Stuart Homes and Renovations v Denton
[2011] QCAT 526
•11 November 2011
| CITATION: | Stuart Homes and Renovations v Denton [2011] QCAT 526 |
| PARTIES: | Stuart Homes and Renovations ABN 44985274541 (Applicant) |
| v | |
| Paul Denton Robyn Denton (Respondents) |
| APPLICATION NUMBER: | BDL264-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 16 September 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 11 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the respondents pay to the applicant the sum of $8,207.19 within 28 days of these orders; 2. The respondents’ counter-claim is dismissed; 3. That the applicant file and serve any material it relies upon and submissions it wishes to make in relation to costs and interest by 4pm on 28 November 2011; 4. That the respondents file and serve any material and submissions in reply by 4pm on 12 December 2011; 5. That the claims for interest and costs be decided on the papers not before 14 December 2011. |
| CATCHWORDS: | Building dispute – whether commercial or domestic building contract – whether written contract contains the agreement between the parties – whether contract for shed or for habitable dwelling Queensland Building Services Authority Act 1991, s 77 Land Title Act 1994, s 127 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr MP Williams of Counsel, instructed by Garland Waddington Solicitors |
| RESPONDENT: | Ms K McGuikan, Solicitor of Bell Legal Group |
REASONS FOR DECISION
Background
On 3 July 2009, the parties signed a Master Builders Commercial Building Contract. A description and scope of works is set out in a proposal attached to it prepared by Stuart Homes and Renovations dated 3 June 2009. The proposal is for a colour bond shed at the property of Mr and Mrs Denton at East Deep Creek Road, Gympie. The contract price is specified as $80,839.84. At all relevant times, the property was zoned rural.
The proposal sets out both included and excluded items. The included items are a slab, the shed frame, roof and walls, windows and doors, fly and security screens, plumbing and drainage, electrical fit-off, and water tanks, as well as a soil test. Plumbing and electrical works are further specified. Plumbing includes a solar hot water system, a septic tank, and trenches to suit ‘shed and proposed dwelling’. The electrical work includes solar hot water connection, 2 sensor spots, 18 double GPOs, and ‘12 flouros’.
Some items are specified as not included, namely internal partitioning and sheeting, water proofing, tiling and cabinetry and site cut.
Development approval was granted to Stuart Homes by Gympie Regional Council on 17 September 2009 for ‘Building Work-Class 10a’ for a building classified as a ‘Shed’. The plans submitted include a plan showing the siting of a shed and a proposed future dwelling. The same plan was submitted to the Council by the Dentons, although Mr Denton denies seeing the plans until the construction was finished, when they signed an application seeking a boundary relaxation for a siting variation for a ‘Class 10a Shed & Class 1a Dwelling’ which appears to have been received by the Gympie Regional Council on 3 July 2009 and approved by the Council on 20 July 2009.[1] The documentation accompanying that application includes a handwritten notation to the effect of ‘we are building our dwellings’. Consistently, the Compliance Permit for Plumbing and Drainage describes the work as ‘Plumbing for Class 10A Shed- Septic- 5 Fixtures’.
[1] Exhibit 5.
Commencement and completion dates were not specified in the contract. Final building approval was obtained from Gympie Regional Council for a shed on 29 October 2009. Robyn Denton signed a certificate said to be on behalf of herself and her husband acknowledging that practical completion had been achieved which is dated 4 November 2009.
There were a number of variations to the contract which are documented on variation forms signed by both parties and included in the evidence. These include a variation dated 29 September 2009, to deduct the ‘living approval fee’ from the contract; and a variation signed by the Dentons on 7 October 2009, to the effect that the plumber will donate an electric hot water system for the shed use and the solar hot water system will be stored in the shed by the owners.
The Claim and Counter-Claim
Stuart Homes say that in total, including the variations, the final amount owing was $83,627.11, of which $75,419.92 has been paid. Stuart Homes commenced these proceedings seeking orders for the payment of the balance of $8,207.19, interest and costs. There is no dispute that $75,419.92 has been paid.
The Dentons have made a counter-claim for a total of $42,706.92. Essentially, it appears they contend that the contract is not reflected in the written documents and that there are oral terms to the contract which were not reduced to writing. They say that Craig Stuart of Stuart Homes knew at all times that they intended to live permanently in the construction that they contracted for, and that it was therefore subject to the Domestic Building Contracts Act 2000 (DBC Act). They say, in essence, that Mr Stuart was obliged to build the construction to a standard that it could be approved as a class 1a liveable dwelling and that they are entitled to recover from him the costs of doing all necessary works to turn it into a dwelling and the costs of making the necessary council application to do so. The total claim in this regard is for $33,822.95.
