Rodier v Neater Constructions (Qld) Pty Ltd

[2004] QDC 89

DISTRICT COURT OF QUEENSLAND

CITATION:	Rodier –v- Neater Constructions (Q) Pty Ltd [2004] QDC 089
PARTIES:	ROCHELLE RODIER

Applicant

Against

NEATER CONSTRUCTIONS (Q) PTY LTD

Respondent

FILE NO:	401/03
PROCEEDINGS:	Application for leave to appeal
ORIGINATING	Queensland Building Tribunal
COURT:
DELIVERED ON:	4 May 2004
DELIVERED AT:	Townsville
HEARING DATES:	25 March and 1 April 2004
JUDGE:	CF Wall QC
ORDERS:	1. Application for leave to appeal dismissed 2. Applicant pay respondent’s costs of the application assessed on the standard basis, including any reserved costs.
CATCHWORDS:	BUILDING CONTRACT – termination – leave to appeal - wh. tribunal correct in determining that respondent builder had lawfully terminated building contract – implied obligation on each party to do all things necessary to enable the other party to have the benefit of the contract – appct withheld information from the resp necessary for the resp to proceed with its obligations under the contract - findings of fact – not open to applicant to raise new issues on appeal
COUNSEL:	Mr M. Gynther – Applicant Mr K. Priestly - Respondent
SOLICITORS:	P. Hick (Boulton Cleary & Kern) – Applicant Miller Harris – Respondent
04052004 T3-4/DLD M/T TSVDC1/2003 (Wall DCJ)	REVISED COPIES ISSUED

State Reporting Bureau

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Date: 4 May 2004

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE C F WALL QC

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Appeal No D401 of 2003

ROCHELLE RODIER	Applicant(Appellant)
and
NEATER CONSTRUCTIONS (Q) PTY LTD	Respondent

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TOWNSVILLE

..DATE 04/05/2004
04052004 T3-4/DLD M/T TSVDC1/2003 (Wall DCJ)

HIS HONOUR: This is an application by the home owner for leave to appeal against a	1
decision of the Queensland Building Tribunal delivered on the 6th of October 2003. I will
refer to that decision as the second decision.
The background to the application is contained in an earlier decision of the Tribunal delivered
on the 4th of October 2003, which was referred to during the hearing of the application. I will	10
refer to that decision as the first decision.
The issue in the present application is whether the Tribunal was correct in determining that
the respondent builder had lawfully terminated the building contract or alternatively, whether
the applicant had demonstrated error in this respect on the part of the Tribunal in its
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conclusion to the effect that the respondent had lawfully terminated the contract. Much
argument was devoted to this issue, but after considering all of the material and the
submissions made by both parties, I have concluded that the appeal does not enjoy sufficient
prospects of success to warrant the grant of leave to appeal.
In its first decision the Tribunal determined that the respondent was liable under the contract
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to construct the revetment walls for the boat ramp and that associated retaining walls were
not part of the contract and accordingly, were the applicant's responsibility.
Notwithstanding this decision, the applicant initially contended during the period between the
first decision and the second hearing that responsibility for the retaining walls was:
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(1)	Below the high water mark - the respondent under the contract;
(2)	Above the high watermark - the applicant.

See the letter from the applicant's solicitors to the respondent's solicitors dated the 3rd of

June 2003.	50
04052004 T3-4/DLD M/T TSVDC1/2003 (Wall DCJ)
The respondent's solicitors maintained that the retaining walls needed to be built before the	1
respondent could construct the revetment walls. See their letter to the applicant's solicitors
dated the 6th of June 2003. For practical purposes, this required the provision of design and
related details for the retaining walls in the first place.
EPA approval appears to have been required for the ramp and the associated retaining and	10
revetment walls. The respondent was not able to proceed further with obtaining that
approval in the absence of construction details for the retaining walls and these the applicant
would not, so the Tribunal found, provide. The respondent, having given a notice to
complete, then terminated the contract.
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The respondent's contractual obligation was to make the application for approval to the EPA.
The Tribunal concluded that without details of the retaining walls, the respondent was unable
to do this and that the applicant would not, as was her responsibility, provide those details.
The Tribunal's conclusions were expressed as follows in paragraphs 39 and 42 to 45 of its
second decision:
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"39 What the Applicant has done however is to fail (prior to the date the

Respondent terminated this contract, namely 4 July 2003) to have provided
the Respondent with instructions as to the manner in which the retaining wall
along the cut was to be constructed, or indeed to have co-operated in any

respect with the Respondent towards such constructions. I am satisfied that without such instructions the Respondent was not in a position to prepare the plan or amended plan for submission to the Environmental Protection Agency for its approval of the works in accordance with what the Agency had	40
previously required.

