Saaroq Pty Ltd t/as Stroud Homes Wide Bay v Queensland Building and Construction Commission - [2024] QCAT 436

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Saaroq Pty Ltd t/as Stroud Homes Wide Bay v Queensland Building and Construction Commission & Ors [2024] QCAT 436

PARTIES:

SAAROQ PTY LTD T/AS STROUD HOMES WIDE BAY

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

ALEXANDER WALSH AND JUDY WALSH

(second respondents)

APPLICATION NO/S:

GAR060-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 May 2024

HEARING DATE:

10 October 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. The decision of the Respondent is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE REVIEW – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE –TERMINATION OF CONTRACT – where the applicant and the second respondents entered into a HIA building contract for the construction of a residential dwelling – where a condition of the contract was that the second respondents were required to provide evidence of capacity to pay – where deposit paid under the contract – where applicant represented it would provide information about opening a security account for payment of the building works – where second respondents relied on opening the security account to satisfy the condition about capacity to pay – where applicant requested price increase of contract price – where second respondents rejected any price increase – where applicant terminated the contract – where grounds of termination unrelated to condition requiring evidence of capacity to pay – where second respondents terminated on the basis of the applicant’s repudiation – where second respondents made a claim under the Statutory Home Warranty Scheme for the deposit – where first respondent accepted the claim – whether applicant’s termination valid – whether applicant estopped from relying on the capacity to pay clause to terminate the contract – whether applicant waived the requirement for the second respondents to provide evidence of capacity to pay – whether the second respondents’ termination of the contract valid

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20

Agricultural and Rural Finance Pty Ltd v Gardiner [2008]

HCA 57

Con Stan Industries of Australia Pt Ltd v Norwich Winterhur

Insurance (Australia) Ltd (1986) 64 ALR 481

Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603

Sargent v ASL Developments Ltd (1974) 4 ALR 257

APPEARANCES & REPRESENTATION:

Applicant:

