Perkins v Queensland Building and Construction Commission - [2017] QCAT 283

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.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – REPUIDATION - whether contract “properly terminated” within the meaning of the policy – whether builder had repudiated the contract – whether demand for progress payments premature – whether builder wrongfully suspended works – whether provisional sums not due and owing at the time works suspended

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 42
Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72, s 86, s 87

Cardona v Brown [2012] VSCA 174
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327; [1953] HCA 31
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23
Maples Winterview Pty Ltd v Liu [2015] ACTSC 58
Nina’s Bar Bistro Pty Ltd v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR 613
Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353

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…

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.

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Details

Case: [2017] QCAT 283
Decision Date: 21 August 2017

CaseChat Overview and Summary

In the case of Perkins v Queensland Building and Construction Commission, the court examined the validity of the termination of a construction contract and the consequent claim for insurance under the statutory scheme. The builder, Perkins, sought compensation under the insurance scheme after claiming that the contract was improperly terminated by the Commission, which had engaged Perkins to carry out construction works. The Commission argued that the builder had repudiated the contract and that the claim should be disallowed.

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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