Mt Cotton Constructions Pty Ltd v Greer

Case [2017] QCAT 11

CITATION:

Mt Cotton Constructions Pty Ltd v Greer [2017] QCAT 11

PARTIES:

Mt Cotton Constructions Pty Ltd
(Applicant)
v

Damien Greer
Kate Greer
(Respondents)

APPLICATION NUMBER:

BDL190-14

MATTER TYPE:

Building matters

HEARING DATE:

10, 11, 12, 13 and 14 October 2016

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

17 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The Applicant’s claim is dismissed.

2.    The Respondents’ counter application is dismissed.

3.    The parties file and serve submissions as to costs within 7 days of the date of this order and each file and serve any submissions in reply within another 7 days thereafter.

CATCHWORDS:

CONTRACTS – BUILDING AND, CONSTRUCTION CONTRACTS –
INTERPRETATION OF THE CONTRACT DOCUMENTS – RULES OF CONSTRUCTION – where contract terms unclear – ambiguity – evidence of surrounding circumstances – contract able to be given meaning

CONTRACTS – BUILDING AND, CONSTRUCTION CONTRACTS – VARIATIONS – builder’s failure to comply with statutory requirements – claim for restitution by owners – claim for all moneys paid for variations - voluntary payment – effect of s 84 Domestic Building Contracts Act 2000 (Qld) – owners not entitled to recover moneys paid
CONTRACTS – BUILDING AND, CONSTRUCTION CONTRACTS – DAMAGES –- owners giving credit for value of fixed price and variation work – owners suffering no loss

Domestic Building Contracts Act 2000 (Qld), s 16, s 26, s 27, s 28, s 29, s 55, s 84, s 92, s 93
Queensland Building and Construction

Commission Act 1991 (Qld), s 42
Acts Interpretation Act 1954 (Qld), s 3, s 5C(1)

Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] NSWCA 65
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Gladstone Area Water Board & Anor v AJ Lucas Operations Pty Ltd [2014] QSC 311
Royal Botanic Gardens And Domain Trust V South Sydney City Council [2002] HCA 5
Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Venamore T/as Kobble Gardens v Reynolds [2003] QCCTB 71
Thompson Residential Pty Ltd v Tran [2014] QDC 156
Allaro Homes Cairns Pty Ltd v O’Reilly [2012] QCA 286
CMF Projects Pty Ltd v Riggall [2014] QDC 90
CMF Projects Pty Ltd v Riggall [2014] QCA 318
Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75
Office Shop Renovations Australia Pty Ltd v Zhou & Anor [2014] QCAT 510
Marshall v Marshall [1999] 1 Qd R 173
R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8
Tabcorp Holdings Limited v Victoria [2016] HCA 4
Robinson v Harman (1848) 1 Exch 850
Mertens v Home Freeholds Company [1921] 2 KB 526
Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18
Tan Hung Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178
Cordon Investments Pty…

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Details
AGLC
Mt Cotton Constructions Pty Ltd v Greer [2017] QCAT 11
Case
[2017] QCAT 11
Decision Date

CaseChat Overview and Summary

Mt Cotton Constructions Pty Ltd sought to recover monies paid by Greer to the builder for variations under a building contract, arguing that the builder had failed to comply with statutory requirements. The dispute was heard and determined in the Queensland Civil and Administrative Tribunal. The central legal issue before the Tribunal was whether the Greers were entitled to a refund of the moneys paid for the variations, given the builder's non-compliance with statutory requirements under the Domestic Building Contracts Act 2000 (Qld). The Greers argued that the builder's failure to comply with the statutory requirements rendered the contract void or voidable, and thus they were entitled to a refund of all monies paid for the variations. The Tribunal considered whether the Greers were entitled to a refund under section 84 of the Act, which provides that a home owner is not entitled to recover any moneys paid under a domestic building contract if the home owner gave credit for the value of the work done. The Tribunal found that the Greers had given credit for the value of the fixed price and variation work, and therefore they had suffered no loss. The Greers were not entitled to a refund of the moneys paid for the variations. The Tribunal dismissed the Greers' claim and the builder's counter application. The parties were ordered to file and serve submissions as to costs within 7 days of the date of the order and each file and serve any submissions in reply within another 7 days thereafter.

Orders

Orders of the court

1. The Applicant’s claim is dismissed.

2. The Respondents’ counter application is dismissed.

3. The parties file and serve submissions as to costs within 7 days of the date of this order and each file and serve any submissions in reply within another 7 days thereafter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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