THUMOLANO and AFRA CONSTRUCTION PTY LTD - [2013] WASAT 17

THUMOLANO and AFRA CONSTRUCTION PTY LTD [2013] WASAT 17

Last Update: 11/02/2013

THUMOLANO and AFRA CONSTRUCTION PTY LTD [2013] WASAT 17
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 17
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:955/2012	Heard:	15 AUGUST AND 28 SEPTEMBER 2012 LAST DOCUMENTS 16 JANUARY 2013
Coram:	MS L WARD (MEMBER)	Delivered:	04/02/2013
No of Pages:	20	Judgment Part:	1 of 1
Result:	Application successful
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	LESEGO THUMOLANO AFRA CONSTRUCTION PTY LTD
Catchwords:	Home building work contract Commencement date Completion date Delay Valid extension of time Practical completion Damages for delay in completion
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 41(2)(d), s 43(1) Home Building Contracts Act 1991 (WA), s 11(1), s 17, Pt 2, Sch 1 Interpretation Act 1984 (WA), s 62(1)
Case References:	BGC Residential Pty Ltd and Parker [2006] WASAT 281 Hadley v Baxendale (1854) 9 Exch 341; (1854) 156 ER 145
Orders:	On the application heard on 15 August and 28 September 2012 before Member Lisa Ward, it is on 4 February 2013 ordered that: 1. By close of business on 28 February 2013 the builder shall pay the owner $11,731.23.
Summary:	The owner and builder signed a standard, HIA 'HBCA Lump Sum Building Contract Form 16G July 2007' on 20 November 2010. The contract was for a single storey dwelling in a strata development. The owner became the registered proprietor of the land on which the unit was built on 19 May 2011. Under the contract, the home was to have been completed within eight months. The home took at least five months longer than anticipated by the owner. The builder says that the delays arose because the owner's unit was part of a 16 unit development and that the building of all of the units and the surrounding site works were all 'interconnected' and had to be completed together. However, the builder could not take the Tribunal to anything in the contract which linked the building of the owner's individual unit to the building of the 15 other units or to the site works required on the common property. The owner's contract is a stand alone contract to build his individual unit. The Tribunal found that the contractual date to commence the works was 3 June 2012, when the building licence issued. The Tribunal also found that there was no valid extension of time for completion under the contract, as no notices were issued by the builder relating to events which occurred within the contractual completion time. The Tribunal also found that practical completion occurred on 11 September 2012. Therefore, there was a delay in completion between the contractual date for completion, 2 February 2012, and 11 September 2012. Applying the normal Hadley v Baxendale [1854] EWHC Exch J70 rules of remoteness, the Tribunal found the the owner was entitled…

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: [2013] WASAT 17
Decision Date: 4 FEBRUARY 2013

CaseChat Overview and Summary

The plaintiffs, Thumolano and Afra Construction Pty Ltd, engaged in a home building contract with a specified commencement and completion date. The defendants allegedly delayed the completion of the project, prompting the plaintiffs to seek damages for the delay. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the delay was justified under the terms of the contract, and if so, whether there were valid grounds for extending the completion date. Additionally, the court had to determine whether the project could be deemed practically complete despite the delays, and if the plaintiffs were entitled to any damages.

The court examined the contractual terms concerning the commencement and completion dates, and whether the delay was due to circumstances within the control of the plaintiffs. It was noted that the contract allowed for extensions of time in certain situations, and the court assessed if the defendants had acted in accordance with these provisions. The plaintiffs argued that the delays were not justified and that the defendants had failed to complete the project within the agreed timeframe. The defendants contended that the delays were due to unforeseen circumstances and that they had provided adequate notice of the need for an extension. The court considered whether the plaintiffs had suffered any damages as a result of the delay.

After reviewing the evidence and the terms of the contract, the court concluded that the defendants had not provided sufficient justification for the delay. The court found that the project was not practically complete and that the plaintiffs were entitled to damages for the delay in completion. The court determined that the application for damages was successful, and the plaintiffs were awarded the appropriate amount. This decision serves as a reminder of the importance of adhering to contractual obligations and the consequences of failing to do so.

Orders

Orders of the court

Application successful

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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