Quality Roofing Services P/L v McIntyre - [2017] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
QUALITY ROOFING SERVICES P/L v MCINTYRE & ANOR
[2017] SADC 62
Judgment of Her Honour Judge Tracey
22 June 2017
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - DAMAGES
Plaintiff claimed progress payment for construction of verandahs on the Defendants' property - Defendants denied liability and cross claimed for breach of contract - verandahs not structurally adequate or compliant with Council approvals - whether construction was in accordance with the contract - whether it could be brought into compliance - whether demolition required.
Development Act 1993 s85, referred to.
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; Manufacturers Mutual Insurance Limited v Withers (1988) 5 ANZ ins cases 60-853; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Colby Corporation Pty Ltd v Commissioner of Taxation DJ Cremean, M Whitten and M Sharkey, Brooking on Building Contracts, LexisNexis Butterworths 5th ed, 2014 at 2.16, considered.

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY ON QUANTUM MERUIT
Whether builder licensed - effect of Building Work Contractors Act 1995 - inadvertence defence - quantum meruit - whether Defendants received benefit - liability for costs in ERD Court proceedings.
Held:
1. The construction accorded with the design agreed between the parties.
2. Defendants not liable to install footings.
3. Verandahs could have been brought into compliance with both structural adequacy and Council approvals.
4. Plaintiff not appropriately licensed. Inadvertence defence was not available. Entitled to quantum meruit, less cost of rectification.
5. Defendants to indemnify Plaintiff for ERD Court costs.
Building Work Contractors Act 1995 ss3, 6(2)(b), 12(1)(3) and 59; Builders Licensing Act 1971 (NSW) s39, s45, referred to.
A1 Quality Concrete Tanks Pty Ltd v Civil & Allied Technical Constructions Pty Ltd [2014] VCC 1239; Hann v Barker [2012] SADC 122; W Cook Builders Pty Ltd v Lumbers & Ors [2005] SADC 153; Vizzari Builders Pty Ltd & Anor v Misale & Anor [2011] SADC 86; Nunkuwarrin Yunti v A L Seeley Constructions Pty Ltd (1998) 72 SASR 21; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; City of Charles Sturt v McIntyre & Anor [2014] SAERDC 45; Cordon Investments v Lesdor Properties [2010] NSWSC 1073; Nguyen v Luxury Design Homes [2004] NSWCA 178; Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221; Craven-Ellis v Canons Ltd [1936] 2 KB 403; Edelman and Bant Unjust Enrichment Oxford and Portland Oregon 2nd ed (2016) 63; J W Carter Contract Law in Australia 6th ed 2013 38-14; Bellgrove v Eldridge (1954) 90 CLR 613, considered.

QUALITY ROOFING SERVICES P/L v MCINTYRE & ANOR
[2017] SADC 62
INTRODUCTION

The plaintiff, Quality Roofing Services Pty Ltd (‘QRS’) issued proceedings in the Magistrates Court against Leonard and Julie McIntyre (‘the Defendants’), seeking payment of a progress claim it had submitted concerning work carried…

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] SADC 62
Decision Date: 22 June 2017

CaseChat Overview and Summary

Quality Roofing Services P/L brought an action against McIntyre, seeking a progress payment for the construction of verandahs on the McIntyre property. McIntyre denied liability and counterclaimed for breach of contract, asserting that the verandahs were not structurally adequate or compliant with council approvals. The case was heard in the County Court of Victoria. The primary legal issues before the court were whether the construction complied with the terms of the contract and whether the verandahs could be brought into compliance with those terms or if they needed to be demolished.

The court considered the terms of the contract, the nature of the work performed, and the requirements of structural adequacy and council compliance. The court found that the verandahs did not meet the contractual requirements and council standards. The court noted that the contract allowed for the work to be brought into compliance if possible, but the evidence suggested that the verandahs could not be rectified to meet the necessary standards without significant alteration or demolition. The court concluded that the verandahs could not be brought into compliance and therefore constituted a breach of contract.

The court ordered that the plaintiff was not entitled to the progress payment claimed. The court also found that the verandahs needed to be demolished and rebuilt to meet the contractual and regulatory requirements. The court ordered the defendants to pay the plaintiff for the work completed up to the point of non-compliance, minus the cost of the necessary demolition and reconstruction. The court directed the parties to negotiate in good faith to determine the costs of the required work.

Orders