Ms Campbell, solicitor of Heathstone Legal

First Respondent

Ms Hewish, solicitor of HWL Ebsworth Lawyers

Second Respondents

Self-represented

REASONS FOR DECISION

The applicant (‘Stroud’) is a construction company building residential homes in the Wide Bay area. On 31 March 2021 the second respondents (‘the Walshes’) entered into a standard HIA New House Construction Contract for the construction of a new house on their land at Urangan in the State of Queensland.[1] It was a fixed priced contract for $404,262.54. The Walshes paid a deposit of $20,213.13. The anticipated start date for the building was “60 days from the date of the contract”.[2]
[1]Exhibit 1 (hearing book) page 363.
[2]Ibid Schedule item 14 page 14.
Because of delays and the impact of the Covid-19 pandemic, building costs increased significantly in 2021. On 8 August 2021 Stroud sought a contract price increase from the Walshes of $56,694.31. This was rejected and Stroud terminated the building contract on 17 August 2021. The Walshes, by their solicitors, treated Stroud’s termination as a repudiation, terminated the contract and sought a return of the deposit.
The Walshes then made a claim for the deposit under the Queensland Building and Construction Commission Home Warranty Insurance Scheme (‘the scheme’). The Commission accepted the Walshes validly terminated the contract and were entitled to be paid the deposit. However, Stroud was not content with the Commission’s decision and sought an internal review. An internal review was conducted and the original decision was upheld on 17 February 2022. The deposit has been paid to the Walshes under the scheme.
This application is a review of the Commission’s decision under Chapter 2 Division 4 of the Queensland Civil and Administrative Tribunal Act2009 (Qld). The function of the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits.[3]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
Further background
The procedure adopted by Stroud after a preliminary contract was signed, was to allocate a liaison person to the project, in this case Ms Chloe McGregor. On 29 January 2021 an email, pro forma letter, was sent to the Walshes introducing Ms McGregor setting out her role in the construction process.[4] This was to assist with the various stages of the build and with choosing fit out items in the specifications, such as electrical fittings, tiles, appliances and colour scheme (as an example).
[4]Exhibit 1 page 276.
In that email letter the Walshes were initially asked to provide evidence of land ownership and finance details if applicable. If no finance was involved, they were asked to review:
The attached FAQ on Security Accounts, to examine how HIA[5] like us to handle owner-financed builds.
[5]Housing Institute of Australia.
If one goes to the FAQ on security accounts,[6] in answer to the question “what do I have to do to set up a security account?” the response is:
We will provide you with the forms and fill out as much as we can for you.
[6]Exhibit 1 page 434.
It is agreed a security account was never set up by the Walshes with or without the assistance of Stroud. Ms Aletha Walters, a director of the applicant, has provided statements of her involvement,[7] and gave evidence that the security account forms would have been provided with all of the documents given to the Walshes when the contractual documents were prepared. I will return to this topic.
[7]Ibid, pages 328 and 418.
There was a meeting between the Walshes and Ms McGregor on 24 March 2021 to discuss the information booklet provided and the documents. Mr Walsh says there would be further contact when the security account would be needed, and the forms provided. After this the contract was signed on 31 March 2021. There were never any discussions about the Walshes’ ability to pay for the build.
After signing the contract there were some delays in the process of selection of colours and changes to some of the electrical fittings, fans and clarification of pendant lights. These items are referred to in an email from the Walshes to Ms McGregor on 3 July 2021.[8] Also of note is the fact that the expected updated plans had not been received (although another party’s plans were given to the Walshes instead).
[8]Ibid, page 438 – 439.
Ms McGregor replied on 16 July 2021 addressing these matters indicating there would be no problems with the changes. Also, she would follow up with updated plans, and apologised for the inclusion of another party’s plans. There were no complaints from her about delay nor any questions raised about the security account or proof of ability to pay the contract price. The tenor of the email exchange is that everything was amiable and on track to progress the commencement of construction. Obviously the 60-day period had run out but this did not seem to be an issue with either party at that time.
However, following this, in email correspondence of 8 August 2021 and without prior notice, Ms Walters informed the Walshes that due to industry difficulties and extreme price rises, they needed to complete a price review on the contract before they could continue with the build. A price review letter dated 3 August 2021 was attached increasing the cost of the build by $56,694.31.[9]
[9]Ibid, pages 440 – 442.
The letter of 3 August 2021 made the following relevant points:
(a)the price increase notification was in accordance with clause 2 and 16 of the contract;
(b)the contract required a number of prerequisites to be completed (as outlined in clause 2.1 of the contract);
(c)it has taken a significant time to get the land registered;
(d)the Covid pandemic and short supply of materials has created a lot of uncertainty in the industry;
(e)price increases have been out of their control;
(f)under the terms of the contract and pursuant to clause 16 (delays beyond the reasonable control of the builder);