The Dentons also claim what are described as consequential costs incurred, namely interest on the moneys paid to Stuart Homes from the date they paid the deposit on 10 July 2009 until construction was completed on 4 November 2009 of $3,685.97, as well as rent paid by them during this same period of $4,700.
[10] Finally, the Dentons seek the removal of a caveat lodged against the property by Stuart Homes.
[11] I make the observation that the Dentons’ amended response and counter-claim, which was relied upon by them at hearing, contains a variety of allegations and assertions which were not addressed in their evidence. Although the tribunal is not bound by the rules of evidence, the assertions in the response document are bare assertions unsigned by the Dentons, being signed only by an unnamed person on behalf of Bell Legal Group. The document appears to be a type of pleading. It is not evidence from any person and apart from recognising that it identifies the counter-claim made by the Dentons, no weight is, or can be, attached to the assertions contained in it.
Factual Disputes
The discussions between the parties leading up to the written contract
[12] There is some dispute about the extent of the relationship between the parties prior to the contract being entered into and the extent of discussions leading up to the execution of the contract.
[13] It is clear that the parties knew one another. Mr Denton is a tiler by trade, and he did some work for Stuart Homes from late 2008 when the Dentons moved to Gympie. Mrs Denton assists her husband in his work. According to the Dentons, Mr Stuart knew at all times that the Dentons were in difficult financial circumstances, and could not afford to build anything more than the shed. They say that, short of coming into a windfall, it was never their intention to construct a future dwelling. They say, that Mr Stuart knew they intended the shed to be their permanent home and that they intended to contract for a building in which they were entitled to live permanently. Their evidence is to the effect that the discussions with Mr Stuart about their circumstances and their requirements were extensive. They also say that there was a social relationship between them.
[14] Mr Stuart acknowledges knowing both Mr and Mrs Denton through his work relationship with them. He denies that he was aware that the Dentons intended to reside permanently in the shed. He says that as far as he was aware, he was to build a shed and was never aware that the proposed dwelling was not to proceed. He acknowledges that he was aware they intended to reside in the shed temporarily, and that was why he provided for the costs of the permit to seek Council approval to do so in the proposal. The contract also provided for infrastructure, such as the solar hot water system and septic sufficient to service the proposed future dwelling. He said that if he knew they intended to reside in the construction permanently, he would not have suggested a shed. Also, he said, in effect that he knew that if he lodged false documents, he was at risk of losing his licence and he would not be prepared to do it.
[15] He says he understood that the Dentons and their bank manager came up with a plan whereby they hoped to increase their equity in the property by having a shed on it, and that this would give them leverage to borrow to build the house on the property. The Dentons say that this is not correct and that it was always their intention to build a home based on the finance they could borrow, of about $80,000.
The Proposal and the Contract
[16] Mr Stuart says he gave the proposal, which is attached to the contract, to the Dentons at about the time it is dated. He says he then met them on 3 July 2009 with the contract, after they had told him that they accepted the proposal and that finance had been approved by the Dentons’ bank. Consistently, the written contract notes the date for loan approval as 3 July 2009, the date the contract was signed.
[17] The Dentons claim that they placed their trust in Mr Stuart to build what they required. At the hearing, Mr Denton said that he could not recall whether he had seen the proposal dated 3 June 2009 attached to the contract prior to the day that they executed the contract. However, in his written statement filed in the tribunal, he said that he received the proposal on about 3 June. Mr Denton says that he did not read the contract presented by Mr Stuart on 3 July 2009, essentially because he trusted Mr Stuart. Therefore, he did not realise it was a commercial building contract.
[18] He says that the parties met at a coffee shop briefly, and Mr Stuart was in a hurry, so he and his wife just signed. He could not recall if they had a coffee, as the meeting was so brief. As I understand his evidence, he said variously he looked mainly at the proposal, because from that he knew what work he had to do in the shed, but also that he really only looked at the total figure. He did not see his wife look at the contract and did not know if she had read it.
