Palmen v Dale Boys Builder Pty Ltd - [2023] QCAT 272

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Palmen & Anor v Dale Boys Builder Pty Ltd [2023] QCAT 272

PARTIES:

DOUGLAS EDWIN PALMEN

(first applicant)

DEBRA PALMEN

(second applicant)

v

DALE BOYS BUILDER PTY LTD

(respondent)

APPLICATION NO/S:

BDL038-20

MATTER TYPE:

Building matters

DELIVERED ON:

18 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1. The respondent pay the applicants the sum of $9,550 damages plus costs of $495.20 within 14 days of the date hereof and interest at the rate of 10 per cent per annum thereafter on default of payment.

2. The respondent’s applications to dismiss proceedings and for a non-publication order are refused.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where in the course of construction the owners and builder agreed to stand the work down for a period of time whilst the owners were overseas – where the builder did not return to the site on the return of the owners – where the owners purported to terminate based on the provisions of the contract but failed to put the general conditions of contract into evidence – where the owners were in any case entitled to terminate the contract under the general law on the repudiation of the contract by the builder – where the owners were entitled to liquidated damages calculated by the contract schedule – where the self-represented owners were not entitled to recover legal costs incurred before commencing proceedings as necessary steps taken prior to commencement of proceedings

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(c), s 77(3)(h), Schedule 1B s 10

Queensland Building and Construction Commission Regulation 2018 (Qld), s 54

Cachia v Hanes [1994] HCA 14

Harrison and Anor v Meehan [2017] QCA 315
Mazelow Pty Ltd v Herberton Shire Council [2002] QCA 119
Miller v Lida Build Pty Ltd [2015] QCATA 137

Rintoul v State of Queensland & Ors [2015] QCA 79

APPEARANCES & REPRESENTATION:

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

Mr and Mrs Palmen (‘the owners’) engaged the respondent builder (‘the builder’) to do building work on their home. They signed a QBCC Level 2 Renovation, Extension and Repair contract on 24 February 2017.
The contract provided a date for practical completion of 3 June 2017.
The builder had not completed the work by that date. The owners were away from the property from 8 September 2017 through to 29 October 2017. It was agreed between the parties that further work under the contract would stop whilst the owners were away then resume on their return.
The owners returned but the builder did not. The owners gave written notice of default in respect of delay in completing the work (and other matters of complaint) on 9 January 2017, requiring rectification of outstanding matters and…

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.

Keep reading for free

Create a free CaseChat account to read Palmen v Dale Boys Builder Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QCAT 272
Decision Date

CaseChat Overview and Summary

The matter between Douglas and Debra Palmen and Dale Boys Builder Pty Ltd involves a building dispute regarding the completion of a renovation, extension, and repair contract for the Palmens' home. The contract was signed on 24 February 2017, with a practical completion date of 3 June 2017, which was not met by the builder. The parties agreed to stand the work down while the owners were overseas from 8 September to 29 October 2017. Upon their return, the builder did not return to the site, prompting the owners to terminate the contract on 1 February 2018. The Palmens sought liquidated damages, costs, and other expenses from the builder. The builder, in turn, filed applications to dismiss the proceedings and for a non-publication order, which were denied.

The primary legal issues before the court were whether the Palmens validly terminated the contract on 1 February 2018, and if so, whether they were entitled to liquidated damages and other claims. The contract in question was a QBCC Level 2 Renovation, Extension and Repair contract, with only the schedule to the contract put into evidence, and the general conditions were missing. The builder argued that the matter should be linked to earlier contracts between the parties, but the court found no basis for such linkage.

The court found that the builder's failure to return to the site and engage further in the project amounted to repudiation of the contract, thereby allowing the Palmens to terminate the contract based on the common law. The Palmens were entitled to liquidated damages of $9,550, calculated at $50 per day for 191 days. The claim for a partial reimbursement for the money paid for plastering was not made out, as the owners did not provide independent evidence to support the claim of overcharge. The court also found that interest should only be awarded from the date of judgment at the default rate of 10% per annum. The claim for directly attributable costs, such as legal costs incurred before commencing proceedings, was denied except for certain fixed costs associated with the litigation.

The court ordered the builder to pay the Palmens the sum of $9,550 for liquidated damages, plus costs of $495.20, a total of $10,045.20, plus interest from the date of judgment until paid. The builder's applications to strike out or dismiss the proceedings and seeking a non-publication order were refused.

Orders