McGibbo Pty Ltd v Willex Projects Pty Ltd - [2013] QDC 313

DISTRICT COURT OF QUEENSLAND

CITATION:

McGibbo Pty Ltd v Willex Projects Pty Ltd [2013] QDC 313

PARTIES:

McGIBBO PTY LTD as trustee for the McGIBBO FAMILY TRUST

ACN 143 266 817
(Plaintiff)

v

WILLEX PROJECTS PTY LTD

ACN 123 600 975
(Defendant)

FILE NO/S:

4937/12

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 - 27 November 2013

JUDGE:

Kingham DCJ

ORDER:

1.     The defendant must pay the plaintiff the sum of $85,516.50 plus interest on that sum pursuant to s 58 of the Civil Proceedings Act 2011 (Qld), calculated from 13 December 2012 to the date of judgment, in accordance with District Court Practice Direction No. 6 of 2013.

2.     Unless either party files written submissions within 7 days seeking a different order, Willex must pay McGibbo’s costs of and incidental to the proceedings as assessed on the standard basis, if not agreed.

3.     If any party submits for a different order, they must serve a copy of their submissions on the other party, who will have 7 days within which to provide written submissions in response. Costs will be determined without a further oral hearing, unless either party requests one.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING & RELATED CONTRACTS – where McGibbo engaged Willex to build a house – where McGibbo disputed the quality of the concrete slab constructed by Willex – where Willex claimed payment for completing the base stage of the construction – where Willex denied there were any substantial defects in the slab – where McGibbo claimed it was entitled to terminate the contract as Willex claimed payment it was not entitled to & was unwilling to rectify the defects – whether McGibbo was entitled to terminate the contract – whether the base stage was completed when the payment claim was issued – whether the method of construction complied with the contract – whether the slab was defective when the base stage claim was issued or when the contract was terminated.

CONTRACTS – BUILDING, ENGINEERING & RELATED CONTRACTS – DAMAGES – where it is found that Willex breached a number of contractual conditions – where it is found that Willex was not entitled to issue the relevant payment claim – where it is found that McGibbo was entitled to terminate the contract – where McGibbo later engaged a different contractor to complete the house – where McGibbo carried out remediation work on the slab - whether McGibbo took reasonable steps to minimise the loss that flowed from termination.

CONTRACTS – DOMESTIC BUILDING CONTRACTS ACT 2000 (QLD) – DESIGNATED STAGES CONTRACT – where the contract excluded certain works – whether the contract was a designated stages contract – whether the contract was to build to the fixing stage – whether the builder could claim more than the regulated percentage for the base stage.

Civil Proceedings Act 2011 (Qld), s 58.

Domestic Building Contracts Act 2000 (Qld), s 66 & Schedule 2.

Domestic Building Contracts Regulation…

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: [2013] QDC 313
Decision Date: 18 December 2013

CaseChat Overview and Summary

McGibbo Pty Ltd sought a determination as to whether it was entitled to terminate a contract with Willex Projects Pty Ltd, who had been engaged to construct a house. McGibbo disputed the quality of the concrete slab constructed by Willex and claimed it was entitled to terminate the contract as Willex had claimed payment it was not entitled to and was unwilling to rectify the defects. Willex, on the other hand, denied there were any substantial defects in the slab and sought payment for completing the base stage of the construction. The court was required to decide whether McGibbo was entitled to terminate the contract, whether the base stage was completed when the payment claim was issued, whether the method of construction complied with the contract, and whether the slab was defective when the base stage claim was issued or when the contract was terminated. The court also needed to determine whether McGibbo took reasonable steps to minimise the loss that flowed from termination.

The court held that McGibbo was entitled to terminate the contract because Willex breached a number of contractual conditions, including the method of construction, and was not entitled to issue the relevant payment claim. The court also found that the slab was defective when the base stage claim was issued and when the contract was terminated. The court further held that McGibbo took reasonable steps to minimise the loss that flowed from termination by engaging a different contractor to complete the house and carrying out remediation work on the slab. The court ordered that Willex must pay McGibbo the sum of $85,516.50 plus interest and costs. If either party sought a different order, they were required to serve a copy of their submissions on the other party, who would have 7 days within which to provide written submissions in response. Costs would be determined without a further oral hearing, unless either party requested one.

Orders

Orders of the court

1. The defendant must pay the plaintiff the sum of $85,516.50 plus interest on that sum pursuant to s 58 of the Civil Proceedings Act 2011 (Qld), calculated from 13 December 2012 to the date of judgment, in accordance with District Court Practice Direction No. 6 of 2013.

2. Unless either party files written submissions within 7 days seeking a different order, Willex must pay McGibbo’s costs of and incidental to the proceedings as assessed on the standard basis, if not agreed.

3. If any party submits for a different order, they must serve a copy of their submissions on the other party, who will have 7 days within which to provide written submissions in response. Costs will be determined without a further oral hearing, unless either party requests one.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McGibbo Pty Ltd v Willex Projects Pty Ltd [2013] QDC 313
PARTIES:	McGIBBO PTY LTD as trustee for the McGIBBO FAMILY TRUST ACN 143 266 817 (Plaintiff) v WILLEX PROJECTS PTY LTD ACN 123 600 975 (Defendant)
FILE NO/S:	4937/12
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	25 - 27 November 2013
JUDGE:	Kingham DCJ
ORDER:	1. The defendant must pay the plaintiff the sum of $85,516.50 plus interest on that sum pursuant to s 58 of the Civil Proceedings Act 2011 (Qld), calculated from 13 December 2012 to the date of judgment, in accordance with District Court Practice Direction No. 6 of 2013. 2. Unless either party files written submissions within 7 days seeking a different order, Willex must pay McGibbo’s costs of and incidental to the proceedings as assessed on the standard basis, if not agreed. 3. If any party submits for a different order, they must serve a copy of their submissions on the other party, who will have 7 days within which to provide written submissions in response. Costs will be determined without a further oral hearing, unless either party requests one.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING & RELATED CONTRACTS – where McGibbo engaged Willex to build a house – where McGibbo disputed the quality of the concrete slab constructed by Willex – where Willex claimed payment for completing the base stage of the construction – where Willex denied there were any substantial defects in the slab – where McGibbo claimed it was entitled to terminate the contract as Willex claimed payment it was not entitled to & was unwilling to rectify the defects – whether McGibbo was entitled to terminate the contract – whether the base stage was completed when the payment claim was issued – whether the method of construction complied with the contract – whether the slab was defective when the base stage claim was issued or when the contract was terminated. CONTRACTS – BUILDING, ENGINEERING & RELATED CONTRACTS – DAMAGES – where it is found that Willex breached a number of contractual conditions – where it is found that Willex was not entitled to issue the relevant payment claim – where it is found that McGibbo was entitled to terminate the contract – where McGibbo later engaged a different contractor to complete the house – where McGibbo carried out remediation work on the slab - whether McGibbo took reasonable steps to minimise the loss that flowed from termination. CONTRACTS – DOMESTIC BUILDING CONTRACTS ACT 2000 (QLD) – DESIGNATED STAGES CONTRACT – where the contract excluded certain works – whether the contract was a designated stages contract – whether the contract was to build to the fixing stage – whether the builder could claim more than the regulated percentage for the base stage. Civil Proceedings Act 2011 (Qld), s 58. Domestic Building Contracts Act 2000 (Qld), s 66 & Schedule 2. Domestic Building Contracts Regulation…