| CITATION: | Sun Building Services Pty Ltd v Minh & Anor [2015] QCAT 134 |
| PARTIES: | Sun Building Services Pty Ltd (Applicant) |
| v | |
| Tran Tuan Minh Pham Hoa Thi (Respondents) |
| APPLICATION NUMBER: | BDL166-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 16, 17, 18 and 30 July 2014 Written Submissions filed 14 August 2014 and 22 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 28 April 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Sun Building Services Pty Ltd is to pay Tran Tuan Minh and Pham Hoa Thi the sum of $76,982.34 (incl GST) by 4:00pm on 29 May 2015. 2. Tran Tuan Minh and Pham Hoa Thi are to file in the Tribunal two (2) copies and provide to Sun Building Services Pty Ltd one (1) copy of any submissions and evidence as to costs by 4:00pm on 29 May 2015. 3. Sun Building Services Pty Ltd is to file in the Tribunal two (2) copies and provide to Tran Tuan Minh and Pham Hoa Thi one (1) copy of any submissions and evidence as to costs by 4:00pm on 15 June 2015. 4. Tran Tuan Minh and Pham Hoa Thi are to file in the Tribunal two (2) copies and provide to Sun Building Services Pty Ltd one (1) copy of any submissions in reply by 4:00pm on 26 June 2015. 5. Any application for costs will be heard and determined on the papers, unless a party requests an oral hearing, not before 4:00pm on 26 June 2015. |
| CATCHWORDS: | DOMESTIC BUILDING DISPUTE – claim for variations not in writing – whether exceptional circumstances – whether the builder will suffer unreasonable hardship – whether it is not unfair to home owners to allow builder to recover an amount – whether homeowner liable to reimburse QLeave payments – whether interest is payable under the contract or statute DOMESTIC BUILDING DISPUTE – whether homeowners entitled to recover damages for costs of rectification where they refused builder access to rectify – whether general conditions form part of the contract terms – whether failure to allow access disentitles claim for rectification costs – whether failure to mitigate – whether breach entitling damages to partially offset costs of rectification – allegations of fraud Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld), s 74 Domestic Building Contracts Act 2000 (Qld), s 3, s 26, s 27, s 40, s 79, s 80, s 81, s 82, s 84, s 92 Allaro Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286 Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 037 Campbell v Telford & Heida [2013] QCAT 423 Darbishire v Warren [1963] 1 W.L.R. 1067 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 22 Turner Corporations Ltd v Austotel, unreported NSW, BC9402557 |
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- AGLC
- Sun Building Services Pty Ltd v Minh [2015] QCAT 134
- Case
- [2015] QCAT 134
- Decision Date
CaseChat Overview and Summary
In reaching its decision, the Tribunal examined the terms of the contract, the conduct of the parties, and the statutory provisions governing domestic building contracts. It concluded that the homeowners were not liable to reimburse QLeave payments because they had not expressly agreed to do so. The Tribunal found that Sun Building Services was entitled to recover an amount for variations not documented in writing, as the homeowners would not suffer unreasonable hardship if the claim were allowed. However, the Tribunal held that the builder was not entitled to interest under the contract or by statute. The Tribunal also determined that Minh and Thi were not entitled to recover damages for costs of rectification, as their refusal to allow Sun Building Services access to the site constituted a breach of contract that entitled the builder to claim for rectification costs. The Tribunal found no evidence of fraud.
The Tribunal ordered that Sun Building Services must pay Minh and Thi the sum of $76,982.34 inclusive of GST by a specified date. It also set out a timeline for the parties to submit and exchange evidence and submissions regarding costs, with any application for costs to be heard and determined on the papers unless an oral hearing was requested. This case highlights the importance of clear contractual terms and the consequences of breaches in domestic building contracts.
Orders
Orders of the court
1. Sun Building Services Pty Ltd is to pay Tran Tuan Minh and Pham Hoa Thi the sum of $76,982.34 (incl GST) by 4:00pm on 29 May 2015.
2. Tran Tuan Minh and Pham Hoa Thi are to file in the Tribunal two (2) copies and provide to Sun Building Services Pty Ltd one (1) copy of any submissions and evidence as to costs by 4:00pm on 29 May 2015.
3. Sun Building Services Pty Ltd is to file in the Tribunal two (2) copies and provide to Tran Tuan Minh and Pham Hoa Thi one (1) copy of any submissions and evidence as to costs by 4:00pm on 15 June 2015.
4. Tran Tuan Minh and Pham Hoa Thi are to file in the Tribunal two (2) copies and provide to Sun Building Services Pty Ltd one (1) copy of any submissions in reply by 4:00pm on 26 June 2015.
5. Any application for costs will be heard and determined on the papers, unless a party requests an oral hearing, not before 4:00pm on 26 June 2015.
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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