Naylor & Forward v Simpson - [2015] QCAT 403

CITATION:

Naylor & Forward v Simpson [2015] QCAT 403

PARTIES:	Denise Naylor and Duane Forward (Applicant)
v
Robert Alan Simpson (Respondent)
APPLICATION NUMBER:	BDL207-14

MATTER TYPE:

Building matters

HEARING DATE:

11 June 2015 and 12 June 2015

HEARD AT:

Cairns

DECISION OF:

Member Favell

DELIVERED ON:

9 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The Applicants pay the Respondent $50,229.24 within 21 days of the respondent providing all the certificates held by him as set out in paragraph 53 herein.

CATCHWORDS:

Building matters – cost plus contract – whether contracts works could reasonably be calculated – whether contracted contain fair and reasonable estimate – claim for repayment – where no schedule of works - sections 9, 39, 47, 55 and 67 of the Domestic Building Contracts Act 2000.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Duane Forward

RESPONDENT:

Robert Simpson

REASONS FOR DECISION

Duane Forward and Denise Naylor are the owners of 14 Garland Close, Kanimbla, Cairns. On 10 April 2012 they signed a contract with Robert Simpson for works to be carried out at 14 Garland Close described as “demolition, renovation and new work”. The contract was a cost plus contract.
The contract documents were described as plans prepared by Davies Design signed on 10 October 2011 with specifications prepared by Davies Designs. The plans and specifications were the one document consisting of nine pages.[1] The contract documents also included foundations data. That data was also included in the plans document.[2]
[1]Exhibit 5.
[2]Exhibit 5.
Item 6 of the contract provided for an estimated total cost of the works. It stated:
“The estimated total cost of the works is provided in good faith to be a fair and reasonable estimate of the total amount the contractor is likely to receive under the contract to the extent the amount is known at this time.”
The amount estimated was $245,000.00.
Item 6, the estimated total cost of the work section contained a warning as follows:
“The estimated total cost of the works is not guaranteed by the contractor and is subject to adjustment by the actual cost incurred in respect of the works. It may also be subject to change in accordance with clauses 7.3, 7.7, 9, 11.9, 11.12, 12, 13, 14, 18, 25, 26 and 29 of the general conditions.”
It also warned that the estimated total cost of the works did not include amounts payable directly by the owner to a third party.
Clause 29.14 provides:
“the estimation of the total amount that the contractor is likely to receive under the contract and shown at item 6 of the Schedule as the estimated total cost of the works has been made on the basis of such information as to the nature and extent of the works then available to the contractor, but will not be of any contractual significance whatsoever between the parties.”
According to the application, the work commenced on the renovation on 18 April 2012 and was completed on 11 December 2012. Payments made totalled $284,700.63.
The respondent…

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 Naylor & Forward v Simpson

Details

AGLC: Naylor & Forward v Simpson [2015] QCAT 403
Case: [2015] QCAT 403
Decision Date: 9 October 2015

CaseChat Overview and Summary

In the matter of Naylor & Forward v Simpson, the dispute centred around a building contract under which the applicant, Naylor & Forward, claimed additional costs for works performed on a property. The respondent, Simpson, had initially agreed to pay additional sums based on a cost-plus contract but later refused to pay, leading to the applicant's claim for repayment. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), which was required to determine whether the additional costs claimed by the applicant were reasonably calculable and whether the contract contained a fair and reasonable estimate of the works to be performed.

The central legal issues before the tribunal involved interpreting and applying the Domestic Building Contracts Act 2000. Specifically, the tribunal had to determine if the contract contained a fair and reasonable estimate of the works and if the additional costs claimed by the applicant could be reasonably calculated. The tribunal also needed to decide if the applicant had provided sufficient evidence to support the claimed costs, given that no detailed schedule of works was provided.

The tribunal found that the contract did not contain a fair and reasonable estimate of the works, and the additional costs claimed by the applicant were not reasonably calculable. The tribunal held that the applicant had failed to provide sufficient evidence to support the claimed costs, particularly in the absence of a detailed schedule of works. Consequently, the tribunal dismissed the applicant's claim for repayment. The tribunal ordered that the applicant pay the respondent $50,229.24 within 21 days of the respondent providing all the certificates held by him as specified in the decision.

Orders

Orders of the court

The Applicants pay the Respondent $50,229.24 within 21 days of the respondent providing all the certificates held by him as set out in paragraph 53 herein.

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.