[19] At the hearing, Mrs Denton said that she read the contract, but that she also could not recall if she had seen the proposal before 3 July 2009. In her written statement filed in the tribunal she says that she had it beforehand, discussed it and argued about it with Mr Denton, but later told Mr Stuart that they accepted the quote. She recalled that the parties were speaking for long enough to have coffee at the time of signing the contract. She also could not recall lodging the application for a boundary relaxation which contained a plan showing the future proposed house.
The Rough Plan
[20] There is a dispute about which plan was given to Mr Stuart to prepare the proposal which was subsequently attached to the contract. In particular whether it was a bare perimeter plan for a shed showing windows and doors as contended by Mr Stuart[2] or a detailed plan showing rooms, location of lights and powerpoints, as well as windows and doors, as contended by the Dentons.[3] Mr Stuart acknowledges that after the contract had been entered into he received the detailed plan from the Dentons.
[2] Exhibit 1.
[3] Exhibit 2.
[21] The Dentons rely upon some documents and statements from Geoff Yelaska and Alexander Kroenert from Mecano Sheds which are attached to a witness statement of Mr Denton. Mr Yelaska and Mr Kroenert were not made available for cross-examination at the hearing. Alexander Kroenert says that he based the plans on information provided by Craig Stuart which is labelled ‘att Craig Stuart’ and which appeared to be a copy of the drawing Exhibit 2 which the Dentons say was the basis for the proposal. He says it ‘would have been provided to’ him before he completed the design plan on 6 October 2009. Geoff Yelaska is the managing director of Mecano Sheds who arranged for documents from the Mecano Sheds file to be provided to the Dentons’ lawyers. During cross-examination, Mr Denton conceded that he knows Mr Yelaska personally and has done work for him at his home.
Delays in commencement of construction
[22] Mrs Denton says that the deposit of $20,209.96 was paid on 10 July 2009, but that construction did not commence for some months, and that this caused the Dentons financial hardship as they were paying rent, as well as interest on the progress payment.
[23] She says that when she asked Mr Stuart about the delays, he told her that Mecano Sheds and the Council approvals were responsible. However, she says that Mr Yelaska from Mecano Sheds had since informed the Dentons that this was not the case. A letter from Mr Yelaska states that a deposit for the shed was paid in about June 2009, but despite Mecano Sheds following up with Stuart Homes, the balance of the payment for the shed payable a week before delivery, was not finally received until September.
[24] Mr Stuart says essentially that because the Dentons said they could not pay for any of the incidentals along the way, nothing could begin until after the deposit was received from them. Once received, a deposit was paid for the shed from the supplier, Mecano Sheds, and a development application was made. This is broadly consistent with Mr Yelaska’s letter, although Mr Yelaska’s assertion about the date the deposit was paid is not consistent with either party’s version of events.
[25] Construction could not begin until approval was granted. Consistently, again with Mr Stuart’s assertions, development approval was not granted until 17 September 2009. The application for boundary relaxation which was required in relation to siting of the construction was lodged and on 20 July 2009 preliminary approval was given subject to the issue of a development approval.
Permit to reside in the shed temporarily
[26] Mr Stuart included in his costings on the proposal, a fee to apply to Council for a permit for the Dentons to reside in the shed temporarily, until the proposed house was built. However, he says that when he attempted to make the application, he was informed by the Council that only the land owner could do so. He says that he explained this to the Dentons, and did a variation on 29 September 2009 to deduct the costs of applying for the permit from the contract amount. The Dentons acknowledge this variation, but essentially say they did not understand. They say that according to their enquiries the application could have been lodged by Mr Stuart.
[27] After the Council did the final inspection of the shed and granted it approval as a shed, the Dentons were apparently contacted by Council as it was clear to the inspector that they were living in the shed. They said that they lived in fear that they would be evicted because they did not have a permit to reside in the shed temporarily, but on the evidence did not apply for a permit. They blamed Mr Stuart for this, as they say, he was to have provided them with a dwelling they were entitled to live in.
[28] In December 2010, the Dentons received Council pre-approval for the reclassification of the existing class 10a shed to 1a dwelling.
The Solar Hot Water System (HWS), the Econocycle and the Roof Insulation
[29] There was an allegation by the Dentons that the solar HWS was to be mounted on the roof of the shed. Mr Stuart said that this was never the intention as the shed roof was not adequate to hold it. Mr Stuart says that a roof-style HWS was to be provided which would eventually go on the roof of the house when built. The Dentons’ claim includes the cost of a stand to hold the HWS.
