Rowan v Lead Constructions Pty Ltd - [2021] QCAT 214

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rowan v Lead Constructions Pty Ltd [2021] QCAT 214

PARTIES: PETER ROWAN

(applicant)

v

LEAD CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

BDL074-20

MATTER TYPE:

Building matters

DELIVERED ON:

17 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Lead Constructions Pty Ltd is to pay to Peter Rowan the amount of NINETEEN THOUSAND, TWO HUNDRED AND TWENTY-SEVEN DOLLARS AND SIXTY-EIGHT CENTS ($19,227.68) within 28 days of the date of this decision.

2. Lead Constructions Pty Ltd is to pay to Peter Rowan costs fixed in the amount of THREE HUNDRED AND FORTY-FIVE DOLLARS AND EIGHTY CENTS ($345.80) within 28 days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – where the applicant hired the respondent builder to undertake building work – where the scope of works was “Enclosure of Patio to Store Room” – where work never progressed beyond framing stage – where no attempt to complete works made – whether applicant is entitled to damages

Queensland Building and Construction Commission Act 1991 (Qld), s 6, s 77, Sch 1B s 4, Sch 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

Baese Pty Ltd v R A Bracken Building Pty Ltd (1990) 6 BCL 137

Bellgrove v Eldridge (1954) 90 CLR 613
IPN Medical Centres Pty Ltd v Van Houten & Anor [2015] QSC 204
J-Corp Pty Ltd v Mladenis [2009] WASCA 157.

Ventura v Svirac [1961] WAR 63.

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

No appearance

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Mr Rowan engaged Lead Constructions to undertake building work. The parties fell into dispute and Mr Rowan commenced these proceedings. The proceeding is to be finally determined.
The background to the dispute
On 18 August 2019 the parties entered into a level 1 minor works contract for the performance of building work (the contract).
The contract price was $6,857.99. The contract described the scope of works as ‘Enclosure of Patio to Store Room’. The construction period was 9 days. The date of commencement of the works was set out in clause 8.1(b) of the contract and was within 10 days of the builder receiving certain stated documents and information. Lead Constructions was responsible under the contract for obtaining building approval. The date of practical completion was the last day of the construction period.
By clause 18 of the contract, if Lead Constructions did not bring the works to practical completion by the practical completion date, Mr Rowan was entitled to give to Lead Constructions a written claim for liquidated damages at the rate of $25.00 per day for each day after the date of practical completion the works remained incomplete until the date of practical completion or…

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 Rowan v Lead Constructions Pty Ltd

Details

AGLC: Rowan v Lead Constructions Pty Ltd [2021] QCAT 214
Case: [2021] QCAT 214
Decision Date: 17 June 2021

CaseChat Overview and Summary

Mr Rowan, a building owner, engaged Lead Constructions Pty Ltd, a building contractor, under a level 1 minor works contract to undertake building work. The scope of works was described as the "Enclosure of Patio to Store Room." The contract outlined a 9-day construction period and specified that Lead Constructions would be responsible for obtaining building approval. The construction began on 25 August 2019 and ceased on 30 August 2019, leaving the works incomplete. Mr Rowan terminated the contract on 7 January 2020 and subsequently brought proceedings against Lead Constructions in the Queensland Civil and Administrative Tribunal. The central issue before the tribunal was whether Mr Rowan was entitled to damages for Lead Constructions' failure to complete the works.

The tribunal held that Lead Constructions had breached the contract by failing to complete the works within the stipulated period and by not making any attempt to complete the works after cessation. The tribunal further held that the damages were confined to the agreed liquidated damages as specified in the contract. Mr Rowan's claim for loss of rent was dismissed. The tribunal assessed the total damages payable by Lead Constructions to Mr Rowan, which included the liquidated damages and the filing fees, and ordered Lead Constructions to pay Mr Rowan $19,227.68 in damages and $345.80 in costs.

The tribunal's decision was based on the parties' agreement on the liquidated damages in the contract, which was the sole remedy for delay in completion. The tribunal found that Lead Constructions' failure to comply with directions to file a response had unnecessarily disadvantaged Mr Rowan, justifying the tribunal's power to make a final decision in the proceedings. The tribunal concluded that the damages should be limited to the liquidated damages specified in the contract, and dismissed Mr Rowan's claim for loss of rent. The final orders required Lead Constructions to pay Mr Rowan the assessed damages and costs within 28 days of the decision.

Orders

Orders of the court

1. Lead Constructions Pty Ltd is to pay to Peter Rowan the amount of NINETEEN THOUSAND, TWO HUNDRED AND TWENTY-SEVEN DOLLARS AND SIXTY-EIGHT CENTS ($19,227.68) within 28 days of the date of this decision.

2. Lead Constructions Pty Ltd is to pay to Peter Rowan costs fixed in the amount of THREE HUNDRED AND FORTY-FIVE DOLLARS AND EIGHTY CENTS ($345.80) within 28 days of the date of this decision.

