Thompson Residential Pty Ltd v Tran - [2014] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Thompson Residential Pty Ltd v Tran & Anor [2014] QDC 156

PARTIES:

THOMPSON RESIDENTIAL PTY LTD
(plaintiff)

v

PHONG TRAN and CHI PHAM
(defendants)

FILE NO/S:

BD 1012/12

DIVISION:

PROCEEDING:

Determination of separate question before trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Submissions in writing

JUDGE:

McGill SC DCJ

ORDER:

Order that the following question be determined separately in advance of the matters in issue at the trial, namely whether s 84 of the Domestic Building Contracts Act 2000 excludes any liability of the defendants for the claim in restitution brought by the plaintiff in this court in respect of variation works. Order that that question be answered “yes”. Order that paragraph 20, and such parts of the second paragraph 20 and paragraphs 21-23 as relate to variation works, be struck out of the plaintiff’s statement of claim.

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – Statutory regulation – variations – requirements of documentation of variations to regulated contract – no entitlement to claim in restitution outside statute

Domestic Building Contracts Act 2000 s 84.

Allaro Homes Cairns Pty Ltd v O’Reilly [2012] QCA 286 – considered.
Baque v River Gum Homes Pty Ltd [2013] QCATA 24 – cited.
Campbell v Fields [2000] QDC 206 – considered.
CMF Projects P/L v Riggall & Anor [2014] QDC 90 – followed.
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 – cited.
Gemini Nominees Pty Ltd v Queensland Property Partners Pty Ltd [2008] 1 Qd R 139 – considered.
Lee v NSW Crime Commission (2013) 87 ALJR 1082 – cited.
Marshall v Marshall [1999] 1 Qd R 173 – cited.
Miccon Hire Pty Ltd (in liquidation) v Birla Mt Gordon Pty Ltd [2013] QSC 139 – considered.
Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221 – cited.
Poiner v Quirk [2007] QDC 299 – cited.
Seveastopoulos v Spanos [1991] 2 VR 1974 – followed.
Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196 – considered.

COUNSEL:

S McNeil for the plaintiff

G I Thomson for the defendants

SOLICITORS:

Holding Redlich for the plaintiff

Hemming & Hart for the defendants

By a claim and statement of claim filed 15 March 2012 the plaintiff sought $579,801.88 in restitution together with interest by statute from the defendants. The pleading alleged that it entered into a contract with the defendants for the construction by it of a dwelling house for a particular contract price, which contract the defendants wrongfully repudiated on 19 December 2011at a time when the work under the contract was almost complete, by purporting to terminate the contract. The plaintiff claimed reasonable compensation for the construction of the works the subject of the contract, together with an amount of $286,533.89 for variations in the contract work at the request of the defendants, as alleged in paragraph 20 of the statement of claim, and particularised in more detail in annexure B thereto.

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] QDC 156
Decision Date: 22 July 2014

CaseChat Overview and Summary

The case of Thompson Residential Pty Ltd v Tran involves a dispute arising from a domestic building contract, with the plaintiff, Thompson Residential, claiming restitution for variation works carried out by the defendant, Tran. The matter was heard in the Supreme Court of New South Wales. The central issue in this case revolves around the statutory requirements for documenting variations to a regulated building contract under the Domestic Building Contracts Act 2000. Specifically, the court had to determine whether section 84 of the Act precluded the plaintiff from seeking restitution outside the statutory framework.

The court's task was to interpret section 84 of the Domestic Building Contracts Act 2000 and ascertain its effect on the plaintiff's claim in restitution. The plaintiff argued that despite the statutory requirements for documenting variations, it was still entitled to claim in restitution for the additional works carried out. The court needed to decide if the statutory provisions concerning variations excluded any potential liability of the defendant for the restitution claim. The court held that section 84 indeed precluded the plaintiff from claiming in restitution outside the statutory framework, as the statutory scheme provided the exclusive remedy for disputes regarding variation works.

In its judgment, the court ruled that section 84 of the Domestic Building Contracts Act 2000 did exclude any liability of the defendants for the claim in restitution brought by the plaintiff. Consequently, the court ordered that the question of whether section 84 precluded the plaintiff's restitution claim be determined separately in advance of the trial. The court further directed that this question be answered in the affirmative. As a result, specific parts of the plaintiff's statement of claim, relating to the variation works, were to be struck out. This ruling clarified the statutory limitations on restitution claims and emphasised the importance of adhering to the legislative framework governing domestic building contracts.

Orders

Orders of the court

Order that the following question be determined separately in advance of the matters in issue at the trial, namely whether s 84 of the Domestic Building Contracts Act 2000 excludes any liability of the defendants for the claim in restitution brought by the plaintiff in this court in respect of variation works. Order that that question be answered “yes”. Order that paragraph 20, and such parts of the second paragraph 20 and paragraphs 21-23 as relate to variation works, be struck out of the plaintiff’s statement of claim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thompson Residential Pty Ltd v Tran & Anor [2014] QDC 156
PARTIES:	THOMPSON RESIDENTIAL PTY LTD (plaintiff) v PHONG TRAN and CHI PHAM (defendants)
FILE NO/S:	BD 1012/12
DIVISION:
PROCEEDING:	Determination of separate question before trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	Submissions in writing
JUDGE:	McGill SC DCJ
ORDER:	Order that the following question be determined separately in advance of the matters in issue at the trial, namely whether s 84 of the Domestic Building Contracts Act 2000 excludes any liability of the defendants for the claim in restitution brought by the plaintiff in this court in respect of variation works. Order that that question be answered “yes”. Order that paragraph 20, and such parts of the second paragraph 20 and paragraphs 21-23 as relate to variation works, be struck out of the plaintiff’s statement of claim.
CATCHWORDS:	BUILDING AND ENGINEERING CONTRACTS – Statutory regulation – variations – requirements of documentation of variations to regulated contract – no entitlement to claim in restitution outside statute Domestic Building Contracts Act 2000 s 84. Allaro Homes Cairns Pty Ltd v O’Reilly [2012] QCA 286 – considered. Baque v River Gum Homes Pty Ltd [2013] QCATA 24 – cited. Campbell v Fields [2000] QDC 206 – considered. CMF Projects P/L v Riggall & Anor [2014] QDC 90 – followed. Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 – cited. Gemini Nominees Pty Ltd v Queensland Property Partners Pty Ltd [2008] 1 Qd R 139 – considered. Lee v NSW Crime Commission (2013) 87 ALJR 1082 – cited. Marshall v Marshall [1999] 1 Qd R 173 – cited. Miccon Hire Pty Ltd (in liquidation) v Birla Mt Gordon Pty Ltd [2013] QSC 139 – considered. Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221 – cited. Poiner v Quirk [2007] QDC 299 – cited. Seveastopoulos v Spanos [1991] 2 VR 1974 – followed. Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196 – considered.
COUNSEL:	S McNeil for the plaintiff G I Thomson for the defendants
SOLICITORS:	Holding Redlich for the plaintiff Hemming & Hart for the defendants