Urguhart v Partington - [2013] QCAT 133

CITATION:

Urguhart v Partington [2013] QCAT 133

PARTIES:	J B and B Urguhart trading as Hart Renovations (Applicant)
v
Philip and Evelyn Partington (Respondent)

APPLICATION NUMBER:

BDL072-10

MATTER TYPE:

Building matters

HEARING DATE:

27, 28, 29 and 30 August 2012

HEARD AT:

Brisbane

DECISION OF:

Mr Richard Oliver, Senior Member

DELIVERED ON:

19 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

(a) The respondents must pay to the applicant the sum of $214,946.00 by 29 March 2013.

(b) The respondents must pay to the applicant the costs thrown away as a result of the adjournment of the hearing and the experts conclave listed for 22 August 2011 to be agreed or assessed on the District Court Scale of Costs, or failing agreement;

(i) The applicant must file in the Tribunal and give to the respondents a short form assessment of costs together with any submissions on the amount of costs payable by 12 April 2013.

(ii) The respondent’s must file and give to the applicant any submissions in reply by 26 April 2013.

(iii) The amount of the costs payable by the respondents will be determined on the papers without an oral hearing.

CATCHWORDS:

Domestic Building Dispute – where contract provided for progress payments to the enclosed stage – where respondents refused to pay the enclosed stage payment – whether the works reached the enclosed stage – whether the respondents in failing to make the payment of the enclosed stage were in breach of contract – where applicant carried out defective and incomplete building work – assessment of damages under the contract including “contractor’s margin” and interest – where respondents counterclaim for defective building work assessed and offset against the applicant’s damages.

Costs – where hearing adjourned because of late production of expert report – whether applicant put at a disadvantage – whether the respondents should pay the costs thrown away by the adjournment.

Queensland Civil and Administrative Tribunal Act 2009 ss 48, 100, 102
Queensland Building Services Authority Act1991 ss 72, 77

Ownit Homes Pty Ltd v Batchelor (1983) 2 Qld R 124

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

The applicant was represented by Ms Emery, solicitor of Doyles, Construction Lawyers.

RESPONDENT:

The respondents were self represented.

REASONS FOR DECISION

In early 2008 the Partingtons decided to carry out a major renovation to their house in Sherwood. This included lifting the house, building in underneath and adding an extension. Plans for the project were prepared by an architect, Nicole Western, and engineering design drawings were prepared by Morgan Consulting Engineers Pty Ltd.
In early 2008 the Partingtons spoke to Mr Urguhart about the renovation and asked for a quote. Mr Urguhart engaged quantity surveyors, Total Estimating Services, to prepare a costing for the work. Their cost estimate was $561,617.38 and with other additions including the builder’s margin, the total price quoted to carry out the work in accordance with the plans was over $740,000.
Discussions continued and with some variations to the work to be undertaken, by 21 July…

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.

Continue reading Urguhart v Partington

Details

AGLC: Urguhart v Partington [2013] QCAT 133
Case: [2013] QCAT 133
Decision Date

CaseChat Overview and Summary

The applicants, J B and B Urguhart trading as Hart Renovations, sought to recover monies due under a building contract, damages, interest and costs. The respondents, Philip and Evelyn Partington, denied that they were in breach of the contract and counterclaimed for defective and incomplete building work. The issues to be determined were: (1) whether the building works reached the enclosed stage; (2) whether the applicants lawfully terminated the contract; (3) if the works did not reach the enclosed stage what was the value of the applicants quantum meruit claim; (4) if the applicants lawfully terminated the contract what were the damages flowing from the respondents’ breach; (5) what were the defects, if any, to the enclosed stage; (6) what was the value of the cost to rectify or incomplete building work to the enclosed stage; and (7) if the contract was unlawfully terminated what damages were claimed by the respondents and what damages were recoverable. The Tribunal found that the works had reached the enclosed stage and that the applicants lawfully terminated the contract. The applicants were entitled to damages for breach of contract in the sum of $214,946.00. The respondents were liable for the cost of rectification and completion of work to the sum of $62,500.00. The applicants were liable to pay the respondents $62,500.00. The respondents were ordered to pay the applicants the costs thrown away because of the adjournment of the hearing and the experts conclave listed for 22 August 2011 to be agreed or assessed on the District Court Scale of Costs, or failing agreement; (i) the applicant must file in the Tribunal and give to the respondents a short form assessment of costs together with any submissions on the amount of costs payable by 12 April 2013; (ii) the respondents must file and give to the applicant any submissions in reply by 26 April 2013; and (iii) the amount of the costs payable by the respondents will be determined on the papers without an oral hearing.

Orders