Tom Builder Pty Ltd v Duong - [2013] QCAT 366

CITATION:

Tom Builder Pty Ltd v Duong [2013] QCAT 366

PARTIES:	Tom Builder Pty Ltd (Applicant)
v
Van Quan Duong (Respondent)

APPLICATION NUMBER:

BDL070-11

MATTER TYPE:

Building matters

HEARING DATE:

3 June 2013

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

21 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Van Quan Duong’s counter-claim is dismissed;
Any party making application for costs must file and serve the material and submissions it relies upon by 4pm on 12 July 2013;
The other party must file and serve any material and submissions about costs in response by 4pm on 26 July 2013;
That any application for costs be determined on the papers without an oral hearing not before 29 July 2013.

CATCHWORDS:

BUILDING CONTRACT DISPUTE- where home owner claims damages for demolition and related works, costs of electricity connection and return of deposit-where contract term regarding obligation to obtain building approval varied by agreement where implied term to vary completion date–where wrongful termination by homeowner amounts to repudiation- where contract later terminated by builder- where homeowner not entitled to damages

Domestic Building Contract Act 2000 ss79, 98

Commonwealth v Amann Aviation Pty Ltd (1991) 174 64
Robinson v Harman (1848) 1 Ex 850
BPRefinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Julong Pty Ltd v Fenn & Anor [2002] QCA 529

Ogle v Comboyoro Investments Pty Ltd (1976) CLR 444
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Mc Donalds v Dennys Lascelles Ltd (1933) 48 CLR 457
Howe v Smith (1884) 27 Ch D 89

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr JK Meredith, Counsel, instructed by Southside Lawyers represented Tom Builder Pty Ltd

RESPONDENT:

Mr DJ Nguyen, Australasia Law, represented Mr Duong

REASONS FOR DECISION

Mr Duong and his partner bought a property at South Brisbane, which had development approval for three townhouses. He bought it because his children wanted to attend Brisbane State High School, and to do so, they needed to live in the catchment area. According to Mr Duong, his family needed to reside in the area by December 2010.
Mr Duong and his partner entered into a building contract with Tom Builder Pty Ltd on 12 March 2010. Although the Schedule to the contract does not include a description of the works, it is common ground that the building works involved the construction of three residential dwellings on the South Brisbane property. Mr Duong’s partner is not a party to the proceedings. For convenience, I refer to Mr Duong as the home owner and Tom Builder as the builder.
Some terms were set out in the Schedule to the Contract.[1] The contract price was $750,000. A deposit of $20,000 was payable and was paid. The Schedule specified the commencement date for the works as 28 March 2010[2] and completion date as 28 October 2010.[3] A construction period of 180 days was specified.[4]
[1] Exhibit 4.
[2] Exhibit 4, Item 9.

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] QCAT 366
Decision Date

CaseChat Overview and Summary

The case of Tom Builder Pty Ltd v Duong involves a dispute between a homeowner, Van Quan Duong, and a builder, Tom Builder Pty Ltd, over a building contract for the construction of three residential dwellings on a property in South Brisbane. The primary legal issue the Queensland Civil and Administrative Tribunal (QCAT) had to decide was whether Mr Duong was entitled to damages for breach of, and in reliance on, the contract between the parties. The court also had to determine whether there was an implied term that varied the completion date and whether Mr Duong's termination of the contract was lawful.

The court found that the General Conditions were part of the contract, despite Mr Duong's claims to the contrary. The court accepted that there was an implied term to extend the construction period to 180 days after building approval was obtained. The court also found that Mr Duong's termination of the contract was unreasonable and therefore void, as the works had not been suspended or abandoned. The court concluded that Mr Duong's actions constituted repudiation of the contract, and the builder was entitled to terminate the contract following this repudiation. As a result, Mr Duong was not entitled to any damages.

In summary, the court dismissed Mr Duong's counter-claim for damages, finding that there was no breach of contract by Tom Builder Pty Ltd and that Mr Duong was not an innocent party due to his wrongful termination of the contract. The court also made directions about the filing of material and submissions in support of any application for costs and for a determination of the issue of costs.

Orders