Queensland Building Services Authority v Samimi - [2021] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Samimi & another [2021] QDC 112

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(plaintiff)

v

KAMRAN SAMIMI

(first defendant)

and
MOJGAN SAMIMI

(second defendant)

FILE NO:

1264 of 2012

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

31 August and 2 September 2020 and 25 March 2021 – 1 April 2021 and 17 May 2021 (close of submissions)

JUDGE:

RS Jones DCJ

ORDER:

1.   The claim against the first defendant is dismissed.

2.   The claim against the second defendant is dismissed.

3.   I will hear further from the parties as to any consequential orders.

CATCHWORDS:

GENERAL CONTRACTUAL PRINCIPLES – BREACH OF CONTRACT – where defendant engaged in domestic building contract for residential construction – whether defendant failed to carry out domestic building works in accordance with contract – where contract terminated by owner – where plaintiff issued payout to owner under Queensland Home Warranty Scheme – where purported defective and incomplete works capable of rectification

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGED, BREACH AND DEFENCES TO ACTION FOR BREACH – TERMINATION – where works under domestic building contract suspended by defendant – where defendant sought further instructions from owner to continue works – whether owner failed to comply with implied obligation to cooperate – where continuation of works by defendant would lead to inefficient and out of sequence approach to construction absent further instructions from owner – where suspension of works lawful and warranted

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGED, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – where works under domestic building contract lawfully suspended by defendant – whether suspension of works enlivened default termination provisions of contract – where suspension did not constitute repudiation – where termination by plaintiff did constitute repudiation

LEGISLATION:

Corporations Act 2001 (Cth) s 601AH

Queensland Building and Construction Act 1991 (Qld) ss 71, 111C

CASES:

Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd & Ors (No 2) [2018] 1 Qd R 132; [2017] QCA 83

Lourinda v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 634, 643, 658
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Shevill v Builders Licensing Board (1982) 149 CLR 620

Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (1924) 20 Ll.L.Rep. 140

COUNSEL:
Mr M Williams for the plaintiff

Mr S Monks for the defendant

SOLICITORS:
Rostron Carlyle Rojas Lawyers for the plaintiff

Peter Ryan Lawyers for the defendant

This proceeding was concerned with an action commenced by the Queensland Building and Construction Commission (formerly the Queensland Building Services Authority) (the plaintiff) against Kamran Samimi (first defendant) and Mojgan Samimi (second defendant) to recover statutory insurance monies in the amount of $324,301.17 as a debt pursuant to ss 71(1), 111C(3) and (6) of the Queensland Building and Construction Commission Act (QBCC Act).
The actions against both defendants are dependent upon the…

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: [2021] QDC 112
Decision Date: 9 July 2021

CaseChat Overview and Summary

This case, heard by the Supreme Court of Queensland, involves a dispute between the Queensland Building Services Authority (the plaintiff) and two defendants, Mehran Samimi and Spectrum Building Services Pty Ltd (Spectrum). The plaintiff brought an action against the defendants for alleged breaches of contract in relation to a domestic building contract for residential construction. The primary issue before the court was whether Spectrum had failed to carry out the domestic building works in accordance with the contract, which had been terminated by the owner. The court had to determine if the plaintiff had established the necessary fault on the part of the defendants. Additionally, the court considered whether the owner had failed to comply with an implied obligation to cooperate and if the suspension of works by Spectrum was lawful and warranted.

The court found that Spectrum lawfully suspended the works and that the owner had failed to comply with an implied obligation to cooperate, which would have led to an inefficient and out-of-sequence approach to construction if the works had continued. The court further held that the suspension of works did not constitute repudiation of the contract, and that the termination by the plaintiff did constitute repudiation. Therefore, the court concluded that the plaintiff had not established the necessary fault on the part of the defendants.

In light of the above, the court dismissed the claims against both defendants. The court will hear further from the parties regarding any consequential orders. The final orders of the court are as follows: 1) The claim against the first defendant is dismissed; 2) The claim against the second defendant is dismissed; 3) The court will hear further from the parties as to any consequential orders.

