| CITATION: | Perkins & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 283 |
| PARTIES: | Ian Perkins Kylie Perkins (Applicants) |
| v | |
| Queensland Building and Construction Commission (First Respondent) Platinum Construction Solutions Pty Ltd (Second Respondent) |
| APPLICATION NUMBER: | GAR043-16 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 and 10 March 2017 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Traves |
| DELIVERED ON: | 21 August 2017 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the QBCC to disallow the claim under the statutory insurance scheme be set aside. 2. It is declared that the contract was properly terminated in accordance with clause 27 of the policy. 3. The parties be at liberty within 14 days thereof to make submissions as to costs. |
APPEARANCES:
APPLICANTS: Mr Peter Somers, Counsel for Ian and Kylie Perkins
RESPONDENTS: Mr Earl Tan, Senior principal lawyer, Queensland Building and Construction Commission
Mr Jim Feehely, Jim Feehely Project Law, for Platinum Construction Solutions
REASONS FOR DECISION
Introduction
Ian and Kylie Perkins entered into a domestic building contract with Platinum Construction Solutions Pty Ltd (PCS) on 17 February 2015 for the renovation of their home at Camp Hill. The contracted works were not completed and on 27 November 2015 the Perkins lodged a complaint with the Queensland Building and Construction Commission (QBCC).
The Perkins purported to terminate the contract on 23 November 2015.
The QBCC treated the complaint as a claim on the Queensland Home Warranty Scheme and forwarded it to its Insurance Department for assessment. The claim was, however, rejected on 19 January 2016.
The Perkins have now brought an application in the Tribunal to review the decision by the QBCC to refuse their claim under the scheme. This is a reviewable decision pursuant to s 86(1)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
The reason…
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- Case
- [2017] QCAT 283
- Decision Date
CaseChat Overview and Summary
The central legal issues the court had to resolve were whether the contract was properly terminated, whether the builder had repudiated the contract, and whether the demand for progress payments was premature. Additionally, the court needed to determine whether the builder had wrongfully suspended the works and whether the provisional sums were due and owing at the time the works were suspended. These issues required a careful analysis of the contract's terms and the conduct of both parties in relation to those terms.
The court found that the contract was indeed properly terminated in accordance with the terms of the policy. It held that the builder had not repudiated the contract and that the demand for progress payments was not premature. The court further found that the builder did not wrongfully suspend the works and that the provisional sums were not due and owing at the time the works were suspended. Based on these findings, the decision of the Commission to disallow the claim under the statutory insurance scheme was set aside.
Consequently, the court declared that the contract was properly terminated in accordance with clause 27 of the policy. The parties were given the liberty to make submissions on costs within 14 days of the decision.
Orders
Orders of the court
1. The decision of the QBCC to disallow the claim under the statutory insurance scheme be set aside.
2. It is declared that the contract was properly terminated in accordance with clause 27 of the policy.
3. The parties be at liberty within 14 days thereof to make submissions as to costs.
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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