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: |
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| 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 costs thrown away in relation to experts’ conclave where contractor’s expert no longer retained Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 17, s 18, s 20, s 24, s 48, s 100, s 102, s 107 Queensland Building and Construction Commission Act 1991 (Qld), s 3, s77, s 86, s 86E, s 87, Schedule 1B s 40, s 42 Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Thunder Corp Pty Ltd v Queensland Building Services Authority [2011] QCAT 56 | |||||||
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Table of Contents
Background
Reviewable Decision and Review Jurisdiction
Policy Conditions
Witnesses
Contract
Notices to Remedy Breach
Homeowners’ Notice to Remedy Breach dated 22 September 2017(the September Notice)
Contractor’s Notice to Remedy Breach dated 29 November 2017
Homeowners’ Notice to Remedy Breach dated 29 November 2017 (November Notice)
Homeowners’ Notice to Remedy Breach dated 19 December 2017 (December Notice)
Did the Homeowners properly terminate the Contract lawfully under the contract or otherwise at law, upon the contractor’s default?
Was the termination invalid because the Homeowners were in substantial breach for failing to pay amounts due and owing?
Was the Contractor in breach of the Contract? Was the breach a substantial breach? Was the substantial breach not remedied by 8 January 2018 entitling termination?
Was the Contractor in breach of its obligations by unreasonably failing to perform the works diligently or unreasonably delaying or failing to maintain reasonable progress as of 19 December 2017? Was any such breach a substantial breach?
Suspension and the Christmas shutdown
Failure to complete the works by the date for practical completion and the works being significantly delayed
Staircase and Water ingress
Variations
Cashflow issues
Suspension of the works
Curtainwall
Were the works unreasonably delayed?
Was the Contractor in breach of its obligations by failing to carry out work under the Contract competently as of 19 December 2017? Was any such breach a substantial breach?
Failing to construct the Curtainwall in accordance with approved plans
Claiming non-compliant Variations and extensions of time (EOTs)
Unreasonably failing to replace defective work or materials
Failing to hold the current, active and appropriate licence to perform the works under the Contract
Failing to comply with continuous indemnity provided by clause 11.1 of the Special Conditions of Contract
Summary
Repudiation
Payment demand and suspension of the works
What orders are appropriate?
Application for miscellaneous matters filed 2 April 2020
Other Costs
REASONS FOR DECISION
Background
Daxter Yeo and Helen Shuk Yee Ng (the Homeowners) contracted with De Marco Constructions Pty Ltd, then a licensed contractor (the Contractor), to finish building a new home for them following a previous contractor being placed in liquidation in December 2015 and that contract being terminated in January 2016.
The Homeowners had received development approval from the Brisbane City Council (the Council) to build their home subject to conditions on 11 January 2013 (the DA).
Unsurprisingly, the Contractor identified prior to contracting that it was likely that it would need to undertake rectification work of the previous contractor’s work.[1] Subsequent to negotiating the terms, the Homeowners and the Contractor signed a contract dated 24 May 2016 (the Contract).[2] There was no dispute that a complete copy of the Contract was in evidence before me.[3]
[1]Statement of Reasons and indexed bundle of documents filed 9 November 2018 (collectively referred to as SOR), SOR 5, email 8 April 2016, paragraph 2.
[2]Exhibit 9. The Formal Instrument of Agreement is dated 24 May 2016. The Schedule for QBCC New Home Construction Contract (Schedule) at item 16 is signed by both parties and dated 25 May 2016. A copy of part of the Contract formed SOR7. Exhibit 9 includes the documents forming SOR7. It also includes emails between the Homeowners and the Contractor dated 22 May 2016 (22 May 2016 Emails) as well as construction issue plans prepared by Hayes Anderson Lynch Architects Pty Ltd, construction issue structural drawings prepared by Michael Bale & Associates, structural and civil engineering consultancy and ‘BA/Tender’ issue hydraulic services drawings prepared by Hydraulic Design Solutions.
[3]Exhibit 9.
Disputes arose and the Homeowners purported to terminate the Contract on 8 January 2018 both under the Contract and by reason that they claim the Contractor repudiated the Contract.[4]
[4]The Notice of Termination was dated 8 January 2017, being apparently a typographical error. SOR69, p 634 – p 637.
Reviewable Decision and Review Jurisdiction
The Homeowners made a non-completion claim to the Queensland Building and Construction Commission (QBCC).
The QBCC disallowed a claim under the Queensland Home Warranty Scheme also known as the statutory insurance scheme (the SIS) on the grounds that the Homeowners had not properly terminated the Contract for the default of the Contractor.
The Homeowners sought internal review of that decision. On internal review the QBCC confirmed that the Contract had not been properly terminated at the default of the Contractor and therefore decided to disallow the Homeowners’ claim under the SIS (the Decision).[5] The Homeowners applied to review the Decision.[6] The QBCC filed a statement of reasons for the Decision and thousands of pages of documents, most of which were not referred to by any witnesses in these proceedings.
[5]Decision dated 16 July 2018 received 17 July 2018.
[6]Application to review a decision filed 13 August 2018 (Application).
Following the oral hearing, after some delay, quite lengthy written submissions were filed.[7] The delay in finalising this application since the submissions were filed is extremely regrettable and relates, at least in part, to resourcing issues.