Orders

Orders of the court

1. The claim against the first defendant is dismissed.

2. The claim against the second defendant is dismissed.

3. I will hear further from the parties as to any consequential orders.

Background

Background to the litigation

For the reasons set out below the plaintiff has failed to establish the necessary fault on the part of the defendants and, accordingly, the orders of the court are:1. The claim against the first defendant is dismissed;2. The claim against the second defendant is dismissed;3. I will hear further from the parties as to any consequential orders. Background This proceeding has, at least as far as I understand it, been ongoing since 2012. Having regard to that historical background, it is perhaps unsurprising that by the time it came before me, the plaintiff was relying on its sixth further amended statement of claim and the defendant their sixth further amended defence. If things weren’t bad enough, this proceeding initially commenced before Judge Porter QC. Unfortunately for reasons it is unnecessary to go into, it was agreed between his Honour and the parties that it would not be appropriate for him to continue to preside. That occurred on the second day of the trial, 1 September, 2020. The proceedings before me commenced on 25 March 2021 where Dr Djamshidi (the doctor) was re-sworn and cross-examination continued by Mr Monks, counsel for the defendants. It is uncontroversial that the first defendant and the doctor were previously known to each other and that the latter had engaged the first defendant to undertake renovation works on a residential property at 19 Drayton Terrace, Mermaid Waters (the Mermaid Waters property) in or around early 2006. On or about 1 May 2006, Mehran Pty Ltd (Mehran) entered into a contract (the contract) engaging Spectrum to undertake domestic building works for the construction of two residential dwellings. These dwellings were situated at 29 and 31 Macquarie Street, St Lucia, better described as Lots 38 and 39 on RP23316. The agreed contract price for the construction works was in the amount $1,385,260.00, of which Spectrum purports to have received payment in the amount of $700,000 from Mehran to date. On or about 20 November 2006, Mehran and Spectrum signed the Master Builders Residential Building Contract which articulated the terms of the contract.[4] [4]See Exhibit 2. Between or about May 2006 and March 2007, Spectrum carried out building works in respect of the dwellings. It is uncontroversial that such works included the engagement of subcontractors to perform excavation, soil removal and footings.[5] [5]See Exhibit 3. In July 2007, the plaintiff asserted that building works undertaken by Spectrum in respect of the dwellings were defective and incomplete and had been suspended altogether. A notice of intention to terminate the contract was issued to Spectrum on or about 11 July 2007.[6] [6]Exhibit 111. On or about 24 July 2007, Mehran lodged a claim with the plaintiff under the Queensland Home Warranty Scheme for defective and incomplete works carried out by Spectrum in respect of the dwellings. And, on or about 10 August 2007, Mehran provided Spectrum with a notice of termination of the contract for failure to remedy alleged breaches identified under the notice.[7] It is uncontroversial that, prior to the termination of the contract, building works were in fact suspended by Spectrum. [7]See Exhibit 112.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Queensland Building Services Authority v Samimi & another [2021] QDC 112
PARTIES:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (plaintiff) v KAMRAN SAMIMI (first defendant) and MOJGAN SAMIMI (second defendant)
FILE NO:	1264 of 2012
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	31 August and 2 September 2020 and 25 March 2021 – 1 April 2021 and 17 May 2021 (close of submissions)
JUDGE:	RS Jones DCJ
ORDER:	1. The claim against the first defendant is dismissed. 2. The claim against the second defendant is dismissed. 3. I will hear further from the parties as to any consequential orders.
CATCHWORDS:	GENERAL CONTRACTUAL PRINCIPLES – BREACH OF CONTRACT – where defendant engaged in domestic building contract for residential construction – whether defendant failed to carry out domestic building works in accordance with contract – where contract terminated by owner – where plaintiff issued payout to owner under Queensland Home Warranty Scheme – where purported defective and incomplete works capable of rectification CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGED, BREACH AND DEFENCES TO ACTION FOR BREACH – TERMINATION – where works under domestic building contract suspended by defendant – where defendant sought further instructions from owner to continue works – whether owner failed to comply with implied obligation to cooperate – where continuation of works by defendant would lead to inefficient and out of sequence approach to construction absent further instructions from owner – where suspension of works lawful and warranted CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGED, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – where works under domestic building contract lawfully suspended by defendant – whether suspension of works enlivened default termination provisions of contract – where suspension did not constitute repudiation – where termination by plaintiff did constitute repudiation
LEGISLATION:	Corporations Act 2001 (Cth) s 601AH Queensland Building and Construction Act 1991 (Qld) ss 71, 111C
CASES:	Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd & Ors (No 2) [2018] 1 Qd R 132; [2017] QCA 83 Lourinda v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 634, 643, 658 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 Shevill v Builders Licensing Board (1982) 149 CLR 620 Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (1924) 20 Ll.L.Rep. 140
COUNSEL:	Mr M Williams for the plaintiff Mr S Monks for the defendant
SOLICITORS:	Rostron Carlyle Rojas Lawyers for the plaintiff Peter Ryan Lawyers for the defendant