Worthington v Ryan; Ryan v Worthington - [2021] QCATA 138

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

In APL045-17

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

PARTIES: STEVEN BRYAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS

(applicant/appellant)

v

ANDREW WILLIAM RYAN

(respondent)

In APL163-18

PARTIES:

ANDREW WILLIAM RYAN

(applicant/appellant)

v

STEVEN BRYAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS

(respondent)

ORIGINATING APPLICATION NO:

BDL274-11

MATTER TYPE:

Appeals

DELIVERED ON:

11 October 2021

HEARING DATE:

9 August 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

1. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions on the final orders to give effect to these reasons within fourteen (14) days of the date of these directions.

2. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions in reply within seven (7) days after receipt of the submissions filed in accordance with direction 1.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where contract lawfully terminated by builder – where assessment of damages required to take into consideration cost to builder of undertaking rectification work – whether evidence of rectification costs – where interest awarded to builder – entitlement to interest on damages in building disputes

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – conduct of appeal and cross appeal – where appeal involves error of law – where cross appeal involves error of fact – power of tribunal to conduct appeal by way of rehearing in respect of both appeals

Civil Proceedings Act 2011 (Qld), s 4, s 59.
Queensland Building and Construction Commission Act 1991 (Qld), s 14, s 50(2)(b), s 50A(3)(b), s 146, s 147.
Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(c).

Queensland Building and Construction Commission Act 1991 (Qld), s 34B, 54, 58(2).

Bellgrove v Eldridge [1954] 90 CLR 613.
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302.
Edwards v Noble [1971] 125 CLR.
Ericson v Queensland Building and Construction Commission [2014] QCA 297.
Ericson v Queensland Building Services Authority [2013] QCA 391.
Harrison & Anor v Meehan [2016] QCATA 197.
Harrison & Anor v Meehan [2017] QCA 315.
Miller v Lida Build Pty Ltd [2015] QCATA 137.
Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320.
Robinson v Harman (1848) 1 Ex Rep 850.
Worthington v Simmons [2013] QCAT (unreported).
Worthington t/as Worthington Simmons Builders v Ryan [2017] QCAT 12.

APPEARANCES & REPRESENTATION:

Mr Worthington:

Mr D Gardiner, instructed by McCarthy Durie Lawyers

Dr Ryan:

Mr Mark Dillman, solicitor, M+K Lawyers

REASONS FOR DECISION

Mr Worthington, who traded as Worthington Simmons Builders, contracted with Dr Ryan for the performance of building work involving a substantial renovation of Dr Ryan’s residence. The parties fell into dispute. Mr Worthington commenced…

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: [2021] QCATA 138
Decision Date: 11 October 2021

CaseChat Overview and Summary

Worthington v Ryan; Ryan v Worthington involved a dispute between a builder and a homeowner regarding the completion of a construction project. The homeowner, Mr Worthington, alleged that the builder, Dr Ryan, breached the contract by failing to complete the project to the agreed standard. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT), with subsequent appeals and cross-appeals brought by both parties. The central issues in the appeal were the calculation of damages owed by Mr Worthington to Dr Ryan, and the entitlement to interest on those damages. Dr Ryan argued that the QCAT erred in calculating the total credit for variations, resulting in an overpayment to Mr Worthington. Mr Worthington, on the other hand, appealed against the QCAT's decision to award Dr Ryan interest on the damages from the date of termination of the contract.

The appeals court found that there was indeed an error in the QCAT's assessment of Mr Worthington's entitlement to damages. The court identified that the QCAT had failed to take into account the cost to the builder of undertaking rectification work, which should have reduced the amount payable to Dr Ryan. However, the error did not favour Mr Worthington, and his appeal was dismissed. The court also found that the QCAT erred in awarding interest to Dr Ryan on the damages from the date of termination of the contract. In light of these findings, the appeals court ordered that the parties file and exchange submissions on the final form of orders to give effect to the reasons, including the determination of the issue of the costs of the appeals. This approach was considered consistent with the objects of the QCAT Act and the functions of the tribunal in achieving those objects.

Orders

Orders of the court

1. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions on the final orders to give effect to these reasons within fourteen (14) days of the date of these directions.

2. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions in reply within seven (7) days after receipt of the submissions filed in accordance with direction 1.

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

For the reasons we have outlined, there was error by the learned member in the assessment of Mr Worthington’s entitlement to damages and in determining Mr Worthington’s entitlement to interest. Conclusion in APL045-17 There was error by the learned member in allowing interest on the damages awarded to Mr Worthington from the date of the termination of the contract. However, the identified error does not favour Mr Worthington and his appeal therefore fails. In calculating the builder’s entitlement to damages, the learned member allowed a total credit for variations of $112,224.36. This included an amount for variation 28 of $1,480.00. In fact, the additional amount of $37,930.00 must be taken into consideration in respect of the landscaping works which the parties agreed the builder would not undertake. The result of this is that the amount payable to the builder must be reduced. Orders We will make directions for the parties to file and exchange submissions as to the final form of orders to be made to give effect to these reasons. Those submissions should also include the determination of the issue of the costs of the appeals.

