| CITATION: | Partington & Anor v Urquhart [2015] QCATA 67 |
| PARTIES: | Phillip Partington Evelyn Partington (Applicants/Appellants) |
| v | |
| John Urquhart t/as Hart Renovations (Respondent) |
| APPLICATION NUMBER: | APL131-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 15 September 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Favell |
| DELIVERED ON: | 19 May 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal allowed. 2. The claim and cross claim is returned to the Tribunal for rehearing according to law. |
| CATCHWORDS: | APPEAL – whether building reached enclosed stage – whether builder entitled to make stage claim – where element of enclosed stage not completed – whether tribunal entitled to rely on opinion evidence to decide if the enclosed stage reached – whether mistake of law Domestic Building Contracts Act 2000 (Qld), s 43, s 44, s 45 Ownit Homes Pty Ltd v Batchelor (1983) 2 Qd R 124 |
APPEARANCES:
| APPLICANT: | Phillip Partington Evelyn Partington |
| RESPONDENT: | John Urquhart |
REPRESENTATIVES:
| APPLICANT: | Phillip Partington and Evelyn Partington represented by Ms S McNeil of Counsel instructed by Blue Fox Legal |
| RESPONDENT: | John Urquart represented by Mr S B Whitten of Counsel instructed by Saal and Associates Lawyers |
REASONS FOR DECISION
Senior Member O’Callaghan
In this matter, I have had the benefit of reading Member Favell’s reasons in draft. I agree with his reasons, and conclusions, and the order he proposes.
Member Favell
In early 2008 Mr and Mrs Partington decided to carry out a major renovation to their house in Sherwood. This included lifting the house, building in underneath and adding an extension.
Plans for the project were prepared by an architect, Nicole Western, and engineering design drawings were prepared by Morgan Consulting Engineers Pty Ltd.[1]
[1]Urguhart v Partington [2013] QCAT 133 at [1].
In early 2008 the Partingtons spoke to Mr Urquhart about the renovation and asked for a quote. Mr Urquhart engaged quantity surveyors, Total Estimating Services, to prepare a costing for the work. Their cost estimate was $561,617.38 and with other additions including the builder’s margin, the total price quoted to carry out the work in accordance with the plans was over $740,000.00. The discussions continued and there were some variations to the work to be undertaken and by 21 July 2008 Mr Urquhart gave the Partingtons a quote of $483,742.00 which quote was accepted.
On 4 August 2008 a standard HIA contract was signed by the parties. It included a payment schedule which provided for payment at various stages namely deposit, raise house, base, frame, enclosed, fixing and PC.
Work commenced on the house soon after the contract was signed and on the 20 April 2009 Mr Urquhart sent a tax invoice to the Partingtons for the enclosed stage together with the cost of variations. The enclosed stage claim was for $145,122.00 with the total invoice being $151,669.41.
The Partingtons did not pay the progress claim.…
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- Partington v Urquhart [2015] QCATA 67
- Case
- [2015] QCATA 67
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the building had reached the enclosed stage as defined by the Act, and whether the tribunal was entitled to rely on opinion evidence in determining whether the enclosed stage was reached. Additionally, the court had to consider whether the tribunal had made a mistake of law in its decision.
In delivering the judgment, the court held that the building had not reached the enclosed stage as defined by the Act, as there was an incomplete element of the enclosed stage. The court further held that the tribunal was entitled to rely on opinion evidence to decide whether the enclosed stage was reached, as long as the opinion was based on objective facts and was reasonable. The court also held that the tribunal had made a mistake of law in its decision, as it had not considered the objective facts in determining whether the enclosed stage was reached.
Consequently, the appeal was allowed, and the claim and cross-claim were returned to the tribunal for rehearing according to law. The court's decision highlights the importance of objective facts and the role of opinion evidence in determining whether a building has reached the enclosed stage under the Act.
Orders
Orders of the court
1. Appeal allowed.
2. The claim and cross claim is returned to the Tribunal for rehearing according to law.
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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