(g)a price review is required for reasonable costs incurred by the builder due to delays in carrying out the works in excess of 60 days.
The letter then goes on to state the reason for the price review in the following terms:
·Due to recent supply delays as a consequence of the COVID-19 pandemic, the Builder has been unable to secure supplies as required to start the job.
On 15 August 2021 the Walshes wrote to Stroud to reject the price increase on several grounds which included:
(a)the contract was a fixed price contract and costs increases are the responsibility of the builder;
(b)reference to the delay in the land being registered is clearly incorrect because it was always known to Stroud, as per the contract, the land was registered with the Walshes as registered proprietors in accordance with the rates notice provided to Stroud;
(c)rejecting any suggestion of delay on their part and noting they had still not received completed construction drawings;
(d)also, while the contract was still on foot, Stroud had unilaterally cancelled the QBCC Home Warranty policy;
(e)they sought performance of the contract.
On 17 August 2021 Stroud, by their solicitors, terminated the contract on the grounds that the Walshes did not accept the contract price variation. The termination also, seemingly, relies on:
(a)no approvals to commence work have been supplied by your financial institution;
(b)a rates notice is insufficient proof of title;
(c)selections have not been finalised to allow the builder to lodge necessary approvals to commence work.
Upon the contract coming to an end, the Walshes sought a return of the deposit and when it was not forthcoming made the claim under the Queensland Building and Construction Commission Home Warranty Insurance Scheme.
Issues on the review
At the commencement of the hearing, the issues in the review application were considerably narrowed. Whereas Stroud initially sought to rely on the grounds referred to in [15] above to contend it validly terminated the contact, it now only relies on the Walshes’ failure to comply with clause 2.1(b) of the contract by providing evidence to pay by, presumably, 17 August 2021.
This is certainly a sensible concession because it would seem obvious that the earlier grounds relied upon demonstrate that Stroud had not given proper consideration to the circumstances pertaining at the time. Firstly, from the very beginning no financial institution was involved in the build as noted in Item 5 in Schedule 1. Secondly, a rates notice with particulars of the owners of the property being identical to the contracting parties is sufficient proof of title, unless the builder (or perhaps a financial institution) requires additional proof. This is not a ground for termination under this contract. Thirdly, the emails from Ms McGregor of 16 July 2021 clearly demonstrate that any delays in colour selection did not impact the construction timeline. I find it difficult to accept that a colour change would impact the energy rating, but is unnecessary to decide that now.
That leaves clause 2.1(b) of the General Conditions which provides:
Commencement is to take place on or before the anticipated start date stated in Item 14 or within 20 working days from the day that:
(a) ………………
(b) the owner gives the builder evidence of the owner’s capacity to pay the contract price under Clause 7.1
The anticipated start date in Item 14 of Schedule 1 is:
Anticipated start date (clauses 2 and 16)
(if nothing stated, 60 days from the date of this contract)
Turning then to Clause 7.1, it provides that:
As soon as practicable after the date of this contract, the owner must give the builder evidence, to the builder’s satisfaction, of the owner’s capacity to pay the contract price by way of the progress payments and at the stages specified in Schedule 2
Reading clauses 2.1(b) and 7.1 together, the timeline for providing the evidence of capacity to pay is flexible. For example, once the 60 day period has passed, and Stroud has not elected to terminate under clause 2.2, the commencement date would then be 20 days after clause 2.1 has been satisfied.
By not providing evidence of capacity to pay by 31 May 2021 (60 days), Stroud says that the Walshes are in substantial breach of the contract giving rise to a right to terminate under clause 2.2 which provides:
If any of the requirements set out in clause 2.1(a) – (e) (inclusive) are not satisfied by the anticipated start date, the builder may, by notice in writing to the owner;
(a) end this contract, in which case, Clause 28.7 applies….
Clause 28.7 relates to the costs and damages the builder may recover from the owner.
It is conceded by the Walshes that they did not give to Stroud by 17 August 2021 evidence of their capacity to pay the contract price. However, in summary they say it was unnecessary to do so because they relied on the representation by Stroud that a security account would be set up with the HIA with the assistance of Stroud. This of itself would satisfy the condition. In other words, Stroud waived reliance on clause 2.2, or by their conduct is estopped from relying on it because it was to provide the forms and assist in setting up the security account.
The security account
Stroud’s position is the security account is irrelevant to the application and its termination of the contract. It is irrelevant because clause 2.1(b) should be strictly read and applied imposing a direct contractual obligation on the owner, the Walshes, to comply with it. However, the history of the relationship would suggest it does take on a relevance if the parties assumed a state of affairs whereby the establishment of the security account would satisfy the requirement of clause 2.1(b) of the contract.
