DISTRICT COURT OF QUEENSLAND
CITATION:
Perera v Bold Properties (QLD) Pty Ltd [2023] QDC 99
PARTIES:
CHARITH JANAKA PERERA
(First Applicant)
HEWAGE NIRASHA WATHSALA PERERA
(Second Applicant)v BOLD PROPERTIES (QLD) PTY LTD ACN 127 545 804
(Respondent)
FILE NO/S:
BD 1198/23
DIVISION:
Civil
DELIVERED ON:
12 June 2023
DELIVERED AT:
Brisbane
HEARING DATE:
11, 26 May 2023
JUDGE:
Barlow KC DCJ
ORDERS:
1. The Court declares that special condition 7 of the contract made on 11 August 2022 between the applicants and the respondent is void.
2. Unless either party, by 4.00pm on 26 June 2023, serves and emails to my associate a submission seeking a different order as to costs, the respondent pay the applicants’ costs of the proceeding.
3. If either party makes such a submission, the other party serve and email to my associate any submission in response by 4.00pm on 3 July 2023.
4. Any submission on costs must be no more than 5 pages.
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – a building contract contained a price escalation clause –the price escalation clause provided no criteria for increases in price – whether the price escalation clause was void for uncertainty
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – a building contract included provisions which could change the price –the Queensland Building and Construction Commission Act 1991 required a warning about those provisions – whether the warning was adequate – effect of inadequate warning on specific provision and on entire contract
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNFAIR CONTRACT TERMS – a building contract contained a clause allowing the respondent unilaterally to increase price – where the price escalation clause provided no formula for increases – whether the term was unfair
LEGISLATION
Australian Consumer Law (Cth), s 3, s 18, s 23, s 24, s 25, s 27, s 60, s 61
Queensland Building and Construction Commission Act 1991 (Qld), s 108D, sch 1B, s 14Uniform Civil Procedure Rules 1999 (Qld), r 476
CASES
AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696, considered
Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652, cited
Australian Breeders Co Operative Society Ltd v Jones (1997) 150 ALR 488, cited
Australia Competition and Consumer Commission v Ashley & Martin Pty Ltd [2019] FCA 1436, cited
Australian Competition and Consumer Commission v Chrisco Hampers Australia Ltd (2015) 239 FCR 33, followed
Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377, applied
Australian Competition and Consumer Commission v JJ Richards & Sons Pty Ltd [2017] FCA 1224, cited
Equuscorp Pty Ltd v Glengallan investments Pty Ltd (2004) 218 CLR 471
Jetstar Airways Pty Ltd v Free (2008) 30 VAR 295; [2008] VSC 539, cited
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- AGLC
- Perera v Bold Properties (Qld) Pty Ltd [2023] QDC 99
- Case
- [2023] QDC 99
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the price escalation clause was indeed void for uncertainty, whether the warning about the price escalation clause was adequate under the Act, and whether the clause was unfair under the Australian Consumer Law. The court examined the clause in the context of the contract as a whole and considered the parties' intentions and the principles of contract law. The court also considered the adequacy of the warning required by statute and its effect on the specific provision and on the entire contract. Furthermore, the court assessed whether the clause was unfair to the applicants as consumers, considering the balance of the contract and the nature of the clause.
The court found that the price escalation clause was void for uncertainty because it lacked any criteria or formula for determining the extent of the escalation. The warning provided by the respondent was deemed inadequate as it did not clearly and conspicuously inform the applicants of the potential impact of the clause. Consequently, the court concluded that the clause was unfair under the Australian Consumer Law. The court declared that special condition 7 of the contract was void and ordered the respondent to pay the applicants’ costs, unless either party sought a different order as to costs. Submissions on costs were to be no more than five pages and had to be served and emailed by specific deadlines.
The court's orders included a declaration that the price escalation clause was void, a direction for the respondent to pay the applicants' costs unless a different order was sought, and specific instructions on the format and deadlines for any submissions on costs.
Orders
Orders of the court
1. The Court declares that special condition 7 of the contract made on 11 August 2022 between the applicants and the respondent is void.
2. Unless either party, by 4.00pm on 26 June 2023, serves and emails to my associate a submission seeking a different order as to costs, the respondent pay the applicants’ costs of the proceeding.
3. If either party makes such a submission, the other party serve and email to my associate any submission in response by 4.00pm on 3 July 2023.
4. Any submission on costs must be no more than 5 pages.
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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