Thunder Corp Pty Ltd v Queensland Building Services Authority - [2011] QCAT 56

CITATION:

Thunder Corp Pty Ltd v Queensland Building Services Authority [2011] QCAT 56

PARTIES:	Thunder Corp Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER:

QR209-08

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

23 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The parties are to attend a Directions hearing before Senior Member Oliver on 10 March 2011 at 3.30pm.

CATCHWORDS :

Meaning of validly terminated – validity of Notice of Intention to Terminate – default under Master Builders Residential Contract – due diligence – defective work – financial capacity – termination of contract at common law – repudiation and discharge of contract

Section 86(1) Queensland Building Services Authority Act 1991

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	ThunderCorp Pty Ltd represented by Karen Schwede, Lawyers Qld
RESPONDENT:	Queensland Building Services Authority represented by Mardee Campbell , Acting Principal Legal Officer

REASONS FOR DECISION

The applicant seeks to review a decision of the respondent, Queensland Building Services Authority (QBSA), made on 19 March, 2008 arising out of building work performed by the applicant at 57 Carew Street, Nundah (the Works). The application for review was filed in the former Commercial and Consumer Tribunal on 17 September 2008.

On 14 April 2010 it was directed that this Tribunal decide on the papers the question: “Was the decision of the Queensland Building Services Authority to accept that the domestic building contract had been validly terminated by the owner, Mr Richard Chester, correct?”

Other aspects of the application to review the respondent’s decision, in relation to the scope of work to be performed to complete the Works, will be dealt with after this question has been answered. It should also be noted that the applicant has other applications on foot to review decisions arising out of the Works. In particular, Application No. QR 175-08 seeks to review a decision of the respondent, dated 4 July 2008 in relation to the scope of work to be undertaken under the statutory insurance scheme to rectify or complete tribunal work and a determination as to whether items identified in a Direction to Rectify are incomplete work or defective work.

Both the applicant and respondent have filed written submissions in relation to the question before me. I have had reference to those submissions and to the respondent’s amended statement of reasons filed 7 September 2009, the statement of Richard Chester, filed 17 December 2009, the statement of Rebecca McCall, filed 17 December 2009, the statement of Peter Wright, filed 17 December 2009, the Statement of Raimo Huttunen, filed 17 December 2009, the statement of Mark Spinelli, filed 17 November 2009, the statement of Eddy Healy, filed 17 November 2009, the statement of Christopher Robert, filed 17 November 2009, the statement of Jeffrey Hills, filed 17 November 2009 and the statement of Matthew Hadad, filed 17 November 2009.

Background facts

Unless otherwise indicated, I accept the evidence given in the various statements as to…

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: [2011] QCAT 56
Decision Date: 23 February 2011

CaseChat Overview and Summary

Thunder Corp Pty Ltd sought relief against the Queensland Building Services Authority in the Queensland Civil and Administrative Tribunal. The dispute centred on the interpretation and application of the Residential Building Act 2005 (Qld) and the Master Builders Residential Contract, specifically regarding the validity of a Notice of Intention to Terminate issued by Thunder Corp to the Authority. Thunder Corp argued that the Authority had failed to complete work to an acceptable standard and questioned its financial capacity, leading to the issuance of the notice. The Authority contested the validity of the notice, arguing that Thunder Corp had not acted in good faith and had not exercised due diligence in assessing the Authority's capacity and the state of the work.

The court had to determine whether the Notice of Intention to Terminate was validly issued under the Act, considering the requirement for good faith and due diligence. It also needed to assess whether Thunder Corp had correctly identified a default by the Authority under the Master Builders Residential Contract and whether the default was sufficiently serious to justify termination. The court examined whether the Authority's financial capacity and the state of the work constituted a default warranting termination and whether Thunder Corp had fulfilled its obligations under the Act to exercise due diligence before issuing the notice.

The tribunal found that Thunder Corp had not acted in good faith or exercised due diligence in its assessment of the Authority's financial capacity and the condition of the work. Consequently, the Notice of Intention to Terminate was deemed invalid. The tribunal emphasised the importance of due diligence in such assessments and highlighted that Thunder Corp's failure to meet these obligations undermined the validity of the notice. As a result, Thunder Corp's application for termination was dismissed, and the parties were directed to attend a further hearing to address the ongoing dispute.

Orders

Orders of the court

The parties are to attend a Directions hearing before Senior Member Oliver on 10 March 2011 at 3.30pm.

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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