Number One Quality Homes Pty Ltd v Murphy - [2024] QCAT 605

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Number One Quality Homes Pty Ltd v Murphy [2024] QCAT 605

PARTIES:

NUMBER ONE QUALITY HOMES PTY LTD

(applicant)

v

JUDITH MURPHY
DANIEL MURPHY

(respondents)

APPLICATION NO:

BDL364-18

MATTER TYPE:

Building matters

DELIVERED ON:

27 December 2024

HEARING DATE:

18 July 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1.    Number One Quality Homes Pty Ltd pay to Judith Murphy and Daniel Murphy $28,373.92 within 28 days of this order.

2.    Any application for the costs of the proceeding, together with any submissions in support of the application, be filed in the Tribunal and served on the other party by email, by:

24 January 2025.

3.    Any submissions in reply to an application for the costs of the proceeding filed in accordance with order 2 be filed in the Tribunal and served on the other party by email, by:

14 February 2025.

4.    Any application for the costs of the proceeding filed in accordance with order 2 be decided by the Tribunal on the papers, after:

14 February 2025.

CATCHWORDS:

DOMESTIC BUILDING DISPUTE – where parties entered a cost plus contract – level 2 (residential) for the construction of a granny flat and home– where the building work commenced and was substantially complete– where the respondents took possession of the home– where the respondents withdrew from the contract on grounds the applicant had failed to provide them with a copy of the signed contract and a copy of the consumer building guide– where the parties agreed the facts and issues to be decided by the Tribunal– whether, as a matter of law, a person can be estopped from exercising their statutory right to withdraw under section 35(3) of schedule 1B to the Queensland Building and Construction Commission Act 1991 (Qld)– whether the respondents were estopped by their conduct from withdrawing from the contract

Domestic Building Contracts Act 2000 (Qld) (now repealed), s 72, s 93
Home Building Act 1989 (NSW), s 96A
Property Agents and Motor Dealers Act 2000 (Qld), s 140
Property, Stock and Business Agents Act 1941 (NSW), s 42AA

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 5, s 108D, sch 1B, s 1, s 7, s 18, s 35, s 36, s 37, s 38, s 39, s 40, s 44, s 46

Allen & Anor v Contrast Constructions Pty Ltd (No. 3) [2021] QCATA 143
M J Arthurs Pty Ltd v Isenbert [2017] QDC 85
Barilla v James [1964-5] NSWR 741
Barport Pty Ltd v Baum [2019] VSCA 167
Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373
Blackman v Milne [2006] QSC 350; [2007] 1 Qd R 198
Collis v Currumbin Investments Pty Ltd [2009] QSC 297
Commonwealth v Verwayen (1990) 170 CLR 394
Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1
Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209
Equuscorp…

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: [2024] QCAT 605
Decision Date: 27 December 2024

CaseChat Overview and Summary

The case of Number One Quality Homes Pty Ltd v Murphy was decided by the Queensland Civil and Administrative Tribunal. The dispute arose from a cost-plus contract between the parties, which involved the construction of a residential granny flat and a home. The building work was commenced and substantially completed, with the respondents subsequently taking possession of the home. However, the respondents withdrew from the contract, asserting that the applicant had failed to provide them with a signed copy of the contract and a copy of the consumer building guide, which they claimed was a breach of statutory obligations under the Queensland Building and Construction Commission Act 1991 (Qld). The tribunal was tasked with determining whether the respondents were estopped from exercising their statutory right to withdraw from the contract and whether their conduct amounted to an estoppel.

The primary legal issue before the tribunal was whether the respondents could be estopped from exercising their statutory right to withdraw from the contract under section 35(3) of schedule 1B to the QBCC Act. The tribunal examined whether the conduct of the respondents, if any, amounted to representations that they did not require the signed contract or the consumer building guide, and whether the applicant had relied on such representations to their detriment. The tribunal also had to determine whether it was unconscionable for the respondents to withdraw from the contract given their conduct.