Background

Background to the litigation

Mr Rowan engaged Lead Constructions to undertake building work. The parties fell into dispute and Mr Rowan commenced these proceedings. The proceeding is to be finally determined. The background to the dispute On 18 August 2019 the parties entered into a level 1 minor works contract for the performance of building work (the contract). The contract price was $6,857.99. The contract described the scope of works as ‘Enclosure of Patio to Store Room’. The construction period was 9 days. The date of commencement of the works was set out in clause 8.1(b) of the contract and was within 10 days of the builder receiving certain stated documents and information. Lead Constructions was responsible under the contract for obtaining building approval. The date of practical completion was the last day of the construction period. By clause 18 of the contract, if Lead Constructions did not bring the works to practical completion by the practical completion date, Mr Rowan was entitled to give to Lead Constructions a written claim for liquidated damages at the rate of $25.00 per day for each day after the date of practical completion the works remained incomplete until the date of practical completion or termination. Mr Rowan says that the building works commenced on 25 August 2019 and ceased on 30 August 2019. On 7 January 2020 Mr Rowan terminated the contract. The jurisdiction of the Tribunal I am satisfied as to the following and make findings that:(a)Mr Rowan is a building owner;[1](b)Lead Constructions is a building contractor;[2](c)The building work was domestic building work;[3](d)The contract was level 1 regulated contract for the performance of domestic building work;[4](e)The dispute between the parties is a domestic building dispute;[5](f)The tribunal has jurisdiction to hear and decide the dispute;[6](g)Prior to commencing the proceedings, Mr Rowan complied with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld).[7][1]Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B, s 1.[2]Ibid.[3]Ibid, Schedule 1B, s 4(1)(b).[4]Ibid, s 6(1).[5]Ibid, Schedule 2.[6]Ibid, s 77(1).[7]Ibid, s 77(2).The power of the Tribunal to assess damages I am satisfied that service of the proceedings has been effected upon Lead Constructions.[8][8]Affidavit of service of Peter Rowan filed 30 June 2020; further Affidavit of service of Peter Rowan filed 30 June 2020. Lead Constructions was directed to file a response to the application by 27 July 2020. The direction was not complied with. Lead Constructions was directed to file a response to the application by 14 September 2020 failing which Mr Rowan would be entitled to a final decision in the proceedings, conditional upon the assessment of damages. Lead Constructions failed to comply with the direction. The tribunal may make a final decision in a proceeding in circumstances where a party fails, without reasonable excuse, to comply with tribunal directions and thereby unnecessarily disadvantages the other party to the proceedings.[9] Such was the case here. The failure by Lead Constructions to comply with directions to file a response unnecessarily disadvantaged Mr Rowan by delaying the progress of the proceedings to a final determination. On 23 September 2020 the tribunal made a decision in favour of Mr Rowan conditional upon the assessment of his entitlement to damages. [9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows from the foregoing that I favour a construction of the contract that damages for delay in the completion of the works was intended by the parties to be confined to the agreed liquidated damages. I therefore do not allow the claim by Mr Rowan of loss of rent. Conclusion I assess the total amount of the damages payable by Lead Constructions to Mr Rowan in the sum of $19,227.68. It is appropriate that Mr Rowan also recover the filing fees on the application in the amount of $345.80. I make orders accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rowan v Lead Constructions Pty Ltd [2021] QCAT 214
PARTIES:	PETER ROWAN
(applicant)
v
LEAD CONSTRUCTIONS PTY LTD
(respondent)
APPLICATION NO/S:	BDL074-20
MATTER TYPE:	Building matters
DELIVERED ON:	17 June 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. Lead Constructions Pty Ltd is to pay to Peter Rowan the amount of NINETEEN THOUSAND, TWO HUNDRED AND TWENTY-SEVEN DOLLARS AND SIXTY-EIGHT CENTS ($19,227.68) within 28 days of the date of this decision. 2. Lead Constructions Pty Ltd is to pay to Peter Rowan costs fixed in the amount of THREE HUNDRED AND FORTY-FIVE DOLLARS AND EIGHTY CENTS ($345.80) within 28 days of the date of this decision.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – where the applicant hired the respondent builder to undertake building work – where the scope of works was “Enclosure of Patio to Store Room” – where work never progressed beyond framing stage – where no attempt to complete works made – whether applicant is entitled to damages Queensland Building and Construction Commission Act 1991 (Qld), s 6, s 77, Sch 1B s 4, Sch 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48 Baese Pty Ltd v R A Bracken Building Pty Ltd (1990) 6 BCL 137 Bellgrove v Eldridge (1954) 90 CLR 613 IPN Medical Centres Pty Ltd v Van Houten & Anor [2015] QSC 204 J-Corp Pty Ltd v Mladenis [2009] WASCA 157. Ventura v Svirac [1961] WAR 63.
APPEARANCES & REPRESENTATION:
Applicant:	Self represented
Respondent:	No appearance
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)