The building costs are usually paid in two ways. Firstly, if finance is necessary then the financial institution will pay progress payments directly to the builder as work progresses, after any funds of the owner are first utilised. Secondly, if no finance is necessary, as was the case here, the owner pays the builder directly. However, given the substantial amounts involved, the builder needs to be assured the owner can pay for the build as and when progress claims are made. It is entirely reasonable for the builder to ensure there are sufficient funds to pay for the build before work starts.
The contract provides for both options. Item 6 in Schedule 1 makes provision for the financial institution to be inserted, which in this contract is noted that the contract is not subject to finance. Item 8 in Schedule 1 provides that a security account is to be established on or before commencement of the works. A security account, once established, is usually operated by both the owner and the builder agreeing to withdrawals. The fact that payment will be made by way of a security account, does not of itself satisfy the obligation on the owner to provide evidence of proof of ability to pay. However, once the account is established with the money deposited, then clearly this is evidence to satisfy clause 2.1(b).
The Walshes on the other hand say they were always willing to provide any information about capacity to pay and as a result of the conversations with Ms McGregor and the FAQ that would be achieved with the establishment of the security account. They were reliant on Stroud to provide the forms to the establish a security account. Mr Walsh has provided a statement[10] as to the history of the negotiations with Stroud, in particular Ms McGregor. Prior to signing the contract, Ms McGregor met the Walshes at the Stroud’s Maryborough office. They were given a “welcome pack” which included sundry documentation and relevantly here, the FAQ in respect of the security accounts, referred to above.
[10]Exhibit 1 page 421.
Mr Walsh goes onto record general conversations about the security account with Ms McGregor during their meeting on 24 March 2021. He was advised that further contact would be made when it was necessary to set up the security account. That is of course consistent with item 8 of the Schedule. There were no further discussions because they were waiting for Stroud to provide the forms.
Despite Stroud’s contention that the discussions about the security account are irrelevant to the application of clause 2.1(b), I take a different view. Firstly, there is no evidence from Ms McGregor about the conversations had at the meeting, so I am prepared to accept the evidence of Mr Walsh. Ms Walters insists that the forms were included in the welcome pack as part of the usual documentation provided to prospective owners, but she cannot be sure because she did not inspect the pack. She has not even provided any sample forms. Secondly, the welcome letter of 29 January 2021 represents that there were two options. The owner has the option to either provide finance lender details, or “review the attached FAQ on security accounts to examine how HIA like us to handle owner-financed builds”. The FAQ with respect to the security account clearly represented that Stroud would assist in setting up the account.
Although Ms Walters has provided a comprehensive affidavit about what occurred after the signing of the contract, she had no direct involvement with the Walshes, that is until 8 August 2021. The bulk of her affidavit relates to usual practices of the business, is argumentative in many places and expresses opinions based on the documents, rather than actual admissible evidence.[11] There is reliance on diary notes of telephone conversations between Ms McGregor and Mr Walsh, referred to in the last paragraph. However, there are concerns about the accuracy of the notes. In annexure “AJW – 4” to her affidavit she transcribes the notes in an excel spreadsheet of telephone conversations, exhibit 2. There are inconsistencies between the notes in “AJW – 4” and what is recorded in the spreadsheet for both 28 May 2021 and 4 June 2021. In “AJW – 4” in the note for 28 May 2021 there are the additional words “they keep pushing back”. In the spreadsheet for 4 June 2021, it is recorded “Still waiting on security account asking lots of questions” which is not reflected in “AJW – 4”.
[11]Recognising of course the rules of evidence do not apply in the Tribunal.
Mr Walsh denies he was “pushing back” and also any suggestion that he was “asking lots of questions” about the security account. He says this is simply not correct. He was waiting for the forms as promised at the meeting on 24 March 2021 to set up the security account. I accept his evidence on this point.
The discrepancy between the spreadsheet and exhibit “AJW – 4” was sought to be explained by Ms Walters at the hearing. It was unclear whether exhibit 2 was prepared first and then transposed onto the spreadsheet or the other way around. Despite me asking questions to clarify this, Ms Walters’ response was unsatisfactory to the point where I did not get clarity. This is concerning because it would appear additional words have been added to both documents, words which could be said to be in the interests of Stroud. Overall, I found Ms Walters to be generally evasive and unhelpful. I would also observe, that throughout her cross-examination she was abrupt, sought to argue her case rather than answer questions put to her generally, and would not make any appropriate concession about the security account forms not being with the welcome pack when clearly she could not be sure about this. Insofar as it is necessary to do so, my preference is to accept Mr Walsh’s evidence as to the events which occurred before termination in preference to Ms Walters, most of which is corroborated by the emails from Ms McGregor.

