Sand & Surf Design Pty Ltd v Surrey & Anor

CITATION: Sand & Surf Design Pty Ltd v Surrey & Anor [2014] QCATA 225

PARTIES:	Sand & Surf Design Pty Ltd (Applicant/Appellant)
v
Kevin Surrey Alexis Surrey (Respondents)

APPLICATION NUMBER: APL209-14

MATTER TYPE: Appeals

HEARING DATE: 12 August 2014

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver
Member Dr Cullen

DELIVERED ON: 22 August 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Insofar as leave to appeal is necessary it is granted.

2.    The Tribunal’s decision of the 17 April 2014 is set aside.

3.    It is declared that the contract entered into between the parties dated 23 June 2013 was lawfully terminated by the applicant on 28 October 2013.

CATCHWORDS:

BUILDING CONTRACTS – TERMINATION – where contrary to the terms of the contract homeowners disturbed the building site – whether concrete footing system compromised – where findings of fact that footing system “disturbed” – whether warranties under the building contract and the Domestic Building Contracts Act invalidated – where obligation of builder to comply with law under the contract – where builder issued a Notice of Variation to replace the footing system – whether reasonable to issue notice – where homeowners alleged the conduct of the building was repudiatory – whether the homeowners termination of the contract was lawful in the circumstances – where tribunal failed to have regard to all of the evidence on termination.

Queensland Civil and Administrative Tribunal Act 2009 (Qld)s 146
Domestic Building Contracts Act 2000 (Qld) Part 4

Foran v Wight (1989) 168 CLR 385
Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Self represented by Mr Ferguson

RESPONDENTS: Self represented

REASONS FOR DECISION

1. The applicant is a registered builder. Mr Ferguson is a director of the applicant and dealt with the respondents. On 23 June 2013 the applicant and the Surreys entered into a Master Builders Residential Building Contract for the applicant to construct a residential dwelling at 55 Forbes Road, Sandy Creek. A deposit was paid and work commenced in July 2013.

2. Following some initial earthworks and preparation of the building pad, the applicant set about constructing a footing system for the house. The footing system was comprised of a number of concrete piers with metal casting support brackets. The brackets were to take stumps upon which the flooring system would be constructed with bearers and joists. The pier footing system was completed by the end of July. Subsequent to this, in late August, the applicant says that the Surreys brought machinery onsite to undertake further earthworks.

3. The machine(s) worked inside the timber profiles setting out the job and around the pier footing system. Mr Ferguson was concerned that the presence of machinery around the concrete piers may have compromised the integrity of the concrete footings. There was a dispute about this and ultimately the respondents purported to terminate the building contract on 17 October 2013.  This was followed by the Applicant’s purported termination on 28 October 2013.

4. Soon after the purported terminations,…