Michelsen v Pivovarova

[2017] QCAT 235

CITATION:

Michelsen v Pivovarova [2017] QCAT 235

PARTIES:

Peter B. Michelsen t/as Peter Michelsen Building Service ABN 84003506297
(Applicant)

v

Tatiana Pivovarova

(Respondent)

APPLICATION NUMBER:

BDL245-12

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

10 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The Respondent, Ms Tatiana Pivovarova, to pay the sum of $40,990.00, together with interest from 12 July 2012 at the rate of 15%, to the Applicant, Peter B. Michelsen t/as Peter Michelsen Building Service ABN 84003506297, no later than 1 August 2017.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTACTS – PERFORMANCE OF WORK – where homeowner alleged practical completion not reached – where QBSA alleged minor defects did not prevent practical completion - where entitlement to payment reached – contract substantially performed

Domestic Building Contracts Act 2000 (Qld), s 67(6)

Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132

APPEARANCES:

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

REASONS FOR DECISION

1. This domestic building dispute has been returned to the Tribunal following an appeal. Ms Tatiana Pivovarova is a homeowner, who contracted with Mr Peter B Michelsen t/as Peter Michelsen Building Service, to build a new house located at Brookwater.

2. Mr Michelsen applied in the Tribunal for Orders requiring Ms Pivovarova to pay the final/practical completion stage payment he said was owing under the contract, in the amount of $49,500.00. Additionally, Mr Michelsen requested interest on the payment, at the contractually agreed amount of 15% per annum, from the date of the final inspection, which occurred on 12 July 2012.

3. Ms Pivovarova disputes that practical completion had been achieved, and says that Mr Michelsen’s entitlement to payment has not arisen.

4. Ms Pivovarova did not make a counter-claim in these proceedings. Although Ms Pivovarova argued on appeal that the Tribunal failed to deal with her claim for liquidated damages against the builder, the Appeal Tribunal dismissed this ground of appeal, finding that this was not surprising in circumstances where ‘there was no clear evidence for the learned Member to rely upon to make a finding that liquidated damages were payable’.

5. On 11 October 2011, the parties entered into a Master Builders June 2010 edition residential building contract, and general conditions. Under the contract, the practical completion stage is defined to mean:

   That stage of the Works when the Works are completed in accordance with the Contract and all relevant statutory requirements, apart from minor omissions or minor defects, and the Works are reasonably suitable for habitation.

6. As this was a contract for domestic building work, some guidance can also be taken from the Domestic Building Contracts Act 2000 (Qld) (DBC Act)[1], s 67(6) which defined the practical completion stage to mean the stage when:

   (a) the subject work has been completed in accordance with the contract and all relevant statutory requirements, either ––

   (i)without any…