Stuart v Queensland Building and Construction Commission - [2014] QCAT 312

CITATION:

Stuart v Queensland Building and Construction Commission [2014] QCAT 312

PARTIES:	Andrew John Stuart (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR327-12

MATTER TYPE:

General administrative review

HEARING DATE:

25 and 26 February 2014

HEARD AT:

Brisbane

DECISION OF:

Member Walker

DELIVERED ON:

27 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Decision Maker of 12 September 2012 be set aside so far as it determined that the Contract was lawfully terminated by Mr Robert Barton.

2. That the matter be returned to the decision maker to determine whether Mr Stuart was in breach of the Contract as at the date of termination by mutual abandonment namely 4 April 2012.

3. In the event that this issue is determined in the affirmative, whether an insurance claim pursuant to the provisions of the Act is appropriate.

CATCHWORDS:

Application to review decision of Queensland Building Services Authority that contract had been determined by owner – where contract to complete partially constructed home – where no approved plans at the time of entering into contract – where dispute about the manner of construction of part of the works – where Owner purported to terminate contract pursuant to s 90 of the Domestic Building Contracts Act 2000 – where builder sought a review of the decision – where contract mutually abandoned

Domestic Building Contracts Act 2000 (Qld), s 17, s 18, s 33, s 34, s 90
Queensland Civil & Administrative Tribunal Act 2009 (Qld), s 20, s 24

DTR Nominees Pty Ltd v Mona Homes Pty Ltd: (1978) 138 CLR 423
Queensland Building Services Authority v Fox [2005] QDC 129

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Codd of Counsel instructed by Flehr Law

RESPONDENT:

Mr Thompson of Counsel instructed by Holding Redlich Lawyers

REASONS FOR DECISION
Background

This dispute arises out of a contract entered into on or about 27 August 2011 between the applicant (as builder) and Robert and Priscilla Barton.
The contract was for a sum of $262,300 including GST and was effectively a contract to complete a partially constructed house.
At that time, the house was fully framed, the floors were in, the roof was on, the outside of the house however was not fully enclosed but merely had insulation paper on the outside.
At the time of entering into the contract, it is common ground that there were not any approved plans, though there were existing plans that had been approved in respect of the work already done.
It seems that building approval was finally received in or about late September and construction commenced on the date that is subject to disagreement but in any event, in early October 2012. It is notable that this approval did not include the deck area. The deck that had originally been approved did not contain the usual setback from the boundary which apparently was required by the new certifier.
These differences between the original and substituted plans were the subject of a…

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: [2014] QCAT 312
Decision Date

CaseChat Overview and Summary

The matter before the tribunal is an application by the applicant, Andrew John Stuart, to review the decision of the Queensland Building and Construction Commission that the contract had been lawfully terminated by Mr Robert Barton. The applicant seeks to have the decision of the Commission set aside and for the matter to be returned to the Commission to determine whether the applicant was in breach of the contract as at the date of termination by mutual abandonment, namely 4 April 2012. The Commission argues that the applicant's application is beyond the scope of the order of the tribunal and that the applicant is not entitled to have the matter returned to the Commission. The legal issues to be determined are whether the contract had been mutually abandoned by the parties prior to the reported termination on 11 May 2012, whether the owners were precluded from terminating the contract on 11 May 2012 pursuant to s 90(2)(a) of the DBC Act, to what extent the effective completion date was subject to adjustment by reason of operation of s 18 of the DBC Act, and whether the purported termination was the subject of an entitlement by reason of the fact that more than 1.5 times the effective completion period had elapsed on or before the purported termination date.

The tribunal found that the contract had been mutually abandoned by the parties prior to 11 May 2012. The tribunal noted that the exchange of correspondence between the parties and/or their legal representatives indicated that both parties considered that the old contract would not be performed and a new one was the only way forward. The tribunal also noted that there was no apparent communication between the parties from about 12 April 2012 until the date of purported termination being 11 May 2012, which reinforced the view that the contract had been mutually abandoned. Accordingly, the notice issued on 11 May 2012 could not have had the effect of bringing a contract to an end where the parties' actions had already affected that outcome.

The tribunal found that the most appropriate course was for the decision of the decision maker to be set aside pursuant to s 24(1)(c) but that the matter be returned to the decision maker to determine whether at the time of termination, namely 4 April 2012, there were other circumstances that may give rise to an insurance claim and specifically if, at the relevant time the applicant was in breach. The tribunal noted that the decision of McGill SC, DCJ in Queensland Building Services Authority v Fox meant that there will now need to be a determination of whether the applicant was in breach at the time of abandonment. The tribunal also noted that it was a very live issue.

The tribunal set aside the decision of the Commission so far as it determined that the Contract was lawfully terminated by Mr Robert Barton and returned the matter to the Commission to determine whether Mr Stuart was in breach of the Contract as at the date of termination by mutual abandonment, namely 4 April 2012. In the event that this issue is determined in the affirmative, whether an insurance claim pursuant to the provisions of the Act is appropriate.

Orders