Radcliff v Walker - [2011] QCAT 435

CITATION:

Radcliff and Anor v Walker [2011] QCAT 435

PARTIES:	G L & M G Radcliff t/a MGR Homes
v
Glen Walker Michelle Walker

APPLICATION NUMBER:

BD350-09

MATTER TYPE:

Building matters

HEARING DATE:

13-15, 18 October 2010, 14-16 December 2010, 19 January 2011

HEARD AT:

Brisbane

DECISION OF:

Mr Paul Favell, Member

DELIVERED ON:

13 September 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal orders that the $56,740.55 plus any accretions held by the Master Builders Association trust account be paid to the respondents by 4:00pm 20 September 2011 and the Applicant pay to the respondents $13,685.65 by 4:00pm 30 September 2011.

CATCHWORDS:

Domestic building contract – defective work –incomplete work- when practical completion is reached – authorisation of variations – costs

Bellgrove v Eldridge (1954) 90 CLR 613
Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	G L & M G Radcliff t/a MGR Homes represented by Andrew Evans instructed by Radcliff Lawyers
RESPONDENT:	Glen Walker and Michelle Walker self-represented

REASONS FOR DECISION

Mr and Mrs Walker owned land at 38 Glenrowan Drive, Worongary. On Christmas Eve 2008, they signed a contract with the applicant. It was agreed that the applicant would build a two-storey house in accord with various drawings and specifications. The contract price was $394,476.00. The contract documents included plans prepared by Total Vision and specifications prepared by N Radcliff. There was also foundations data prepared by Structerre.
On or about 9 January 2009 the works commenced.
The builder claims that between 8 January 2009 and 26 May 2009 the Walkers paid the builder the sum of $339,412.70.
The builder claims that in breach of the contract the Walkers have refused or neglected to pay the final progress claim given to the respondents in the sum of $56,740.55.
The Walkers deny that they are in breach of the contract because the works were not brought to practical completion and the final claim payment was not due. They also deny that practical completion was reached on 16 July 2009 and contend that they have paid the builder $380,848.35.
The Walkers claim compensation for defects, omissions and unauthorised variations which are outlined in exhibit 5. They also seek liquidated damages of $9,600.00 and damages as outlined in Attachment C of their counterclaim. They also contend that the applicant should be denied payment for the final progress claim.
The claims made by the Walkers are numerous and various and have been set out in much detail in a Scott schedule and in a report by Mr Hill (an expert) and attachments to that report (exhibits 2 and 4).
They claim that the builder breached the contract and warranties implied by the Domestic Building Contracts Act2000 in that the builder:
a)failed to carry out works in an appropriate and skilful way;
b)failed to carry out works with reasonable care and skill;
c)failed to carry out works in accordance with all relevant laws and legal requirements;
d)failed to carry out works…

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.

Continue reading Radcliff v Walker

Details

AGLC: Radcliff v Walker [2011] QCAT 435
Case: [2011] QCAT 435
Decision Date: 13 September 2011

CaseChat Overview and Summary

Radcliff v Walker involved a dispute between the plaintiff, Radcliff, and the defendant, Walker, regarding a domestic building contract. The plaintiff, Radcliff, claimed that Walker had failed to complete the building work to the required standard and had not authorised necessary variations, leading to additional costs. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issues before the Tribunal were whether the building work was completed to the required standard, whether practical completion had been reached, and whether the defendant had authorised the variations. The Tribunal had to determine if the defendant's failure to complete the work to the required standard and the additional costs incurred due to unauthorised variations constituted a breach of the building contract.

The Tribunal found that the building work was not completed to the required standard and that practical completion had not been reached. The Tribunal also found that the defendant had not authorised the variations. Consequently, the Tribunal held that the defendant was liable for the additional costs incurred due to the defective work and the unauthorised variations. The Tribunal ordered the defendant to pay the plaintiff $56,740.55 plus any accretions held by the Master Builders Association trust account by 4:00pm 20 September 2011 and an additional $13,685.65 by 4:00pm 30 September 2011.

Orders

Orders of the court

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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