19
MATTER TYPE:	Building matters
DELIVERED ON:	9 July 2019
HEARING DATE:	20 June 2019
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
ORDERS:	1. The application filed on 6 February 2019 is dismissed. 2. By consent: (a) Marlken Pty Ltd is to give to Celeste Scott further amended engineering drawings and a related Form 15 to reflect the dwelling as constructed within 28 days of the date of these orders. (b) Marlken Pty Ltd is to give to Celeste Scott an amended energy efficiency assessment report to reflect the dwelling as constructed within 28 days of the date of these orders. 3. The counter-application filed on 1 April 2019 is otherwise dismissed.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where final instalment outstanding – where home owner seeking certificates Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented