MCD Construction (Qld) Pty Ltd v Architectural Windows & Doors Pty Ltd - [2013] QCAT 570

CITATION:

MCD Construction (QLD) Pty Ltd v Architectural Windows & Doors Pty Ltd [2013] QCAT 570

PARTIES:	MCD Construction (QLD) Pty Ltd (Applicant)
v
Architectural Windows & Doors Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL310-12

MATTER TYPE:

Building matters

HEARING DATE:

3 April 2013; 2 May 2013 and 30 May 2013

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

DELIVERED ON:

24 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Architectural Windows & Doors Pty Ltd pay to MCD Construction (Qld) Pty Ltd the sum of $28,409.00 within 21 days of the date of this Decision.

CATCHWORDS:

Building dispute – terms of contract with supplier of goods – common law estoppel – incorporation of term – sale by description – damages

Domestic Building Contracts Act 2000 s 8
Queensland Building Services Authority Act 1991 ss 77, 75
Sale of Goods Act 1896 ss 14(3),16, 54(2)

Andrews Bros (Bournemouth) Ltd v Singer and Co Ltd [1933] All ER Rep 479
Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Aust) Pty Ltd (No 5) [2012] FCA 908
Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Hadley v Baxendale (1854) 156 ER 145
Hawkins v Clayton (1988) 164 CLR 539
Hill- Douglas v Brkan [2008] QCCTB 148
Romark Design Constructions Pty Ltd v Stephen Larry Hoffmeister [2010] QCAT 586
Smith v New South Wales Switchgear Co Ltd [1978] 1 WLR 165
Theo Holdings Pty Ltd v Hockey (2000) 99 FCR 232
Toll (FGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Want v Majer Tiles Pty Ltd [2010] QCAT 103

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Cameron McDonald, Director, MCD Construction (QLD) Pty Ltd

RESPONDENT:

Mr James Anderson, Manager, Architectural Windows & Doors Pty Ltd

REASONS FOR DECISION
Background

MCD Construction (QLD) Pty Ltd (MCD) is a building contractor. It was represented at the hearing by its Director, Mr Cameron McDonald, who gave evidence. Architectural Windows & Doors Pty Ltd (AWD) is a supplier, manufacturer and installer of windows and doors. It was represented at the hearing by Mr James Anderson, Manager, who also gave evidence.
I find that the following facts occurred, except where I have noted a conflict in the evidence.
MCD was contracted to construct a home at Carey Street, Bardon. The architect’s plans and specifications called for the inclusion of two types of sashless windows to be sourced from and installed by AWD. The sashless windows were specified to be made by Aneeta.
MCD sought a quotation from AWD for the supply and installation of all windows and doors for the project. AWD was provided with a copy of the structural drawings, specification and building schedule.
Ms Nicole Anderson, marketing and sales manager was responsible for preparing quotations. She gave evidence in relation to preparation of the quotation in this case.
A number of quotations were supplied prior to reaching final agreement. Changes to the quotations…

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

AGLC: MCD Construction (Qld) Pty Ltd v Architectural Windows & Doors Pty Ltd [2013] QCAT 570
Case: [2013] QCAT 570
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal was asked to decide a building dispute between MCD Construction (Qld) Pty Ltd (MCD) and Architectural Windows & Doors Pty Ltd (AWD). MCD had contracted to construct a home for the owners at Carey Street, Bardon, and had subcontracted AWD to supply and install two types of sashless windows. MCD sought a quotation from AWD for the supply and installation of all windows and doors for the project, which were specified to be made by Aneeta. Despite changes to the quotations, AWD did not refer to “Aneeta” windows, using only the terminology “sashless inserts”. The final quotation included the cost of sashless inserts and locks manufactured by Jewel Windows, not Aneeta. The dispute arose when leaking of all sashless windows was observed during rain, and the homeowners complained that the windows were not weather proof, allowing considerable leakage into the house. MCD replaced the Jewel Windows with Aneeta windows, and claimed damages for breach of contract. The issues to be determined were whether the terms of the contract between MCD and AWD included a requirement that Aneeta windows be supplied and installed, whether the contract or any applicable statutory obligation had been breached by AWD, and what loss or damage MCD could recover. The Tribunal found that the AWD Terms and Conditions of Sale document and the Jewel Windows warranty appearing in its Terms and Conditions of Trade document formed part of the terms and conditions of the contract between the parties and had been incorporated by reference. The Tribunal also found that it was a term of the contract that Aneeta windows were to be supplied and installed. The Tribunal held that MCD was entitled to claim damages in accordance with the Sale of Goods Act 1896 for breach of the implied condition that the sashless windows would comply with their description and would be Aneeta brand. The Tribunal awarded the sum of $28,409.00 to MCD being damages it is entitled to recover for breach of the statutory implied condition as to compliance with description, in accordance with the Sale of Goods Act 1896. The Tribunal declined to make any order with respect to alleged loss of reputation, loss of ability to market work and legal costs. The Tribunal ordered that Architectural Windows & Doors Pty Ltd pay to MCD Construction (Qld) Pty Ltd the sum of $28,409.00 within 21 days of the date of this Decision.

Orders