Perera v Bold Properties (Qld) Pty Ltd

The matter before the Queensland Supreme Court involved a dispute between the applicants, Perera, and Bold Properties (Qld) Pty Ltd. The applicants sought a declaration that a particular clause in their building contract was void and unenforceable, as well as costs. The contract, dated 11 August 2022, included a special condition 7 which provided for price escalation, but lacked any criteria or formula for determining the extent of the escalation. The applicants argued that this lack of criteria rendered the clause uncertain and therefore void. Additionally, the applicants claimed that the warning required by the Queensland Building and Construction Commission Act 1991 was inadequate and that the entire contract should be considered void.

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.