Pescott v Noonbrace P/L T/A Jason Burr Constructions (No 2)
[2010] QDC 106
•26 March 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Pescott & Anor v Noonbrace P/L T/A Jason Burr Constructions (No 2) [2010] QDC 106
PARTIES:
DEAN PESCOTT AND NANCY PESCOTT
(Appellants)v
NOONBRACE PTY LTD T/A JASON BURR CONSTRUCTIONS
(Respondent)FILE NO:
BD 2695 of 2009
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane District Court
DELIVERED ON:
26 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
Written submissions 19 March 2010
JUDGE:
Robin QC DCJ
ORDER:
Leave to appeal is granted. 1.
The appeal is allowed to the extent of the orders below.2.
The respondent pay to the applicants:3.
the cost of completing the construction work which the respondent contracted to complete, less the $25,273 which would have been payable for such completion under the relevant contract;(a)
$12,478 which the respondent received pursuant to the Commercial and Consumer Tribunal’s order of 26 August 2009;(b)
$82,000 which the Tribunal found it would cost to rectify defects;(c)
$220 in delay damages, again pursuant to the finding of the Tribunal;(d)
LESS the sum of $94,498 payable by the applicants to the respondent pursuant to the Tribunal’s order.(e)
The matter be remitted to the Tribunal for further hearing to determine on the basis of the evidence already taken whether the cost of completing construction is $91,217 as estimated by Mr Loi or some other amount (and if so) what amount and consequently the total sum to be paid by the respondent in consequence of this order.4.
For purposes of such determination, the respondent provide in advance particulars of any work included by Mr Loi contended to be unnecessary and particulars of opportunities available to the appellants to have work done at lower prices.5.
The respondent pay the appellants’ costs of the proceeding in this court to be assessed if not agreed.6.
The question of costs in the Tribunal also be remitted to the Tribunal for consideration having regard to its determination of the sum payable by the respondent pursuant to paragraph 4 above and to the outcome of this appeal.7.
8. Liberty to apply.
CATCHWORDS:
Orders made to facilitate determination by Tribunal of cost of completing construction of a dwelling house consequent upon allowing of an appeal
COUNSEL:
S Given for the appellants
T Pincus for the respondent
SOLICITORS:
Fibes Stibbe for the appellants
Everingham Lawyers for the respondent
Helpful written submissions have been received from counsel regarding the orders appropriate to be made to give effect to reasons published to the parties for the court’s conclusions in the appeal. Some issues of considerable importance to the parties remain. Chief among them is whether the matter ought to be remitted to the Tribunal for determination of the cost of completing the residence which the respondent was to construct for the appellants over and above that part of the contract price included in the final progress payment stage. The appellants, understandably, are very much opposed to being forced to another hearing. They wish to rely on the estimate of Mr Loi that completion would cost $91,217. Contrary to Mr Pincus’ submissions for the respondent, I read the Tribunal’s “rejection” of Mr Loi as limited to what he had to say about the cost of rectifying defects in work which the respondent did do. This court, in the appeal proceeding, was not taken to any evidence which suggested the appellants might be able to have the work completed for any sum different than the $91,217. For what it is worth, I am satisfied that the $25,273 for which credit against the cost of completion has to be given arose in consequence of a dissection of the work and its stages (linked with certain percentages of the contract price payable in respect of them) was highly favourable to the builder, and fell far short of what an apportionment based on value of that last part of the work.
This court’s published reasons invited Mr Pincus to point to aspects of the evidence before the Tribunal which might cast doubt on Mr Loi’s estimate. He has done that sufficiently, and by some reference to detail which may sound in modest dollar amounts, over and above making the general point that the discrepancy between $25,273 and Mr Loi’s figure is a cause for concern on its own, coming on top of the Tribunal’s determination that the respondent must pay $82,000 for costs of rectifying its defective work. I have not decided whether any of Mr Pincus’ points are sound.
It is with some regret that I conclude that determination of whether $91,217 or some other is the correct amount ought to be remitted to the Tribunal, which had no occasion to consider the issue, given its determination (which did not survive the appeal) that the parties had abandoned their contract. I think the system under which we operate is one in which it is for the original Tribunal to determine such an issue for the first time, rather than for this court on appeal to do it – a second substantial hearing would be necessary in the circumstances. One might express the wish that a compromise could be settled on by the parties.
I prefer Mr Pincus’ proposed orders to Mr Given’s, not being persuaded by the latter that the court in this appeal has jurisdiction to make a declaration. On the more basic point, whether the $91,217 ought to be found to represent the cost of completion for construction in the appeal, I am against the appellants.
As to costs, I am against them, also, in respect to an order for costs in the Tribunal being made in their favour. I think what happens regarding those costs ought to await the Tribunal’s determination in respect of Mr Loi’s estimate in light of what this court has done in the appeal.
The appellants ought to have their full costs of the appeal, in my view, notwithstanding that Mr Pincus has urged that there be no costs. The appellants have had substantial victory, especially on the points that took up most of the time. I do not think this is an occasion on which it is suitable to seek to make an order by reference to the parties’ success or failure on particular issues – accepting that the appellants failed on some. The court will make orders in the following terms (but allow the parties some time before doing so to seek a resolution that avoids further proceedings):
Leave to appeal is granted.
The appeal is allowed to the extent of the orders below.
The respondent pay to the applicants:
(a) the cost of completing the construction work which the respondent contracted to complete, less the $25,273 which would have been payable for such completion under the relevant contract;
(b) $12,478 which the respondent received pursuant to the Commercial and Consumer Tribunal’s order of 26 August 2009;
(c) $82,000 which the Tribunal found it would cost to rectify defects;
(d) $220 in delay damages, again pursuant to the finding of the Tribunal;
(e) LESS the sum of $94,498 payable by the applicants to the respondent pursuant to the Tribunal’s order.
The matter be remitted to the Tribunal for further hearing to determine on the basis of the evidence already taken whether the cost of completing construction is $91,217 as estimated by Mr Loi or some other amount (and if so) what amount and consequently the total sum to be paid by the respondent in consequence of this order.
For purposes of such determination, the respondent provide in advance particulars of any work included by Mr Loi contended to be unnecessary and particulars of opportunities available to the appellants to have work done at lower prices.
The respondent pay the appellants’ costs of the proceeding in this court to be assessed if not agreed.
The question of costs in the Tribunal also be remitted to the Tribunal for consideration having regard to its determination of the sum payable by the respondent pursuant to paragraph 4 above and to the outcome of this appeal.
Liberty to apply.
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