Sutton v Nicol - [2021] QCAT 137

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sutton v Nicol [2021] QCAT 137

PARTIES: BARRY SUTTON

(applicant)

v

JOHN NICOL

(respondent)

APPLICATION NO/S:

BDL145-19

MATTER TYPE:

Building matters

DELIVERED ON:

5 May 2021

HEARING DATE:

26 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

1. The application of Barry Sutton is dismissed.

2. The application of John Nicol is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – incorporation of terms by reference – whether practical completion reached - whether parties in breach of contract – whether contract entire contract –variations - assessment of damages

Queensland Building and Construction Commission Act 1991 (Qld), s 77, s 77(3), Schedule 1B s 4, Schedule 2

Belgrove v Eldridge (1954) 90 CLR 613

CG and HG Windsor Pty Ltd v Waterman [2013] QCAT 618
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Grocon Constructions (Qld) Pty Ltd v Juniper Developer (No2) Pty Ltd [2015] QCA 291
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18
Robinson v Harman (1848) 1 Exch 850
Smith v South Wales Switchgear Co Ltd [1978] 1 WLR 165
Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132

Tan Hung Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

By order made 9 July 2019 proceeding BDL145-19 and proceeding BDL172-19 were consolidated. The consolidated proceeding is BDL145-19.
The dispute the subject of these proceedings arises out of performance by the builder Mr Nicol of a contract for the construction of a deck over the top of a swimming pool at Mr Sutton’s property.
Mr Sutton claims relief from payment of the balance contract sum and damages for breach of contract. Mr Nicol claims the balance contract sum and the value of certain variations to the contract. Both parties deny the other’s claim.
The proceeding relates to a domestic building dispute.[1] I note that there has been compliance with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and that this Tribunal has jurisdiction to decide the dispute.[2]
[1]QBCC Act, Schedule 2 (definitions of “building dispute”, “domestic building dispute”, “reviewable domestic work”); Schedule 1B, s 4: Domestic building work includes work associated with the improvement of a home, including the erection or construction of a fixture associated with a home. Associated work includes the erection or construction of a building or fixture associated with the detached dwelling or home.
[2]QBCC Act, s 77, s 77(3).

The Contract

The contract documents before the Tribunal comprise:
(a)Schedule for QBCC level 1 renovation, extension and repair contract dated 29 March 2019;
(b)Plans prepared by Jeffrey Hills & Associates – Drawing No JHA 190051…

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: [2021] QCAT 137
Decision Date

CaseChat Overview and Summary

The matter concerns a dispute between Barry Sutton and John Nicol arising out of the construction of a pool cover at Mr Sutton’s property. Mr Sutton claims relief from payment of the balance contract sum and damages for breach of contract. Mr Nicol claims the balance contract sum and the value of certain variations to the contract. The issues raised by these proceedings are: (a) Is either party in breach of the contract? (b) Which party lawfully terminated the contract? (c) What relief follows from a lawful termination of contract? Mr Sutton is not in breach of his obligations under the contract on the grounds raised by Mr Nicol. Mr Nicol is in breach of the contract. The contract is an entire contract and Mr Nicol is not entitled to recover the sums claimed because he had not completed the works as at the date of termination. The time for payment of the sums claimed had not accrued as at the date of termination. Mr Sutton has lawfully terminated the contract at common law by accepting Mr Nicol’s repudiation of the contract in failing to rectify and complete the work. Mr Sutton’s claim for damages is entirely met by a set-off for the unpaid balance of the contract price. The appropriate orders are to dismiss both Mr Nicol’s claim and Mr Sutton’s claim.

Orders