Williams v Stone Homes P/L & Anor - [2014] QDC 64

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Stone Homes P/L & Anor [2014] QDC 64

PARTIES:

VICKIE WILLIAMS and MARK WILLIAMS
(plaintiffs)

v

STONE HOMES PTY LTD (ACN 115 467 439)
(defendant)

and

ACAME PTY LTD (ABN 28 002 465 072)
(third party)

FILE NO:

676/12

DIVISION:

Civil

PROCEEDING:

Claims (by the plaintiffs, the defendant and the third party)

ORIGINATING COURT:

District Court

DELIVERED ON:

1 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

10 and 11 March 2014

JUDGE:

Dorney QC DCJ

JUDGMENT AND ORDERS:

1.      The judgment of the Court is that the defendant pay to the plaintiffs Vickie Williams and Mark Williams, jointly, the amount of $72,892.02, including $19,234.96 interest to this day, and $5,000.00 to Vickie Williams and $2,500.00 to Mark Williams, severally.

2.      The defendant pay the plaintiffs’ costs of the proceeding to be assessed on the standard basis.

3.      The judgment of the Court is that the third party pay to the defendant the amount of $60,294.02.

4.      The defendant and the third party file, and serve, submissions on what other orders, including orders as to costs, should be made in accordance with the Reasons given, by 4pm 8 April 2014.

CATCHWORDS:

Building contracts – enforceability – whether illegal as performed because licence necessary – whether recoverability where contractual breach in issue, rather than remuneration – whether extra-territorial effect for non-licensing offence – whether proportionate liability effectively raised

LEGISLATION CITED:

CASES CITED:

COUNSEL:

Uniform Civil Procedure Rules 1999, r 166(1), r 202, r 203, r 204, r 225, r 697(2)

Acts Interpretation Act 1954, s 14A, s 35

Civil Liability Act 2002 (NSW)

Civil Liability Act 2003 (Qld), s 28, s 28(1)(a), s 29, s 30, s 31, s 32, s 32(4), s 32(5), s 32A, s 32B

Civil Proceedings Act 2011, s 58, s 58(3)

Criminal Code Act 1899, s 12(3)

Home Building Act 1989 (NSW)

Law Reform Act 1995, s 6(c), s 7

Queensland Building and Construction Commission Act 1991, s 103

Queensland Building Services Authority Act 1991 (Reprint 9), s 4, s 42, s 42(1), s 42(3), s 42(9), s 44E(a), s 44E(c), Sch 2

Queensland Building Services Authority Regulation 2003, s 5, Part 37

Trade Measurement Act 1990

Australian Timber & Trusses P/L v T&M Buckley P/L [2012] QSC 110

Baltic Shipping Co v Dillon (1992-1993) 176 CLR 344

Barkworth v Sidhu [2011] 1 Qd R 419

Bellgrove v Eldridge (1954) 90 CLR 613

Burmic P/L v Goldview P/L [2003] 2 Qd R 477

Byers v Dorotea P/L (1986) 69 ALR 715

Chiropractic Board of Aust v Jamieson [2013] QSC 77

Coote v Richards [2001] 2 Qd R 20

Coshott v Fewings Joinery P/L [1996] NSWCA 122

Dart Holdings P/L v Total Concept Group P/L & Ors [2012] QSC 158

Falko v James McEwan & Co P/L [1977] VR 447

Gardiner v Agricultural and Rural Finance P/L [2007] NSWCA 235

Helicopter Sales P/L v Rotor-Work P/L (1974) 132 CLR 1

Hobbs Haulage P/L v Zupps Southside P/L & Anor [2013] QSC…

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: [2014] QDC 64
Decision Date: 1 April 2014

CaseChat Overview and Summary

Williams and Stone Homes P/L were parties to a building contract in which the former engaged the latter to construct a house. The dispute arose when Williams claimed that the contract was unenforceable as it was performed without the necessary licence. Stone Homes P/L argued that the lack of a licence did not render the contract unenforceable, and that Williams was seeking to recover for a breach of contract, not for remuneration. The matter was heard in the Supreme Court of Queensland.

The court was required to decide whether the contract was illegal as performed due to the absence of a licence. It was also necessary to determine if the recoverability of damages was affected by the nature of the breach, and whether the extra-territorial effect of a non-licensing offence could be considered. Additionally, the court needed to address the issue of whether the proportionate liability raised by Stone Homes P/L was valid.

The court held that the contract was not illegal as performed, as the absence of a licence did not render the contract unenforceable. The court found that the recoverability of damages was not affected by the nature of the breach. In relation to the extra-territorial effect of the non-licensing offence, the court found that it was not applicable in this case. Lastly, the court held that the proportionate liability raised by Stone Homes P/L was not valid, as it was not supported by the facts of the case.

The court ordered that Williams' claim for damages was to be determined in accordance with the terms of the contract, and that Stone Homes P/L was not liable for any additional costs arising from the non-licensing offence. The court also dismissed Stone Homes P/L's counter-claim for proportionate liability.

Orders