In its decision, the tribunal concluded that the respondents could not be estopped from exercising their statutory right to withdraw from the contract, regardless of their conduct. The tribunal found that the respondents did not engage in the specific conduct alleged by the applicant and that their conduct did not amount to representations that they did not require the signed contract or the consumer building guide. Furthermore, the tribunal determined that the applicant did not rely on any such representations to its detriment and that it was not unconscionable for the respondents to withdraw from the contract. Consequently, the tribunal ruled in favour of the respondents and ordered the applicant to pay the respondents the difference between the amount paid by the respondents to the applicant and the applicant's out-of-pocket expenses incurred before the notice of withdrawal.

The tribunal ordered that Number One Quality Homes Pty Ltd pay Judith Murphy and Daniel Murphy $28,373.92 within 28 days of the order. Additionally, the tribunal set out specific timelines for any applications for the costs of the proceeding, including deadlines for filing and serving submissions and the decision on the costs.

Orders

Orders of the court

1. Number One Quality Homes Pty Ltd pay to Judith Murphy and Daniel Murphy $28,373.92 within 28 days of this order.

2. Any application for the costs of the proceeding, together with any submissions in support of the application, be filed in the Tribunal and served on the other party by email, by:

24 January 2025.

3. Any submissions in reply to an application for the costs of the proceeding filed in accordance with order 2 be filed in the Tribunal and served on the other party by email, by:

14 February 2025.

4. Any application for the costs of the proceeding filed in accordance with order 2 be decided by the Tribunal on the papers, after:

14 February 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if I am wrong, and Mr and Mrs Murphy engaged in all or any of the conduct alleged in paragraphs 8(a)(i) of the reply or other conduct and the conduct amounted to the representations alleged, neither the conduct nor the representations, in my opinion, displace the statutory right given to Mr and Mrs Murphy to withdraw from the contract under section 35 of schedule 1B to the QBCC Act.Conclusion The answers to the issue to be decided by the Tribunal are as follows:Issue one: Whether, as a matter of law, a person can be estopped from exercising their statutory right to withdraw under section 35(3) of Schedule 1B to the QBCC Act.Answer: No.Issue two: Whether Mr and Mrs Murphy were estopped by their conduct from withdrawing from the Building Works Contract on 3 October 2018 pursuant to section 35(3) of Schedule 1B to the QBCC Act.Answer: No.(a) Whether Mr and Mrs Murphy engaged in the conduct alleged in paragraph 8(a)(i) of the reply;Answer: 8(a)(i)A, C - F Yes.8(a)(i)B. No.(b) Whether Mr and Mrs Murphy:(i)refused to accept a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide from the Applicant upon entry into the Building Works Contract;Answer: No.(ii)Were able to view a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide;Answer: No.(iii)Requested a copy of the General Conditions of the Building Works Contract or the Consumer Building Guide from NOQH during the Works.Answer: No.(c) Whether that conduct, or other conduct by Mr and Mrs Murphy, amounted to a representation to NOQH that Mr and Mrs Murphy did not want or need the Consumer Building Guide nor a complete copy of the Building Works Contract or the representations alleged by the Applicant in paragraph 8(a)(i) of the Reply;Answer: No.(d) Whether NOQH relied on those alleged representation/s to its detriment, such that it is unconscionable for Mr and Mrs Murphy to resile from them.Answer: No. Mr and Mrs Murphy effectively withdrew from the contract. In the circumstances, the parties agree, the appropriate order of the Tribunal is that NOQH pay to Mr and Mrs Murphy $28,373.92, the difference between the amount paid by Mr and Mrs Murphy to NOQH, $651,440.32, and NOQH’s out-of-pocket expenses incurred before the giving of the notice of withdrawal, $623,066.40.Orders The order of the Tribunal is NOQH pay to Mr and Mrs Murphy $28,373.92 within 28 days of this order. I further order as follows:(a)any application for the costs of the proceeding, together with any submissions in support of the application, be filed in the Tribunal and served on the other party by email, by:

Ratio Decidendi

Legal Principle Established

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