MCC Pty Ltd v Greer - [2022] QCAT 410

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MCC Pty Ltd v Greer & Anor [2022] QCAT 410

PARTIES:

MCC Pty Ltd (formerly mt Cotton constructions Pty Ltd)

(applicant)

v

Damien Greer

(first respondent)

Kate Greer

(second respondent)

APPLICATION NO/S:

BDL190-14

MATTER TYPE:

Building matters

DELIVERED ON:

20 December 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.       The Applicant’s claim is dismissed.

2.       The Respondents’ counter application is dismissed.

3.       The parties file and serve submissions as to costs of and incidental to the remitter within 28 days of the date of this order and each file and serve any submissions in reply within 14 days thereafter.

CATCHWORDS:

CONTRACTS – BUILDING AND CONSTRUCTION CONTRACTS – VARIATIONS – where the matter was remitted to the Tribunal from the Appeal Tribunal – where the Tribunal was required to determine whether and to what extent the contract price of work under the contract was varied and the scope of work if varied – where the variations were not variations of the contract – where the extra work done by the builder was outside the terms of the contract and did not add to the contract price or vary the original scope of work under the contract – where the claim of the respondents was for damages for breach of statutory and contractual warranty as to workmanship – where the statutory and contractual warranty did not extend to extra work performed outside the terms of contract

Domestic Building Contract Act 2000 (Qld), s 6, s 16, s 43, s 44. s 84(4)

Balfour Beatty Power Construction Australia Pty Ltd v Kidston Goldmines Ltd (1989) 2 Qd R 105

Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [2021] QSC 224
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213
Champion Homes Sales Pty Ltd v DCT Projects Pty Ltd [2015] NSWSC 616
Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27
Mann v Peterson Constructions Pty Ltd (2019) 267 CLR 560
Moratic Pty Ltd v Gordon [2007] NSWSC 5
Mt Cotton Constructions Pty Ltd v Greer [2017] QCAT 11
Potts v T & M Buckley Pty Ltd t/a Shailer Constructions [2010] QCAT 638
R v Peto (1826) Y. & J. Ex 37

Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) NSWLR 251

APPEARANCES & REPRESENTATION:

Applicant:

F C Lawyers

Respondent:

L Campbell instructed by Gadens

REASONS FOR DECISION

This matter involves a building dispute in which, following a 5 day hearing, I ordered the claim of the applicant builder (‘the builder’) be dismissed and the counter application by the respondent owners (‘the respondents’) also be dismissed.
At issue was the construction of the contract, the builder’s claim for payment for variation work performed and the respondents’ counter application for the cost of rectifying defects with respect to that variation work.
Following appeal the matter has been…

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 MCC Pty Ltd v Greer

Details

AGLC: MCC Pty Ltd v Greer [2022] QCAT 410
Case: [2022] QCAT 410
Decision Date

CaseChat Overview and Summary

This case concerns a building dispute in which the applicant builder, MCC Pty Ltd, sought payment for variations to the contract, while the respondent homeowners, Damien and Kate Greer, sought damages for defective work. The dispute was remitted to the Tribunal for further rehearing following an appeal. The central issue was whether the variations were part of the contract and if so, whether the builder was entitled to payment for the variations given the failure to comply with statutory requirements. The court held that the variations were not variations of the contract as there was no mutual agreement between the parties regarding the scope of work or price. The builder's mistaken belief that the contract was a cost-plus one did not alter the fact that the variations were not part of the contract. The builder's claim for the value of the variation work could not be pursued under the contract or through a claim in quantum meruit. Similarly, the respondents' claims for breach of statutory and contractual warranties failed as the variation work was not part of the subject work under the contract. The court dismissed both the applicant's claim and the respondents' counter-application. The parties were ordered to file and serve submissions on costs within specified timeframes.

Orders