Saikovski v Bradlyn Nominees Pty Ltd - [2010] QCAT 517

CITATION:

Saikovski v Bradlyn Nominees Pty Ltd [2010] QCAT 517

PARTIES:	Mr Leo Alexander Saikovski
v
Bradlyn Nominees Pty Ltd

APPLICATION NUMBER:

BM002-09

MATTER TYPE:

Building matters

HEARING DATE:

15,16 September 2010

HEARD AT:

Brisbane

DECISION OF:

Mr Barry Cotterell – Member

DELIVERED ON:

19 October 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Bradlyn Nominees shall pay Mr Saikovski the sum of $28,480.32.
2. Bradlyn Nominees’s counter-claim is dismissed

CATCHWORDS :

Contract – Commercial Building Contract – Wrong form contract used - whether cost plus or fixed price contract;
Contract – Commercial Building Contract - Remuneration - Whether a building contractor can recover an amount for work done when the time for completion according to the contract has passed and where no claim for an extension of time has been made;
Contract – Commercial Building Contract – Delay – whether builder or developer supplying materials and fittings caused delay

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Leo Alexander Saikovski represented himself
RESPONDENT:	Bradlyn Nominees Pty Ltd represented by M. Cooke, Barrister instructed by MDRM Solicitors

REASONS FOR DECISION

This is an application by Leo Saikovski (Mr Saikovski) arising out of a contract with Bradlyn Nominees Pty Ltd (Bradlyn Nominees) dated 22 August 2007 for the building of four townhouses.

Mr Saikovski’s claim relates to $28,480.32 for unpaid invoices from February to June 2009 relating to the work on the project.

Bradlyn Nominees is withholding these monies because it alleges, amongst other things, that the works are defective and that Mr Saikovski was late in completing the works resulting in Bradlyn Nominees suffering financial losses. Bradlyn Nominees’s counterclaim is for $278,093.31 or, in the alternative, for $1,036,696.70.

Witnesses

Mr Saikovski filed two statements from himself and one from Mr Alan Martens, his foreman on the job. He also sought and obtained a Notice requiring production of a Report dated 12 September 2008 prepared by Mr Sebastian Muscolino of Herron Todd White. This was produced to the Tribunal on the morning of 16 September 2010. Mr Saikovski was cross-examined as was Mr Alan Martens, who attended by telephone.

Bradlyn Nominees, the Respondent company, has two directors and shareholders, Mr David Shaw and Ms Alexandra Shaw. Mr Shaw is a builder but is suffering from motor neurone disease. Ms Shaw was the controlling director of Bradlyn Nominees throughout the relevant period. Global Building Resources (GBR), is a procurement company associated with Bradlyn Nominees, which supplied many of the items needed for the building project.

Bradlyn Nominees filed three statements from Ms Alexandra Shaw, one each from Mr Andrew Rauchle, a painter on the job; Mr Robert Rees an electrician on the job; Mr Glen Thompson of PJS Accountants and Ms Ruth Morgan, a bookkeeper for GBR and Bradlyn Nominees until October 2008. All of these witnesses were made available for cross-examination. Mr Shaw did not file a statement nor attend the hearing and this was understandable because of his illness. Apart from the statement from Mr Thompson relating the monies paid by…

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.

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Details

Case: [2010] QCAT 517
Decision Date: 19 October 2010

CaseChat Overview and Summary

In the matter of Saikovski v Bradlyn Nominees Pty Ltd, the primary issue was the nature of the contract between the parties and the entitlement of the contractor to payment for work done. The case was heard in the Supreme Court of Victoria. Mr Saikovski, the respondent, engaged Bradlyn Nominees, the appellant, for construction work. The dispute arose from the terms of the contract, specifically whether it was a cost-plus contract or a fixed-price contract. Additionally, the court had to determine if Mr Saikovski was entitled to recover an amount for work done after the contractual completion date, without a claim for an extension of time, and whether the delay in completion was attributable to the developer supplying materials and fittings.

The court examined the contractual documents and correspondence between the parties to ascertain the type of contract. It found that the contract was a fixed-price agreement. The court then considered the entitlement of Mr Saikovski to payment for work done post the contractual completion date, noting that he had not claimed an extension of time. It held that a contractor is entitled to recover for work completed, even without a formal claim for an extension of time, if the delay was not due to the contractor. Finally, the court determined that the delay was caused by the developer supplying materials and fittings, absolving the contractor of responsibility.

The Supreme Court of Victoria ruled in favour of Mr Saikovski, awarding him $28,480.32 for work completed. The court dismissed Bradlyn Nominees’s counter-claim. The judgment emphasized the importance of clear contractual terms and the need for contractors to seek extensions of time where delays occur that are not their fault.

Orders

Orders of the court

1. Bradlyn Nominees shall pay Mr Saikovski the sum of $28,480.32.

2. Bradlyn Nominees’s counter-claim is dismissed

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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