Richards v Queensland Building and Construction Commission - [2019] QCAT 189

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Richards & Anor v Queensland Building and Construction Commission & Anor [2019] QCAT 189

PARTIES:

TREVOR JAMES RICHARDS
(first applicant)

ELLEN HANNAH RICHARDS
(second applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

BAX INVESTMENTS PTY LTD

(second respondent)

APPLICATION NO/S:

GAR339-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 July 2019

HEARING DATE:

7 May 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.   The decision of the Queensland Building and Construction Commission made on 30 April 2018 disallowing the applicants’ claim under the statutory home warranty insurance scheme be substituted with the following decision:

(a)   The claim by Trevor and Ellen Richards under the statutory home warranty insurance scheme for non-completion of building work at 224 Back Creek Road, Palen Creek be accepted on the basis that they properly terminated the contract with Bax Investments Pty Ltd dated 18 April 2016 on 16 May 2017.

2.   The applicants file and serve any submissions as to costs by 4pm on 1 August 2019.

3.   The respondents file and serve any submissions as to costs in reply by 4pm on 12 August 2019

4.   The costs of the proceeding will be determined on the papers without an oral hearing.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – where the applicants terminated a residential building contract on the respondent’s failure to proceed with due diligence – where the applicants claimed under the statutory home warranty scheme for incomplete building work – where the first respondent refused the claim on the basis the applicants had not been entitled to terminate the contract – whether the termination by the applicants was effective under the contract – whether the applicants were entitled to terminate under the general law

Queensland Building and Construction Commission Act 1991 (Qld), schedule 1B s 40, s 44
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21(2)(b)

Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312
Cousins T/as Cousins Housing Industries v Dumesny [2005] QCCTB 23
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49
Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Sunbird Plaza Pty Ltd v Maloney & Ors (1988) 166 CLR 245
Zahedpur v Idameneo (No 123) Pty Ltd [2016] QCA 134

APPEARANCES & REPRESENTATION:

Applicants:

J R Moxon, instructed by Broadley Rees Hogan

First Respondent:

Second respondent:

N Thirumoorthi, in-house lawyer

Self-represented by L Bax

REASONS FOR DECISION

Background

Mr and Mrs Richards (‘the owners’) own a property in the rural area of Palen Creek. They signed a building contract with the second respondent (‘Bax’) on 18 April 2016 for an extension to their home.
The contract price was $144,327.50. The construction period was…

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.

Keep reading for free

Create a free CaseChat account to read Richards v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QCAT 189
Decision Date: 19 July 2019

CaseChat Overview and Summary

In Richards v Queensland Building and Construction Commission, the applicants, Trevor and Ellen Richards, sought a review of a decision by the Queensland Building and Construction Commission (QBCC) that had refused their claim under the statutory home warranty insurance scheme. The Richards claimed that the respondent, Bax Investments Pty Ltd, had failed to complete the building works at their property in Palen Creek. The dispute centred around whether the Richards were entitled to terminate the contract with Bax Investments and whether their termination was valid under both the contract and the general law.

The legal issues before the court included whether the Richards had the right to terminate the residential building contract due to Bax Investments' failure to proceed with due diligence and whether the termination was effective under the contract and the general law. The Richards argued that they had properly terminated the contract on 16 May 2017, while Bax Investments contended that the Richards were not entitled to terminate and that their termination was ineffective. The Richards also claimed that they were entitled to compensation under the statutory home warranty insurance scheme for the incomplete building work.

The court found that the Richards had validly terminated the contract with Bax Investments due to their failure to proceed with due diligence. Despite Bax Investments not complying with the required timelines specified in the contract, the court accepted the Richards' evidence as credible and clear about the terms of the contract. The court also noted that the Richards had kept a detailed diary of the builder's workers' attendances on site, which supported their claim. The court was mindful that the documents provided by Bax Investments had not been tested by cross-examination and thus carried less weight. Consequently, the court substituted the QBCC's decision, accepting the Richards' claim under the statutory home warranty insurance scheme on the basis that they had properly terminated the contract.

The court ordered that the QBCC's decision disallowing the Richards' claim be substituted with a decision accepting their claim for non-completion of building work. The applicants were directed to file and serve any submissions as to costs by 4pm on 1 August 2019, with the respondents to reply by 4pm on 12 August 2019. The costs of the proceeding were to be determined on the papers without an oral hearing.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission made on 30 April 2018 disallowing the applicants’ claim under the statutory home warranty insurance scheme be substituted with the following decision:

(a) The claim by Trevor and Ellen Richards under the statutory home warranty insurance scheme for non-completion of building work at 224 Back Creek Road, Palen Creek be accepted on the basis that they properly terminated the contract with Bax Investments Pty Ltd dated 18 April 2016 on 16 May 2017.