[30] As I understand the evidence, the solar HWS has not been installed and remains in a box at the premises. During construction, the Dentons were provided with an electric HWS, supplied free of charge by the plumber, for use in the shed. Mr Stuart says that this arrangement was agreed to by the Dentons, rather than building a stand to hold the HWS, and that they were later to install the solar HWS at the future proposed dwelling rather than build a stand to house the HWS temporarily and move it later to the house roof. This is consistent with the written variation signed by the Dentons on 7 October 2009.
[31] The Dentons say it was to have been installed on the shed roof, but the shed roof would not support it. Part of the counter-claim is for the costs of installing it.
[32] There is also an allegation by the Dentons that an aerated econocycle waste water treatment system, not a septic system, was to be installed. There was evidence from the Dentons about information being provided to Mr Stuart about this system. Mr Stuart had no recollection of receiving material from the Dentons about the econocycle. The proposal prepared by Stuart Homes and accepted by the Dentons refers to the supply of a septic system.
[33] Further, the Dentons assert that roof insulation should have been included for a habitable dwelling, but that this was included only as a variation. Mr Stuart says this was because it was not intended to be a habitable dwelling.
The Monies Claimed
[34] Mr Denton acknowledged at hearing that the work done by Stuart Homes was worth about $80,000. He says that monies were still owing to Stuart Homes as they had run out of money due to all of the variations. These, however, were agreed variations, acknowledged in writing by both parties.
[35] There was no evidence presented by the Dentons about monies spent by them to make application to the local authority for a reclassification of the shed to a class 1a dwelling and to undertake any work to achieve conditional approval for this. A schedule of amounts claimed and copies of some invoices are attached to their amended response and counter-claim which was relied upon at hearing.
Credit of the witnesses and findings of the fact
[36] Mr Denton does not appear to be a sophisticated person. However, he has been involved in the building industry for over 30 years as a tiler and it is reasonable to infer, and I do draw the inference, that during that period he has developed some knowledge and gained some experience of that industry and the terminology used by those participating in it. I do not accept that he did not understand what was to be provided according to the terms of the written contract.
[37] His oral evidence at the hearing contradicted some aspects of his written statement and the documentary evidence. Also, his inability under cross-examination to recall information which might be considered unfavourable to his claims, while being able to recall in apparent detail anything which might support his case is remarkable. His evidence was also inconsistent with Mrs Denton’s in some respects.
[38] Mrs Denton appeared more thoughtful in her oral evidence, although she also contradicted some aspects of her written statement and the documentary evidence. She married Mr Denton in 2007 and does not, on the evidence, have his long-term experience in the building industry. She may have naively misunderstood to some extent the significance of the written contract and the limitations of the construction it entailed.
[39] However, she said, as did Mr Denton, that she could not recall if she and Mr Denton had seen the proposal prior to 3 July when they signed the contract attaching it. This seems improbable. A contract is unlikely to be prepared until a builder has been told that his quote was accepted, as Mr Stuart suggests was the case. It is also contradicted by the written statements of both of the Dentons. The written contract includes a date for loan approval of 3 July 2009, the date that the contract was executed. Again this supports Mr Stuart’s version of events. His evidence was that he had been told by the Dentons before the contract was prepared that finance had been approved. If this had not been the case, loan approval date could not have been the same day as the contract.
[40] The Dentons assert Stuart Homes delayed the commencement of construction after taking their deposit. However, the development approvals have been, on the documentary evidence, promptly sought after the contract was signed, consistent with Mr Stuart’s version of events. It is clear on either version that construction commenced shortly after the approval was in place. It is also apparent that a deposit was paid to Mecano Sheds at about the time the deposit was paid. Again, the documentary evidence does not support the Dentons’ version of events.
[41] The Dentons’ assertions about the requirement for an econocycle are also contradicted by the written contract itself, which provides for a septic system. Their assertions about the solar HWS are contradicted by the written variation.
[42] As a result, I could not accept the evidence of Mr and Mrs Denton about the formation of the contract or subsequent events as reliable. I formed the view that they were unreliable witnesses.
[43] Mr Denton’s mother, Joan Denton, also gave evidence. She gave a brief written statement and was cross-examined. However, she had some apparent memory problems, and struggled to recall her current address, and other aspects of the information set out in her statement. Therefore, Mrs Joan Denton’s evidence is not considered helpful or reliable.
