Michelle Boyes v Graham Maddisson - [2021] QCAT 423

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Michelle Boyes & Anor v Graham Maddisson & Anor [2021] QCAT 423

PARTIES: MICHELLE BOYES
IAN BOYES

(applicant)

v

GRAHAM MADDISSON
MADDISSON CONSTRUCTION AND DESIGN PTY LTD

(respondent)

APPLICATION NO/S:

BDL064-19

MATTER TYPE:

Building matters

DELIVERED ON:

8 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

1.       The application for domestic building dispute filed on 22 February 2019 is dismissed.

2.       It is declared that the applicants and respondents entered into terms of settlement dated 10 September 2019 (the Settlement Agreement) on the basis that the proceeding BDL064-19 is resolved and the Settlement Agreement is binding as a contract, on the following terms:

(a)    The respondents agree to pay $23,950.00 to the applicants no later than 10 March 2020 (the settlement sum); and

(b)   The respondents agree to provide to the applicants any certificates in respect of the work performed under or in respect of the original building contract at [the property] within 14 days of signing the Settlement Agreement (the certificates).

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where parties entered into settlement agreement – where party seeks order enforcing settlement agreement – whether settlement agreement amounted to an accord and satisfaction of the rights under the original contract – where there is no final order – whether tribunal has jurisdiction to make orders

PROCEDURE – STATE AND TERRITORY COURTS – OTHER MATTERS – where parties entered into settlement agreement – whether the tribunal has the power to determine the matter under the Queensland Building and Construction Commission Act 1991 (Qld) – where the Tribunal initiates an application to dismiss under s 47 of the Queensland Civil and Administration Tribunal Act 2009 (Qld) and to make a declaration under s 60

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 60, s 84, s 131, s 132

Azad v Ljubas [2007] QDC 018

McDermott v Black (1940) 63 CLR 161
McEwen v Barker Builders Pty Ltd [2010] QCATA 49

Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The applicants seek an order from the Tribunal enforcing a settlement agreement signed by the applicants and respondents at a compulsory conference that proceeded before this Tribunal on 10 September 2019.[1]
[1]Applicants’ submissions filed 13 April 2021.
By way of background, the applicants engaged the respondents to perform building work. The parties signed a HIA new home construction contract in or about December 2016 (‘the original building contract’).
A dispute followed in relation to the performance of the work by the respondent builder, including claims by the applicant home owners for alleged incomplete and defective items of building work.
The applicants filed an application for a…

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 Michelle Boyes v Graham Maddisson

Details

AGLC: Michelle Boyes v Graham Maddisson [2021] QCAT 423
Case: [2021] QCAT 423
Decision Date

CaseChat Overview and Summary

In Michelle Boyes v Graham Maddisson, the applicants sought an order from the Queensland Civil and Administrative Tribunal (QCAT) enforcing a settlement agreement signed by the parties at a compulsory conference. The applicants, who engaged the respondents to perform building work, had filed an application for a domestic building dispute on 22 February 2019. The respondents filed a counter-application on 10 September 2019. At a compulsory conference on 10 September 2019, the parties signed an agreement (the Settlement Agreement). The Tribunal chairing the conference did not make any order in relation to the domestic building dispute application. The applicants subsequently sought to enforce the Settlement Agreement, claiming the respondents had failed to pay the settlement sum and provide certificates as agreed. The primary issue for the Tribunal was whether the Settlement Agreement amounted to an accord and satisfaction of the respective parties' rights and obligations under the original building contract.

The Tribunal found that the Settlement Agreement was binding on the parties and that it amounted to an accord and satisfaction of the rights and obligations under the original building contract. The Tribunal noted that the Settlement Agreement clearly provided for full and final satisfaction of the proceeding and that the parties had freely entered into the agreement. The Tribunal dismissed the applicants' application for a domestic building dispute on the basis that the proceeding was lacking in substance, as the parties had already resolved their dispute by entering into the Settlement Agreement. The Tribunal also made a declaration under s 60 of the QCAT Act that the Settlement Agreement was binding as a contract, on the terms that the respondents must pay $23,950.00 to the applicants and provide certificates within 14 days of signing the agreement. The applicants' claim for additional costs was refused as there was no longer a building dispute before the Tribunal for which it could exercise its powers under the Queensland Building and Construction Commission Act 1991.

Orders