Partington v Urquhart - [2015] QCATA 67

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
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 102, s 142

Ownit Homes Pty Ltd v Batchelor (1983) 2 Qd R 124
Urguhart v Partington [2013] QCAT 133
Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132

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.…

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 Partington v Urquhart

Details

AGLC: Partington v Urquhart [2015] QCATA 67
Case: [2015] QCATA 67
Decision Date: 19 May 2015

CaseChat Overview and Summary

In the matter of Partington v Urquhart, the court was asked to consider whether a builder was entitled to make a stage claim under the Building and Construction Industry Security of Payment Act 2002 (NSW) when an element of the enclosed stage had not been completed. The dispute arose between the appellant, Mr Partington, and the respondent, Mr Urquhart, who is the builder. The matter was heard and determined by the NSW Supreme Court.

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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