[44] It is apparent from the statement of Mr Yelaska that particular identified documents from the Mecano Sheds file, rather than the entire file, have been provided. Also, whether or not Exhibit 2 was provided by October 2009, does not assist me to determine what had been provided in July 2009 by the Dentons to Mr Stuart, who concedes that he had the detailed plan by some time in October. Additionally, neither Mr Yelaska nor Mr Kroenert were made available for cross-examination. For these reasons, I have placed no weight on the statements provided by Mr Yelaska and Mr Kroenert.
[45] Mr Stuart gave his evidence in a forthright and apparently truthful manner. He was able to explain how and when he recalled various events occurred, and why he understood the Dentons intended to build a shed only at the time. The documentary evidence supports his version of events in important respects. Where his evidence contradicts the Dentons’ evidence, I accept it and reject the Dentons’ evidence.
[46] Therefore, I find on the balance of probabilities that Mr Stuart was not aware that the Dentons intended to reside permanently in the shed. I accept that he had only the perimeter plan at the time he prepared the proposal which later substantially defined the scope of works. I am satisfied that the Dentons had the proposal from about 3 June and then subsequently advised Mr Stuart that they accepted the quote and had finance approval. Mr Stuart then prepared the contract which was executed on 3 July. Further, I am satisfied that the written contract does accurately record the agreement between the parties. After the deposit was paid, council approvals were sought and the deposit paid to Mecano Sheds.
[47] It follows that I am satisfied that the contract was for the construction of a shed only, not a liveable home or a dwelling and was not intended for permanent habitation or occupation, with the inclusions and exclusions specified in the proposal and incorporating the variations documented and signed by both parties. Therefore, I do not accept that an econocycle was to be included: a septic system was included. Nor do I accept that the HWS was to have been installed on the roof of the shed.
[48] I accept that the contract price was $80,839.84 but that after the variations the final amount owing under the contract and variations was $83,627.11. Further, I accept that payments totalling $75,419.92 have been paid by the Dentons. Finally, I accept that the work specified in the contract and variations was completed.
Discussion and Decision
[49] The Dentons submit that a domestic building contract rather than a commercial building contract was appropriate. They argue that it was a domestic building contract and that therefore compliance with the Domestic Building Contracts Act 2000 (the DBC Act) was required. They say that they were required to pay a larger deposit than the DBC Act allowed. They also rely upon the warranties implied in the DBC Act, in particular a warranty in certain circumstances that a detached dwelling or home will be suitable for occupation when the work is finished.[4] This warranty is implied only when the contract work consists of construction of a detached dwelling to a stage suitable for occupation or is to renovate, alter, extend or improve or repair a home to a stage suitable for occupation.
[4] DBC Act, s 46.
[50] Mr Stuart says that it was not domestic building contract under the DBC Act because section 13(3) specifically provides that a home does not include premises not intended to be used for permanent habitation. In any event, he submits that he is entitled to recover the monies outstanding even if he was required to comply with it. He relies on section 92 which provides that unless a contrary intention is expressed in the DBC Act, the contract is not illegal, void or unenforceable because of non-compliance, even if the DBC Act applied. In the alternative, he argues that he is entitled to recover the amount sought on the basis of a quantum meruit relying on the case of Pavey & Matthews Pty Ltd v Paul.[5]
[5] (1987) 162 CLR 221.
[51] When the DBC Act applies, it imposes a variety of requirements regarding the contract. For example, it provides for certain contracts to be regulated contracts, if the price is more than the prescribed amount.[6] Regulated contracts are required to be in writing[7] and signed[8] as well as complying with certain other formal requirements.[9] Certain warranties are implied in all circumstances, and some in particular contracts.[10] Variations must be in writing and signed.[11]
[6] DBC Act, s 9, and schedule 2.
[7] DBC Act, s 26.
[8] DBC Act, s 30.
[9] DBC Act, ss 27, 28, 29.
[10] Part 4.
[11] DBC Act, ss 79, 82.
[52] The DBC Act in section 7 defines a domestic building contract to include a contract to carry out domestic building work; or essentially, a construction management contract for domestic building work. Domestic building work is defined in section 8. Sub-sections 8(1) and 8(3) provide that domestic building work includes the construction of a detached dwelling and the renovation, alteration or improvement of a home and associated work. Under sub-section 8(5), for the erection or construction of a detached dwelling, the definition of domestic building work is extended to include the provision of services or facilities to a dwelling or the property on which a dwelling is or is to be situated.