42         In my view the Applicant's failure (probably because of her incorrect

interpretation of my decision and her obligations under the Residential my view, at all, notwithstanding the letter from Mr Gillan of 8 July 2003.
Building Contract) to provide instructions to the Respondent as to the retaining
wall so frustrated the Respondent's attempts to complete the contract that the
Respondent issued the Notice to Complete dated 19 June 2003, which the

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43         Whilst the Respondent's Notice to Complete appears to have been

given under the general law (a course not precluded by terms of the contract),
nevertheless the Notice to Complete appears in other respects to have
complied with Clause 22 of the Residential Building Contract General
Conditions, giving the Respondent not only the right in general law, but also

04052004 T3-4/DLD M/T TSVDC1/2003 (Wall DCJ)

under the contract, to have terminated the contract by further written notice to	1
the Applicant which the Respondent did by letter of 4 July 2003.

44         I should perhaps further note that, in my view, given the level of

disputation between these parties, it would not only have been inadvisable,
but imprudent, for the Respondent to have proceeded with the application to
the Environmental Protection Agency on the basis of what it may have
believed the Applicant would accept by way of a retaining wall, the cost of
which was to be borne by the Applicant. This should have been apparent to

the Applicant prompting cooperation towards ensuring that the Applicant's	10
implied obligation (which is expressed by the relevant authorities as a
'fundamental commitment to mutual cooperation') was clearly met. As it was, the Applicant at best prevaricated, and at worst, simply refused to co-operate with the Respondent in ensuring that the contract proceeded to completion.
Had the Applicant, for example, enquired of the Respondent as to what the
alternatives were as to the construction of the retaining wall, for which the
Applicant had responsibility, the Respondent would itself had been under an
obligation to provide alternatives, perhaps to the extent of costings, so that the
Applicant could make the requisite decision. None of that, of course, took
place.	20

45         For the above reasons it is my view that the Respondent's solicitors

acted properly and lawfully in bringing this contract to an end."

In my view, these findings were clearly open to the Tribunal.

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Before me, the applicant did not contest the finding that if a retaining wall was necessary, the

applicant was responsible for the design, construction and payment of the retaining wall.

This seemed to be an attempt to re-canvass the requirements of the EPA and its jurisdiction

over foreshore protection works, notwithstanding that the applicant's counsel contended at

the Tribunal that the respondent needed no further information from the applicant and that

both sides agreed in the Tribunal that the issue was whether the applicant withheld

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information from the respondent that was necessary for the respondent to proceed with the

application to the EPA for approval to construct the boat ramp. See paragraphs 33 and 34 of

the second decision. The finding of the Tribunal was that she did and in my view, that finding

was clearly open on the material before the Tribunal which consisted only of various letters.

It is too late now to seek to challenge or question the powers of the EPA. They were not

challenged in the Tribunal.	50
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It is not to the point to contend, by reference to the EPA letter of the 14th of August 2001	1
referred to in the notice to complete, that the EPA may not in fact have required retaining
walls. What the EPA said was that if no rock revetment or retaining walls were to be
constructed, it required information on how the neighbouring property would not be affected
by the excavation/batters, slope/cut failure and erosion. The respondent was required to
construct revetment walls.	10
The effect of the Tribunal's finding was that the applicant did not provide any of the
information to or for the EPA which she was required to provide, which would have allowed
the EPA to process the application. There was ample evidence to support this finding.
Reference was also made to the plan CBN24 and paragraph 20 of the first decision. The
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plan was sent to the EPA as part of the respondent's obligation to make the application to the
EPA. I will say a little more about this plan shortly.
Effectively, the evidence suggested non-cooperation on the part of the applicant (perhaps for
the reason referred to by the Tribunal in paragraph 42 of its second decision). The
submission was made to the Tribunal by the applicant (paragraph 35) and rejected, that the
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respondent had, without further details and information from the applicant, all the necessary
information and knowledge to make the application to the EPA.
The applicant also mounted a related argument that the respondent itself was in breach of its
obligations with respect to design and details of the revetment walls (the plan CBN24 was
referred to) and was not ready, willing and able to meet its contractual obligations in this	40
respect. This argument involved an attempt to re-argue the respective obligations of the
parties with respect to the boat ramp and the requirements of the EPA. So far as the EPA is
concerned, the argument runs counter to the submission by her counsel at the Tribunal
(paragraph 35, second decision) to the effect that the respondent had, at all relevant times,
the necessary information and knowledge to make the application to the EPA. It is too late
now to re-argue what, as a matter of fact, the EPA requirements meant. The hearing before	50
the Tribunal clearly proceeded on the basis that revetment and retaining walls were to be
constructed and who was at fault in providing information relevant to those matters. 04052004 T3-4/DLD M/T TSVDC1/2003 (Wall DCJ)

