WP & SB Cusack v Raceberry Pty Ltd - [2013] QCAT 330

CITATION:

WP & SB Cusack v Raceberry Pty Ltd [2013] QCAT 330

PARTIES:	WP and SB Cusack Dilam Pty Ltd (Applicants)
V
Raceberry Pty Ltd (Respondent)

APPLICATION NUMBER:

GAR197-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

26 April 2013

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

2 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Declare the contract entered into between the applicants and Stylebuilt Homes Australia Pty Ltd dated 3 March 2010 has been lawfully terminated.

2. The application is listed for a directions hearing on a date to be advised to the parties.

CATCHWORDS:

Home Warranty Insurance Scheme – where the insurance policy imposes and obligation on a homeowner to properly terminate the contract before the policy will respond to the claim – whether the contract was terminated lawfully under the contract – whether the contract was terminated otherwise at law – whether applicants elected to accept the builders repudiation – whether claim made in time.

CGM investments Pty Ltd v Chelliah (2003) 196 ALR 548;
Marminta Pt Ltd v French [2003] QCA 541;
Immigration, Local Government & Ethinic Affairs, Minister for v Kutovic (1990) 92 ALR 93 at 108
Queensland Building Services Authority v Fox [2005] QDC 129
Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625

Cheshire and Fifoot “Law of Contract” (8^th Aust Ed, 2002) p. 42

APPEARANCES and REPRESENTATION (if any):

APPLICANTS:

Mr Cusack, solicitor

RESPONDENT:

Mr Turnbull, solicitor of HWL Ebsworth.

REASONS FOR DECISION

The applicants are the owners of a house at Schmidt Road, Fernvale. They entered into a contract with Stylebuilt Factory Direct Homes Australia Wide Pty Ltd (“the builder”) for the construction of the house in March/April 2010. The house reached practical completion on 1 April 2011, however there was still work to be done by the builder. The builder went into liquidation in March 2012. The work was not completed so the applicants lodged a complaint with the Queensland Building Services Authority making a claim on the statutory Home Warranty Insurance Scheme (“Scheme”).
The Authority made a decision to reject the claim. In a letter to the applicants dated 2 May 2012 the Authority said the claim was out of time in that two years had passed since “the date of payment of the insurance premium or the date of entering into the contract (whichever is the earlier)”. As the premium was paid on 20 April 2010 the former ground is not relied upon, only the date of the contract. The applicants filed an application to review the decision of the Authority on 30 May 2012.
Subsequent to the filing of the application, the parties have agreed that the Tribunal should decide, as a preliminary issue, the question of whether there is a valid claim on the Scheme. That determination will depend on whether the contract was lawfully terminated by the applicants either in accordance with the terms of the building contract or otherwise at law. To…

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 WP & SB Cusack v Raceberry Pty Ltd

Details

AGLC: WP & SB Cusack v Raceberry Pty Ltd [2013] QCAT 330
Case: [2013] QCAT 330
Decision Date

CaseChat Overview and Summary

WP and SB Cusack, the applicants, sought a review of a decision by the Queensland Building Services Authority (the Authority) to reject their claim under the Home Warranty Insurance Scheme. The builders, Stylebuilt Factory Direct Homes Australia Wide Pty Ltd, had gone into liquidation, leaving outstanding work and unpaid rent. The central issue was whether the contract between the applicants and the builders had been lawfully terminated, as required by the terms of the insurance policy. The court examined whether the contract ended by performance, abandonment, or lawful termination under the contract or otherwise at law.

The court concluded that the contract was not terminated by performance or abandonment. It further found that the applicants did not terminate the contract lawfully under its terms. However, the court determined that the contract was lawfully terminated otherwise at law due to the builders' repudiation, as evidenced by their insolvency and the subsequent refusal of their administrators to fulfill contractual obligations. Despite this finding, the court noted that the timing of the applicants' claim remained contested, and the matter was relisted for further directions to address this issue.

Orders