[53] Sub-section 8(8) provides that domestic building work does not include excluded building work. Section 8(9) provides for a detached dwelling to include a reference to any part of a detached dwelling and for reference to a home to include reference to any part of a home. Excluded building work is defined[12] to include, amongst other things, work relating to a farm building or proposed farm building and a building intended to be used for business purposes only.
[12] DBC Act, schedule 2.
[54] Section 13 defines the meaning of home. It specifically excludes premises not intended to be used for permanent habitation. The warranties implied into domestic building contracts are provided for in Part 4. Some are implied into all such contracts. The warranty relied upon by the Dentons in section 46 that the premises will be suitable for occupation when the work is finished, are implied only in the specified circumstances identified in the section, that is where the contract was for the construction of a detached dwelling to a stage suitable for occupation or work to renovate, alter, extend, improve or repair a home to a stage suitable for occupation.
[55] If the DBC Act applies, section 92 of the DBC Act provides that unless a contrary intention appears in the DBC Act, non-compliance will not render the contract illegal, void or unenforceable. For example, section 30 provides that a regulated contract only has effect if it is signed by the building contractor and the building owner. By virtue of section 93, a domestic building contract is void to the extent that it is contrary to the DBC Act, or purports to annul, exclude or change a provision of the Act.
[56] The Dentons submitted that the amount of deposit required was greater than that provided for in the DBC Act.[13] However, although non-compliance with that section may render a building contractor liable for a penalty, it does not render the contract illegal void or unenforceable.
[13] DBC Act, s 64.
[57] I have found as a fact that the contract was for a shed and that it was not intended for permanent habitation or occupation. Therefore, the implied warranty under the DBC Act that the premises will be suitable for occupation will not apply, even if the DBC Act applies.
[58] I do not consider that the shed falls within the definition of domestic building work. The contract was not for the construction of a detached dwelling and it was not for the renovation, alteration or extension of a home or associated work. It was for a shed which was not intended for permanent habitation or occupation. It does not fall within sub-section 8(5) because, although some services were to be provided to the property, that was not in the context of the erection or construction of a detached dwelling.
[59] Therefore, the requirements of the DBC Act did not apply to the contract.
The Claim
[60] The work under the commercial building contract and variations was completed. The total price was $83,627.11. Only $75,419.92 has been paid. I am satisfied that the Dentons owe Stuart Homes the balance of $8,207.19.
[61] A claim for interest and costs is also made by Stuart Homes. Submissions have not been made in respect of these claims.
The Counter-Claim
[62] Even if I had accepted that there was a collateral oral agreement which formed part of the contract as asserted by the Dentons, which I have not, the Dentons do not assert oral terms which could provide any possible basis for the claim for interest of $3,685.97 and refund of rental of $4,700. There are no terms in the written contract which support such a claim. No other basis is contended by the Dentons upon which the claim could be grounded. This aspect of the Dentons’ counter-claim must fail.
[63] The rest of the counter-claim for $33,822.95, is apparently for the cost of turning the shed into a habitable dwelling and the associated local authority application however they are characterised. Evidence was not presented to support the amounts claimed as set out in the schedule. In any event, I have found that Stuart Homes was to provide a shed only under the contract between the parties and it has complied with the contract and variations. The warranty relied upon by the Dentons in the DBC Act does not apply. Therefore, there is no basis upon which Stuart Homes was responsible to provide, or as claimed, to meet the costs of providing or bringing the construction up to the standard of a habitable dwelling. The counter-claim must fail.
[64] Neither party made submissions at the hearing about the application by the Dentons for removal of the caveat. Whereas the tribunal has broad powers to make orders to resolve building disputes under the Queensland Building Services Authority Act 1991,[14] the Land Title Act 1994 provides for caveats. Section 127 provides for a caveatee to apply to the Supreme Court for an order seeking the removal of a caveat. The tribunal does not have jurisdiction to make the orders sought regarding the caveat.
[14] Queensland Building Services Authority Act 1991, s 77.
[65] I make orders for the payment by the Dentons to Stuart Homes within 28 days of the sum of $8,207.19. The counter-claim made by the Dentons is dismissed.
[66] I also direct that any material relied upon and submissions regarding costs and interests sought by Stuart Homes be filed, and that the Dentons file material and submissions in reply. These claims can then be dealt with on the papers.
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