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Mr Gynther for the applicant argued that the plan, CBN24, was so lacking in detail that it

evidenced that the respondent was not in fact ready, willing and able to meet its contractual

obligations. This plan was prepared at a relatively early stage and preceded the EPA's letter

of the 14th of August 2001.

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It is implicit in the findings made by the Tribunal that had the applicant done what the

Tribunal concluded she should have done, this plan would have been superseded by one

with sufficient details to satisfy the requirements of the EPA.

It was next argued that construction of the boat ramp was not an essential term of the

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contract, the breach of which would justify termination. It is not apparent from the second

decision that there was any issue about this in the Tribunal. Rather, the issue was whether

there was a breach of the implied obligation on each party to a contract to do all such things

as are necessary for his or her part to enable the other party to have the benefit of the

contract. See paragraphs 28, 29, 30, 34, 39, 42 and 44 of the second decision. It is now not

open to the applicant to raise a new issue. The conclusion reached by the Tribunal in

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relation to non-cooperation by the applicant was, I have already concluded, open to it and in

any event was a finding of fact.

The applicant then argued that 14 days was not a sufficient time to complete. This was the

period referred to in the notice to complete (paragraph 20, second decision). This point was

not argued in the Tribunal and the applicant should not be permitted to do so now. In any	40
event it is, I consider, implicit in the second decision that the Tribunal concluded that what
the applicant should have done was capable of being done within 14 days. There was no
evidence before the Tribunal bearing on this issue and it is not open to the applicant to
speculate about what findings the Tribunal should have made in such circumstances, more
so when it was not an issue then raised for consideration.
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The outline of submissions of Mr Gynther are very detailed and, with respect, they and his
very able oral argument in support seek to re-argue or go behind many of the factual issues 04052004 T3-4/DLD M/T TSVDC1/2003 (Wall DCJ)
at both hearings with a view to challenging findings of fact made by the Tribunal, following	1
which it is submitted the applicable legal principles should lead to a contrary result. As I
have already said, there was in my view a sufficient evidentiary foundation for the findings of
fact made by the Tribunal and those findings are not able to be challenged on this
application.

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Accepting those findings I am not satisfied, bearing in mind the parameters of argument at

the second hearing and the fact that there does not appear to have been any dispute at the

second hearing about applicable legal principles, that the result reached by the Tribunal was

wrong. When analysed, the issues before the Tribunal were factual and they were resolved

adversely to the applicant.

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There appears to have been no issue at the Tribunal as to the legal consequences flowing

from those findings of fact. It is now not open to the applicant to seek to overturn those

findings of fact with a view to securing a different result. Much time was devoted to

contending that the evidence before the Tribunal did not support its factual findings, was not

sufficient, was ambiguous or meant something else. I recognise that the findings made by

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the Tribunal were based solely on correspondence (see paragraph 6, second decision) and

that minds may differ about what that correspondence meant. The Member constituting the

Tribunal had the benefit of the first hearing and knowledge of the background of the dispute

gained during that hearing. In fact, evidence referred to and findings made at the first

hearing were referred to on the application. Notwithstanding the relatively limited nature of

the second hearing, it has not in my view been established that the findings made by the	40
Tribunal, particularly that the applicant withheld information from the respondent that was
necessary for the respondent to proceed with the application to the EPA to construct the boat
ramp, were not fairly open to it and supported by the correspondence referred to by the
Tribunal.
For these reasons the application, to the extent that it contends that the Tribunal made errors	50
of law, cannot succeed. 04052004 T3-4/DLD M/T TSVDC1/2003 (Wall DCJ)
I dismiss the application for leave to appeal.	1
...
HIS HONOUR: I order that the applicant pay the respondent's costs of the application to be
assessed on the standard basis, including any reserved costs.	10

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