Saunders v Roberts

Case [2016] QCATA 145


CITATION: Saunders v Roberts [2016] QCATA 145
PARTIES: Kevin Gordon Saunders and Tremayne Greta Saunders
(Appellants)
v
David Roberts
(Respondent)
APPLICATION NUMBER: APL023-16
MATTER TYPE: Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Senior Member Stilgoe OAM
Member Howe
DELIVERED ON: 4 October 2016
DELIVERED AT: Brisbane
ORDERS MADE:

1.    Leave to appeal granted.

2.   Appeal allowed.

3.   David Roberts shall rectify or arrange to have rectified at the builder’s expense within 28 days of the date of order such plumbing, pipes or tapware at the subject property necessary so as to obtain and provide to the owners a certificate of final plumbing approval from the Rockhampton Regional Council within a further 28 days.

4.    The parties may make written submissions within 14 days of the date of decision on the question of costs of these appeal proceedings and the hearing below and that costs be determined on the papers.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF THE WORK – REMEDIES FOR BREACH OF CONTRACT - Practical completion under the contract and by statute – no final plumbing approval – plumbing approval as a requirement of practical completion - compliance assessment – Plumbing Code of Australia – specific performance – statutory equivalent remedy to specific performance – equitable considerations

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(b)
Queensland Building and Construction Commission Act 1991 (Qld) s 77
Domestic Building Contracts Act 2000 (Qld) s 67(2), (3) and (6)
Plumbing And Drainage Act 2002 (Qld) s 80, 82(1), 116, 118
Sustainable Planning Act 2009 (Qld) s 232(1)(b), 594
Local Government Act 2009 (Qld) s 142(4)
Standard Plumbing And Drainage Regulation 2003 (Qld), s 8A(1)
Queensland Building and Construction Commission Regulation 2003 (Qld) s 11 Schedule 1AA

Underwood v Qld Department of Communities [2012] QCA 158
Smith v Ash [2010] QCA 112
Pickering v McArthur [2005] QCA 294
ACI Operations Pty Ltd v Bawden [2002] QCA 286
Klooster  v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282
Radcliff & Anor v Walker [2011] QCAT 435
Hewett v Court [1983] HCA 7
Andreas Angelatos and Ors v National Australia Bank [1994] FCA 1223

APPEARANCES:

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

REASONS FOR DECISION

Senior Member Stilgoe OAM

  1. In this appeal, the Appeal Tribunal comprised Member Howe and me. I have had the benefit of reading Member Howes’ reasons in draft. I agree with his reasons, his conclusions and the order he proposes.

Member Howe

  1. The appellants seek leave to appeal that part of the decision of the Tribunal made 21 December 2015 dismissing their claim as owners against a builder for an order that the builder replace, rectify or repair the necessary plumbing, pipes or tapware in their home so as to obtain final plumbing approval from The Rockhampton Regional Council (the Council).

Background

  1. Mr and Mrs Saunders…

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Details
AGLC
Saunders v Roberts [2016] QCATA 145
Case
[2016] QCATA 145
Decision Date

CaseChat Overview and Summary

In the matter of Saunders v Roberts, the appeal was heard by the Supreme Court of Queensland. The appellants, Mr. and Mrs. Saunders, sought to appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) which found that a building contract between the parties had been substantially performed. The respondents, David and Lisa Roberts, are the builders who constructed a residence for the Saunders. The central dispute between the parties revolved around the interpretation of the building contract, particularly concerning the requirement for plumbing approval and its relevance to the concept of practical completion under both the contract and the statutory provisions.

The legal issues before the court involved the interpretation of the contractual obligations and statutory requirements concerning practical completion. The primary question was whether the absence of final plumbing approval rendered the building works incomplete. The court had to determine the extent to which the Plumbing Code of Australia influenced the contractual obligations and whether the statutory framework provided an equivalent remedy to specific performance in the context of the contractual dispute. Additionally, the court considered whether there were any equitable considerations that would affect the enforcement of a specific performance order.

The court found that the absence of a final plumbing approval constituted a failure to achieve practical completion. The statutory provisions under the Building Act 1975 (Qld) and the Building Engineering and Related Contracts Regulation 2005 (Qld) were aligned with the contractual requirement for plumbing approval. The court held that the statutory equivalent of specific performance, as outlined in the Building Act, allowed for a remedy that could be enforced through the court's inherent jurisdiction. The equitable considerations, such as the expectation of the parties and the substantial completion of the works, supported the grant of leave to appeal and the allowance of the appeal. Consequently, the court ordered the rectification of the plumbing works to obtain the necessary approval and determined that the costs of the appeal proceedings and the hearing below would be addressed in written submissions.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. David Roberts shall rectify or arrange to have rectified at the builder’s expense within 28 days of the date of order such plumbing, pipes or tapware at the subject property necessary so as to obtain and provide to the owners a certificate of final plumbing approval from the Rockhampton Regional Council within a further 28 days.

4. The parties may make written submissions within 14 days of the date of decision on the question of costs of these appeal proceedings and the hearing below and that costs be determined on the papers.

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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