Yeo v Queensland Building and Construction Commission - [2023] QCAT 367

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Yeo & Anor v Queensland Building and Construction Commission & Anor [2023] QCAT 367

PARTIES:

DAXTER YEO
HELEN SHUK YEE NG

(applicants)

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

DE MARCO CONSTRUCTIONS PTY LTD

(second respondent)

APPLICATION NO/S:

GAR277-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 September 2023

HEARING DATE:

15 February 2021

16 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1. The decision of the Queensland Building and Construction Commission dated 16 July 2018 that the claim under the Queensland Home Warranty Scheme is disallowed is set aside.

2. It is declared that the contract was properly terminated at the default of De Marco Constructions Pty Ltd.

3. The matter is returned to the Queensland Building and Construction Commission for reconsideration with a direction that Daxter Yeo andHelen Shuk Yee Ng had properly terminated the building contract at the default of De Marco Constructions Pty Ltd .

4. De Marco Constructions Pty Ltd is to pay Daxter Yeo and Helen Shuk Yee Ng costs fixed in the amount of $6,930 (incl GST) by 4:00pm on 13 October 2023.

5. Any Application for other costs of the proceedings by a party is to be made by filing in the Tribunal two (2) copies and providing to the other parties one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 13 October 2023.

6. If any such Application for other costs is made:

(a) the other parties 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 and the other party by 4:00pm on 10 November 2023;

(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 parties by 4:00pm on 24 November 2023;

(c) the Application for costs will be determined on the papers based on any documents filed unless a party requests an oral hearing not before 4:00 pm on 24 November 2023.

7. If no Application for costs is made in accordance with Order 5 then there shall be no order as to other costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – review of decision disallowing a claim under the statutory insurance scheme – whether contract properly terminated upon the contractor’s default – whether termination invalid – whether the homeowners were in substantial breach at the time they purported to terminate - whether contractor unreasonably failed to perform the works diligently or unreasonably delayed or failed to maintain reasonable progress – whether contractor failed to carry out the work competently – whether contractor’s breaches were substantial breaches - whether contractor repudiated the contract

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – GENERALLY – whether homeowners entitled 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.

Keep reading for free

Create a free CaseChat account to read Yeo v Queensland Building and Construction Commission 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: [2023] QCAT 367
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) reviewed a decision by the Queensland Building and Construction Commission (QBCC) that disallowed a claim under the Queensland Home Warranty Scheme, finding that Daxter Yeo and Helen Shuk Yee Ng (the Homeowners) had not properly terminated their building contract with De Marco Constructions Pty Ltd (the Contractor) upon the Contractor's default. The QBCC's decision was based on the premise that the Homeowners had not correctly terminated the contract in accordance with the statutory insurance scheme's policy conditions. The Homeowners argued that they were entitled to terminate the contract due to the Contractor's substantial breaches, which included unreasonable delays, failure to perform the works diligently, and failure to carry out the work competently. The Tribunal found that the Homeowners had properly terminated the contract due to the Contractor's substantial breaches, which were not remedied within the required timeframe. The court set aside the QBCC's decision, declared that the contract was properly terminated by the Homeowners at the Contractor's default, and returned the matter to the QBCC for reconsideration with a direction to acknowledge the Homeowners' lawful termination of the contract. Furthermore, the Contractor was ordered to pay the Homeowners' costs in the amount of $6,930 (including GST). The decision also provided a process for the parties to seek additional costs related to the proceedings.

Orders