The effect of these conversations and the overall conduct of Stroud is that the only reasonable inference to draw is that the establishment of the security account would constitute the evidence of the Walshes’ capacity to pay the contract price. The next issue is the time for compliance with clause 2.1(b).
The anticipated start date under the contract was 28 May 2021 (a Friday) or 31 May 2021 (a Monday). By that date, under clause 2.1 the Walshes had not:
(a)according to Stroud, provided proof of title (a);
(b)provided evidence of capacity to pay (b);
(c)had not established a security account (c); and
(d)had not given the builder possession of the site (d).
Yet, despite that, subsequent to 31 May 2021 on Stroud’s own evidence, the Walshes and Ms McGregor were still in discussions about various aspects of the job including:
(a)on 04/06 – spoke to Alex: Working drawings and engineering…variations to be signed by the builder; colour consultant booked for Thursday…
(b)on 01/07 – Called Alex and left message: working and engineering drawings…variations completed and to be sent through…
(c)on 23/07 – Alex …received working drawings and engineering…colour consult was completed and ERR has been finalised. Variations finalised…reference to price review due to lapse of time….[12]
[12]Exhibit 2 – Phone call diary log; Exhibit “AJW – 4” to the affidavit of Ms Walters.
The point here is that under clause 2.2 if the requirements of clause 2.1(a) – (e) had not been satisfied by the anticipated start date, the builder may end the contract. Stroud elected not to end the contract for non-performance of those conditions, in particular 2.1(a) by the 60-day anticipated start day, but instead by its conduct, affirmed the contract by continuing to prepare for the build and engage with the Walshes via Ms McGregor to finalise plans and other details.
Stroud’s submission
Having abandoned the grounds relied on in the letter of termination of 17 August 2021, Stroud’s position is straightforward. On the basis of the Walshes’ non-compliance with 2.1(b) of the contract it was entitled to terminate pursuant to clause 2.2(a) of the contract. It offered to refund the balance of the deposit after deducting the builder’s reasonable costs incurred to the date of termination of $9,604.95.
It contends that there was no requirement to give a notice to remedy breach under clause 28 of the contract because the right to end the contract under clause 2.2 was a standalone right to terminate. In the circumstances the termination could not be regarded as repudiatory.
The Commission’s submission
The Commission’s position is that Stroud’s termination was unlawful and submits that the position taken by Stroud over simplifies the contractual relationship between the parties. To determine the contractual position of the parties at the time of termination it is therefore necessary to consider what actually occurred after signing the contract and before termination. Also, it is necessary to consider the Walshes’ obligation under the contract with respect to the setting up of a security account for payments.
The Commission contends that assuming the non-performance of the Walshes of the obligations under clause 2.1, Stroud could make an election to end the contract under clause 2.2(a) or extend the compliance time and increase the contract price. By the letter dated 3 August 2021 (actually sent by email on 8 August 2021) Stroud elected to increase the cost pursuant to clause 2.2(b) and not end the contract under 2.2(a). There was no mention of extending time to comply with the requirements of clause 2.1(a).
Mr Walsh rejected the price increase in his letter of 15 August 2021. Up until that point, at least, the contract remained on foot. Not only that, he also sought performance of the contract according to its terms, despite Stroud cancelling the Home Warranty Insurance.
There can be no doubt that as at 17 August 2021 the contract was on foot. However, with the rejection of the price increase, and with Stroud having elected to rely on 2.2(b), the Commission contends Stroud was bound to continue with the contract invoking clause 16 which provided for the addition of reasonable costs for which the builder was not responsible. There can be no argument that that was the position Stroud placed itself by the letter of 3 August 2021. Stroud, by reason of the election, was bound to continue with the contract and charge the Walshes “the reasonable costs” incurred as a result of any delay that could be sheeted home to the Walshes.
On a side note, there was no evidence at all about what amounted to “reasonable costs”. Without particulars of those costs, it would be reasonable for the owner to reject the price escalation on the grounds of reasonableness. There must be some basis to justify a price increase of the amount sought by Stroud. As it was, the figure of $56,694.31 was not supported by any rational basis other than that stated in the letter of 3 August 2021.
Instead of doing that, Stroud, when the price increase was rejected even though it may well have been entitled to some price increase, then sought to terminate the contract under clause 2.2(a). The letter of 17 August 2021 purporting to terminate states, after noting non-compliance with 2.1(a):
Accordingly, we are instructed that our client hereby elects to terminate the Contract pursuant to clause 2.2(a) Contract (sic). Our client will refund, in accordance with item 2.2 your deposit less any expenses that our client has incurred as a consequence of your build.
The Commission relies on what the High Court said in Sargent v ASL Developments Ltd[13] (per Mason J):
