Withers v Urban Homes Pty Ltd - [2015] QCAT 233

CITATION:

Withers v Urban Homes Pty Ltd [2015] QCAT 233

PARTIES:	Glenn Withers (Applicant)
v
Urban Homes Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL162-14

MATTER TYPE:	Building matters
HEARING DATE:	30 October 2014

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

24 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Urban Homes Pty Ltd pay Glenn Withers the amount of $19,745.00 within 14 days of the date of this order.

CATCHWORDS:

BUILDING DISPUTE – Whether builder entitled to retain amount for variation where variation document does not show cost of variation works and not signed by home owner

Domestic Building Contracts Act 2000 (Qld)

ss 79 - 84

Allaroo Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286

APPEARANCES:

APPLICANT:

Mr Withers was self-represented.

RESPONDENT:

Mr Brian Maloney, director represented Urban Homes Pty Ltd.

REASONS FOR DECISION

History of the application

Mr Withers engaged Urban Homes to build a house at Lot 17, Oasis Close Manly West for the amount of $371,630.00 under a contract dated 10 April 2013. During the course of construction rock was encountered, excess fill had to be removed from the site and a diversion was required around a spring. The costs of this work was not included in the contract and Urban Homes issues variations to Mr Withers in respect of the works totalling $19,745.00.
This amount was paid by Mr Withers on the basis that he reserved his rights and he is now seeking repayment of the sum with interest on the basis that Urban Homes has not complied with the terms of the contract in regard to variations.
Urban Homes deny that they have not complied with the contract and have made a counter application for the amount of $3,940.00, which represents the builder’s margin in respect of the variation. Mr Maloney withdraw the claim for the builder’s margin at the hearing as the evidence of Mr Alan Coffey, the building supervisor was that the variation was to be at cost.
The parties agree that in accordance with clause 2 of the contract specification the work in regard to the rock constitutes a variation. In particular, it states that “no allowance has been made for excavation in rock or other foreign matter not easily removed by standard digging equipment as determined solely by the builder. The owner may incur extra costs including but not limited to machine hire, labour and extra materials should such rock or extra material be revealed.” The specification also state that excavated material spoil, trees, etc to be stockpiled on site
Mr Coffey[1] stated that rock was found on 31 May 2015, which was the day site work commenced. He says he contacted Mr Withers and advised him of this and invited him to attend the site. He also gave him the option of Mr Coffey coming to him to have a variation signed. The work would involve the removal of the rock and Mr Withers agreed with him that while the trucks were there it would…

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: [2015] QCAT 233
Decision Date: 24 June 2015

CaseChat Overview and Summary

The dispute in Withers v Urban Homes Pty Ltd arose from a disagreement about whether the defendant, Urban Homes Pty Ltd, was entitled to retain a sum of money following a variation to the original building contract with the plaintiff, Glenn Withers. The case was heard in the Supreme Court of Queensland. The plaintiff alleged that the defendant had not fulfilled its obligations under the building contract, specifically in relation to a variation which increased the scope of the work to be performed. The defendant claimed that it was entitled to retain the amount of the variation as it had been agreed upon by both parties and documented in a variation document, despite the document not showing the cost of the variation works and not being signed by the plaintiff.

The primary legal issue the court needed to address was whether the defendant was entitled to retain the amount of the variation when the variation document did not contain the cost of the variation works and was not signed by the plaintiff. The court considered whether the defendant had fulfilled its contractual obligations and whether there was a valid agreement between the parties regarding the variation. The court also examined whether the lack of the cost information and the absence of the plaintiff's signature on the variation document invalidated the agreement.

The court held that the defendant was not entitled to retain the amount for the variation as the variation document did not show the cost of the variation works and was not signed by the plaintiff. The court found that the variation document did not constitute a valid agreement between the parties as it lacked essential information and was not signed by the plaintiff. The court emphasised the importance of the terms of the building contract and the need for any variations to be properly documented and agreed upon by both parties. Consequently, the defendant was ordered to pay the plaintiff the amount of $19,745.00 within 14 days of the date of the order.

Orders

Orders of the court

1. Urban Homes Pty Ltd pay Glenn Withers the amount of $19,745.00 within 14 days of the date of this order.

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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