Ratio Decidendi

Legal Principle Established

This approach is consistent with the objects of the QCAT Act and the functions of the tribunal in achieving those objects, ensuring that the appeals are dealt with in a way that is economical, informal or quick, or more generally, that the proceeding is being conducted in a way that minimises costs to the parties.[29][29]QCAT Act, s 3(b), s 4(c).Consideration – APL163-18: The appeal by Dr Ryan Dr Ryan’s sole ground of appeal is that the Tribunal erred in calculating the total credit for variations. Dr Ryan says that the learned member erred in finding that the total credit for variations to be deducted from the contract sum was $112,224.36, when in fact it was $148,674.36. The result of the error, says Dr Ryan, is that Worthington Simmons’ entitlement to damages should have been reduced by $28,763.48. As we have observed, this ground of appeal raises a question of fact. There were a total of 37 variations claimed by Worthington Simmons. Variations 1 to 30, and variations 36 and 37 were approved by Dr Ryan. Variations 31 to 35 were not approved by Dr Ryan. The learned member found that the amount to be deducted from the contract sum for variations numbered 1 to 30 (which comprised both positive and negative variations) was $129,567.00.[30] The total value of variations 36 and 37 was $17,343.00. Variation 37 was for pool and other fencing. The learned member found that this work had been completed and the builder was entitled to be paid. The result, concluded the learned member, was that the amount to be deducted from the contract price was $112,224.36.[31][30]Op cit 4, [116].[31]Ibid. Dr Ryan says that the correct amount to be deducted from the contract price is $148,674.36. Dr Ryan says that the error by the learned member arises out of the failure to take into consideration a negative variation in respect of landscaping works. In the amended application for domestic building dispute,[32] Mr Worthington set out the particulars of the 37 variations. The application did not particularise the actual building work relating to the variations. In respect of variation 28, an amount of (negative) $1,480.00 was conceded by the builder. [32]Applicant appeal book APL045-17 p 164 Mr Cosker was the expert quantity surveyor upon whose evidence Dr Ryan relied.[33] In his report, Mr Cosker valued variations 1 to 30 in the amount of (negative) $150,924.50 (excluding GST). Mr Cosker allowed a negative variation of $34,481.82 (excluding GST) in respect of variation 28. In his report, Mr Cosker described variation 28 as ‘Landscaping’. [33]Applicant appeal book p 113. Copies of the variations were in evidence.[34] Variation 28 is dated 15 January 2011. The description of the variation is:Credit for supply of door handles not supplied by W & S Builders. Owner to supply.[34]Exhibit 4. The amount of variation 28 is $1,480.00. Variation 28 in evidence is consistent with the description of variation 28 in the schedule of variations included in Mr Worthington’s originating application.

CITATION: In APL045-17	Worthington v Ryan; Ryan v Worthington [2021] QCATA 138
PARTIES:	STEVEN BRYAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS
(applicant/appellant)
v
ANDREW WILLIAM RYAN
(respondent)
In APL163-18
PARTIES:	ANDREW WILLIAM RYAN
(applicant/appellant)
v
STEVEN BRYAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS
(respondent)
ORIGINATING APPLICATION NO:	BDL274-11
MATTER TYPE:	Appeals
DELIVERED ON:	11 October 2021
HEARING DATE:	9 August 2019
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown Member Howe
ORDERS:	1. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions on the final orders to give effect to these reasons within fourteen (14) days of the date of these directions. 2. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of submissions in reply within seven (7) days after receipt of the submissions filed in accordance with direction 1.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where contract lawfully terminated by builder – where assessment of damages required to take into consideration cost to builder of undertaking rectification work – whether evidence of rectification costs – where interest awarded to builder – entitlement to interest on damages in building disputes APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – conduct of appeal and cross appeal – where appeal involves error of law – where cross appeal involves error of fact – power of tribunal to conduct appeal by way of rehearing in respect of both appeals Civil Proceedings Act 2011 (Qld), s 4, s 59. Queensland Building and Construction Commission Act 1991 (Qld), s 14, s 50(2)(b), s 50A(3)(b), s 146, s 147. Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(c). Queensland Building and Construction Commission Act 1991 (Qld), s 34B, 54, 58(2). Bellgrove v Eldridge [1954] 90 CLR 613. Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302. Edwards v Noble [1971] 125 CLR. Ericson v Queensland Building and Construction Commission [2014] QCA 297. Ericson v Queensland Building Services Authority [2013] QCA 391. Harrison & Anor v Meehan [2016] QCATA 197. Harrison & Anor v Meehan [2017] QCA 315. Miller v Lida Build Pty Ltd [2015] QCATA 137. Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320. Robinson v Harman (1848) 1 Ex Rep 850. Worthington v Simmons [2013] QCAT (unreported). Worthington t/as Worthington Simmons Builders v Ryan [2017] QCAT 12.
APPEARANCES & REPRESENTATION:
Mr Worthington:	Mr D Gardiner, instructed by McCarthy Durie Lawyers
Dr Ryan:	Mr Mark Dillman, solicitor, M+K Lawyers