A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, i.e. when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or the performance of the contract. It matters not whether the right to terminate the contract is confirmed by the contract or arises at common law for fundamental breach - in each case the alternative right to insist on performance creates a right of election.
Essential to the making of an election is communication to the party affected by words or conduct of the choice thereby made and it is accepted that once an election is made it cannot be retracted... No doubt this rule has been adopted in the interests of certainty and because it has been thought to be fair as between the parties that the person affected is entitled to know where he stands and that the person elected should not have the opportunity of changing his election and subjecting his adversary two different obligations.
A person confronted with a choice between the exercise of alternate and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side. An election takes place when the conduct of the party is such that it would be justifiable only if an election had been made one way or the other. So, words or conduct which do not constitute the exercise of the right conferred by or under a contract and merely involve a recognition of the contract may not amount to an election to affirm the contract.
[13](1974) 4 ALR 257 at 266 (case references omitted).
Clearly, by the letter dated 3 August 2021 Stroud elected to affirm the contract and sought a price increase under clause 16. It was not an election on the grounds upon which Stroud now sought to terminate the contract. It was an election on how to proceed with the contract, ostensibly in reliance on clause 2.1 because of delays in having a number of prerequisites completed. Also, but not really relevant to the exercise of rights under clause 2.2, the impact of the pandemic.
Therefore, when considering the conduct of Stroud subsequent to the expiration of the 60-day period, it seems tolerably clear that it was intent on continuing with the contract and, the anticipated commencement date would then be within 20 days of compliance with 2.1. Alternatively, under clause 2.2, Stroud extended the time for compliance with 2.1. This is confirmed by the email from Stroud to the Walshes of 8 August 2021 in which it sought a price increase pursuant to clause 2.2 and thereby elected to affirm the contract.
The above conclusion is also consistent with the basis upon which Stroud sought to terminate the contract in the letter from its solicitors of 17 August 2021. The grounds relied upon were those set out in [15] above, now abandoned, and unrelated to failure to provide capacity to pay the contract price.
Estoppel or waiver
As an alternative, having regard to the conduct of Stroud in continuing to prepare final drawings, colour selections and having Ms McGregor continuing to liaise with the Walshes,[14] this created an assumed state of affairs the effect of which was that Stroud was estopped from relying on clause 2.2.
[14]Refer [36] above.
The Commission relies on what it submits was an estoppel by convention created by firstly, the representation in the FAQ about the security deposit, in that Stroud would assist the Walshes with this, and secondly by the ongoing discussions between the Walshes and Ms McGregor. By this conduct, it submits that:
(a)the parties have adopted an assumption as to the terms of their legal relationship;
(b)both parties have conducted their relationship on the basis of that mutual assumption;
(c)each party knew or intended that the other act on that basis, and;
(d)departure from that assumption will occasion detriment.[15]
[15]Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 at [200].
In Con Stan Industries of Australia Pt Ltd v Norwich Winterhur Insurance (Australia) Ltd,[16] the High Court discussed the basis of estoppel by convention:
Estoppel by convention is a form of an estoppel founded not on a representation of fact made by representor too and acted on by representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. The existence of an estoppel based on a convention between the parties has often been recognised.
[16](1986) 64 ALR481 at 491 (case references omitted).
On the evidence of Mr Walsh which I accept without reservation, Stroud’s conduct led to a state of affairs where the capacity to pay would be satisfied by the establishment of the security account. He was reliant on Stroud to assist in putting this in place and acted on the representations made in the FAQ and what Ms McGregor told him in the 24 March meeting. Furthermore, there was no further discussion about the issue and it seems that Stroud were unconcerned because after the expiration of the 60 day period, work continued progressing pursuant to the contract to the construction stage. This assumed state of affairs continued until Stroud’s purported termination.
Although Stroud’s conduct could also amount to a waiver of reliance on strict compliance with clause 2.1(b), this is consistent with the estoppel argument put by the Commission.[17]
[17]Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57.
Conclusion
Stroud terminated the contract after the Walshes rejected the proposed price increase based on supply delays as a consequence of the Covid-19 pandemic, and therefore the builder could not secure supplies to start the job. There was no other ground upon which Stroud sought to terminate.
I find Stroud was estopped from terminating under clause 2.2 for the reasons stated above. As a result of Stroud’s repudiation, the Walshes’ termination was lawful.
Therefore, the correct and preferable decision is that, under s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Commission is confirmed.