Van Der Westhuizen v Samcol Homes Pty Ltd - [2019] QCAT 171

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Van Der Westhuizen v Samcol Homes Pty Ltd & Anor [2019] QCAT 171

PARTIES: IAN VAN DER WESTHUIZEN

(applicant/first respondent by Counter Application)

v

SAMCOL HOMES PTY LTD

(respondent)

SONIA VAN DER MERWE
(second respondent by Counter Application)

APPLICATION NO/S:

BDL213-15

MATTER TYPE:

Building matters

DELIVERED ON:

27 June 2019

HEARING DATE:
31 May 2017

1 June 2017

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:
1.   Samcol Homes Pty Ltd is to pay Ian Van Der Westhuizen $1,108.91.

2.   Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 29 July 2019.

3.   If any Application for costs is made:

(a)    the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 26 August 2019;

(b)    the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 9 September 2019;

(c)     The Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00pm 9 September 2019.

4.   If no Application for costs is made in accordance with Order 2 then there shall be no order as to costs.

CATCHWORDS:
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – whether home owner entitled to re-imbursement of moneys paid to contractor – whether paid under a mistaken belief – whether contractor ought to be relieved of repayment where mistake in terms of written contract

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL –- whether home owner entitled to damages for work not completed in accordance with the contract where home owners had agreed practical completion achieved

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – Domestic Building Contracts Act 2000 (Qld) – where contractual variations – where variations did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld) – where owner agreed to variation work - whether contractor entitled to claim by way of quantum meruit – whether section 84 of the Domestic Building Contracts Act clearly abrogated right to restitutionary claim

Domestic Building Contracts Act 2000 (Qld), s18, s 79, s 84
Queensland Building and Construction Commission Act 1991 (Qld), s77
Queensland Building and Construction Commission Regulation 2003 (Qld), s 34B
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
CMF Projects Pty Ltd v Riggall & Anor [2016] 1 Qd R 187
Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) (2009) ALR 661
David…

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.

Keep reading for free

Create a free CaseChat account to read Van Der Westhuizen v Samcol Homes Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QCAT 171
Decision Date: 27 June 2019

CaseChat Overview and Summary

Van Der Westhuizen v Samcol Homes Pty Ltd involved a dispute between Ian Van Der Westhuizen, a homeowner, and Samcol Homes Pty Ltd, a contractor. Mr Van Der Westhuizen had entered into a contract with Samcol for the construction of a home. He sought reimbursement of monies paid to Samcol under a mistaken belief, as well as damages for work not completed in accordance with the contract. Samcol argued that it was entitled to claim by way of quantum meruit for variations that did not comply with the Domestic Building Contracts Act 2000 (Qld), as the owner had agreed to the variation work. The court was required to determine whether the homeowner was entitled to reimbursement, whether the contractor could be relieved of repayment where the mistake was in terms of the written contract, and whether the contractor could claim by way of quantum meruit for variations that did not comply with the Act.

The court considered the terms of the written contract, which specified that the homeowner was entitled to reimbursement of any overpayments. The court found that the homeowner was entitled to reimbursement of the moneys paid to Samcol under a mistaken belief, as the contract provided for such a scenario. The court also found that the homeowner was not entitled to damages for work not completed in accordance with the contract, as he had agreed that practical completion had been achieved. Finally, the court found that section 84 of the Domestic Building Contracts Act 2000 (Qld) clearly abrogated the right to a restitutionary claim for variations that did not comply with the Act.

Samcol Homes Pty Ltd was ordered to pay Ian Van Der Westhuizen $1,108.91. Any application for costs by a party was to be made by filing in the Tribunal two copies and providing to the other party one copy of any submissions and evidence in support of the application for costs. If any application for costs was made, the other party had to file in the Tribunal two copies and provide one copy of any submissions and evidence in response to the party making the application for costs. The party making the application for costs had to file in the Tribunal two copies and provide one copy of any submissions and evidence in reply to the other party. The application for costs would be determined on the papers on the basis of any documents filed unless a party requested an oral hearing. If no application for costs was made in accordance with the order, there would be no order as to costs.

Orders

Orders of the court

1. Samcol Homes Pty Ltd is to pay Ian Van Der Westhuizen $1,108.91.

2. Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 29 July 2019.

3. If any Application for costs is made:

(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 26 August 2019;

(b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 9 September 2019;

(c) The Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00pm 9 September 2019.

4. If no Application for costs is made in accordance with Order 2 then there shall be no order as to costs.

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:	Van Der Westhuizen v Samcol Homes Pty Ltd & Anor [2019] QCAT 171
PARTIES:	IAN VAN DER WESTHUIZEN
(applicant/first respondent by Counter Application)
v
SAMCOL HOMES PTY LTD
(respondent)
SONIA VAN DER MERWE (second respondent by Counter Application)
APPLICATION NO/S:	BDL213-15
MATTER TYPE:	Building matters
DELIVERED ON:	27 June 2019
HEARING DATE:	31 May 2017 1 June 2017
HEARD AT:	Brisbane
DECISION OF:	Member Deane
ORDERS:	1. Samcol Homes Pty Ltd is to pay Ian Van Der Westhuizen $1,108.91. 2. Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 29 July 2019. 3. If any Application for costs is made: (a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 26 August 2019; (b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 9 September 2019; (c) The Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00pm 9 September 2019. 4. If no Application for costs is made in accordance with Order 2 then there shall be no order as to costs.
CATCHWORDS:	CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – whether home owner entitled to re-imbursement of moneys paid to contractor – whether paid under a mistaken belief – whether contractor ought to be relieved of repayment where mistake in terms of written contract CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL –- whether home owner entitled to damages for work not completed in accordance with the contract where home owners had agreed practical completion achieved CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – Domestic Building Contracts Act 2000 (Qld) – where contractual variations – where variations did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld) – where owner agreed to variation work - whether contractor entitled to claim by way of quantum meruit – whether section 84 of the Domestic Building Contracts Act clearly abrogated right to restitutionary claim Domestic Building Contracts Act 2000 (Qld), s18, s 79, s 84 Queensland Building and Construction Commission Act 1991 (Qld), s77 Queensland Building and Construction Commission Regulation 2003 (Qld), s 34B Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 CMF Projects Pty Ltd v Riggall & Anor [2016] 1 Qd R 187 Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) (2009) ALR 661 David…