2. The applicants file and serve any submissions as to costs by 4pm on 1 August 2019.

3. The respondents file and serve any submissions as to costs in reply by 4pm on 12 August 2019

4. The costs of the proceeding will be determined on the papers without an oral hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The owners have applied to the Tribunal to review the decision to refuse cover under the statutory insurance scheme.The evidence at hearing Bax failed to comply with orders of the Tribunal to file statements of evidence intended to be relied upon by them at hearing, before hearing. They were put on notice by the owners’ solicitors prior to the hearing that there would be objection taken to any party attempting to lead evidence not reduced to statement form and filed and served as directed by the Tribunal.[1] [1]Exhibit 7. Bax had supplied documents relevant to the matters in issue to QBCC however which had been relied on in reaching the first decision. QBCC included them in the statement of reasons for the decision as documents that might be relevant to the Tribunal’s review of the decision as provided for in s 21(2)(b) of the QCAT Act. As such the Tribunal is entitled to consider them and give them such weight as appropriate,[2] which in this case means being mindful that their veracity was not tested by cross-examination at hearing.[3] [2]Section 28(3)(b), (c), (e).[3]The builder’s representative Ms Leanne Bax was not permitted to give oral evidence at the hearing given the failure to file written statements of evidence. The owners filed statements of evidence. Mrs Richards was cross-examined on her material. She impressed me as a forthright person giving open and honest evidence, without prevarication, though sometimes specific dates of discussions she recalled having with the builder eluded her.[4] She kept a diary of attendances of the builder’s workers on site but admitted she was not used to keeping a diary and there were some lapses. Overall however she seemed to have good recall of the interaction of her husband and herself with the builder, she was clear about what was agreed and what was not, such as no variations to the contract and particularly that it was never agreed the bathroom work would be excluded from the scope of work under the contract.[5] I accept her evidence where it conflicts with statements contained in the documents supplied by Bax to QBCC and filed with the statement of reasons. [4]Transcript (‘T’) 1-53, Line (‘L’) 35-36.[5]T1-80, L15.Termination following notice to remedy The owners’ solicitors issued a Notice to Remedy Breach to Bax on 27 April 2017. The breach was described as:1 Failure to proceed with the Works with due diligenceParticularsi.Practical completion is yet to take place despite the QMBA RRC being first entered into on 18 April 2016;ii.Item 8 of the schedule to the QMBA RRC stipulated that the Construction Period specified was to be 243 days;iii.The 243 days period has long expired; andiv.No extension of time request has been made. The breach was failure to proceed with the work with due diligence. By item 8 of the contract schedule the construction period was 243 days. Item 9 indicated that the date of commencement was to be determined under clause 8 of the general conditions. Clause 8 of the general conditions provided the date of commencement would be:(b) … within 10 business days of the contractor receiving all of the following:(i) all information, evidence and consents required to be given by the owner under clause 7;(ii) satisfactory evidence of the owners’ capacity to pay the contract price pursuant to clause 11.1;(iii) any building approval required pursuant to clause 5.1;(iv) if a financial institution is providing loan money to the owner, a notice from the lender to the contractor that the works may commence; and(v) a signed copy of the Engineers specification and confirmation if required under clause 11.11(d).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Richards & Anor v Queensland Building and Construction Commission & Anor [2019] QCAT 189
PARTIES:	TREVOR JAMES RICHARDS (first applicant) ELLEN HANNAH RICHARDS (second applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) BAX INVESTMENTS PTY LTD (second respondent)
APPLICATION NO/S:	GAR339-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	19 July 2019
HEARING DATE:	7 May 2019
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	1. The decision of the Queensland Building and Construction Commission made on 30 April 2018 disallowing the applicants’ claim under the statutory home warranty insurance scheme be substituted with the following decision: (a) The claim by Trevor and Ellen Richards under the statutory home warranty insurance scheme for non-completion of building work at 224 Back Creek Road, Palen Creek be accepted on the basis that they properly terminated the contract with Bax Investments Pty Ltd dated 18 April 2016 on 16 May 2017. 2. The applicants file and serve any submissions as to costs by 4pm on 1 August 2019. 3. The respondents file and serve any submissions as to costs in reply by 4pm on 12 August 2019 4. The costs of the proceeding will be determined on the papers without an oral hearing.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – where the applicants terminated a residential building contract on the respondent’s failure to proceed with due diligence – where the applicants claimed under the statutory home warranty scheme for incomplete building work – where the first respondent refused the claim on the basis the applicants had not been entitled to terminate the contract – whether the termination by the applicants was effective under the contract – whether the applicants were entitled to terminate under the general law Queensland Building and Construction Commission Act 1991 (Qld), schedule 1B s 40, s 44 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21(2)(b) Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312 Cousins T/as Cousins Housing Industries v Dumesny [2005] QCCTB 23 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49 Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 Sunbird Plaza Pty Ltd v Maloney & Ors (1988) 166 CLR 245 Zahedpur v Idameneo (No 123) Pty Ltd [2016] QCA 134
APPEARANCES & REPRESENTATION:
Applicants:	J R Moxon, instructed by Broadley Rees Hogan
First Respondent: Second respondent:	N Thirumoorthi, in-house lawyer Self-represented by L Bax