[7]The Homeowners’ submissions filed 9 April 2021, 4 May 2021 and 1 October 2021; The Contractor’s submissions filed 9 April 2021; QBCC’s submissions filed 10 September 2021.
Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides:
The Tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
Section 18 of the QCAT Act provides:
The Tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.
The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).[8] For the purposes of internal review, a decision to disallow a claim under the SIS wholly or in part is a reviewable decision.[9] For the purposes of an external review, ‘reviewable decision’ means a reviewable decision as listed in section 86 of the QBCC Act other than a decision that was the subject of an internal review or an internal review decision.[10]
[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6 (QCAT Act).
[9]Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(h) (QBCC Act).
[10]Ibid, s 86E.
I am satisfied the Decision is a reviewable decision.
A person affected by a reviewable decision of the QBCC may apply to the Tribunal for a review of the decision.[11]
[11]Ibid, s 87.
On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[12] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[13] The Tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the decision was made. There is no presumption that the decision under review is correct.[14]
[12]QCAT Act, s 24.
[13]Ibid, s 20.
[14]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
These proceedings focussed on the issue of whether the Homeowners properly terminated the Contract in accordance with the relevant policy of the SIS.[15]
[15]Thunder Corp Pty Ltd v Queensland Building Services Authority [2011] QCAT 56, [45]-[47].
This is not a domestic building dispute proceeding where the Tribunal is empowered to make findings about a broad range of matters including amounts owing as between the Homeowners and the Contractor under the Contract or otherwise at law.[16]
[16]QBCC Act, s 77.
The objects of the QBCC Act include to, amongst other things, achieve a reasonable balance between the interests of building contractors and consumers and to provide remedies for defective building work.[17]
[17]Ibid, s 3.
The Tribunal has recognised that an applicant in review proceedings has no formal onus of proof but has an evidential or practical onus to adduce evidence which supports its case as the Tribunal must make its decision on the material before it. As stated in Laidlaw v Queensland Building Services Authority[18]
In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.
[18][2010] QCAT 70, [23] (references omitted).
Policy Conditions
In these proceedings there was no dispute that the relevant terms of the SIS policy are set out in the Policy Conditions effective 1 July 2009, known as Edition 8 (the Policy).[19]
[19]SOR 1.
Clause 1.1 of the Policy provides:
Subject to the terms of this policy, the QBCC agrees to pay for loss suffered by the Insured in the event of the contractor failing to complete the contract for the residential construction work.
Clause 1.2 of the Policy provides in relation to payment for non-completion that:
The QBCC is only liable to pay for loss under this Part when the contract is for a fixed price and the Insured has properly terminated the contract with the contractor.[20]
[20]Ibid, p31.
Clause 11.1 of the Policy sets out definitions of certain terms used in the Policy, most relevantly:
“contract” means a contract for the performance of the residential construction work referred to in the certificate of insurance or, where there is no certificate of insurance issued, a contract for the performance of residential construction work which is afforded the benefits of the policy by virtue of the QBCC Act
“contractor” relevantly means (i) the licensed contractor referred to in the certificate; or (ii) where there is no certificate, a contractor who holds a licence which appears to signify that the contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme, who enters into a contract with a consumer to carry out residential construction work or otherwise carries out residential construction work other than as a subcontractor
“fixed price” means a price which is certain, except for the effect of provisional costs or sums, prime costs or sums, variations and any costs escalation clause.
“insured” relevantly means the owner of the land or a consumer who has entered into a contract with the contractor to have residential construction work carried out in Queensland
“properly terminated”[21] means lawfully under the contract or otherwise at law, upon the contractor’s default which extends to, but is not limited to:
(a) the cancellation or suspension of the contractor’s licence; or
(b) the death or legal incapacity of the contractor; or
(c) the insolvency of the contractor; or
(d) any breach of the contract by the contractor.
“residential construction work” relevantly means residential construction work as defined in section 10 of the Regulation.
[21]Ibid, p71.
In these proceedings there was no dispute that the Contract was for a fixed price, that the Homeowners were the insured under the Policy, that the Contractor was a contractor and that the Contract was for residential construction work.
The Homeowners rely upon sub-clause (d) of the definition of “properly terminated”.
Witnesses
In this matter three witnesses gave evidence at the hearing. Dr Ng and Mr Burgess for the Homeowners and Mr De Marco for the Contractor.
Mr De Marco's oral evidence was often contradictory with variously his written statement, contemporaneous documents including the Contract and other oral evidence he gave during the hearing. Generally, where there is a conflict, I prefer the evidence of Dr Ng, which was much more consistent with contemporaneous documents.
The Contractor says that Mr Burgess’ opinion as to the value of work performed by the Contractor should be disregarded and its valuation of work performed should be accepted on the basis that Mr Burgess was not independent. I accept that Mr Burgess, a quantity surveyor, retained by the Homeowners during the Contract to assess progress claims on their behalf is not a truly independent expert witness in these proceedings. At the hearing no party relied upon evidence by a truly independent expert witness. Whilst Mr De Marco, who gave evidence of his 30 years of experience in the industry, has relevant experience, he is clearly not independent, being a director of the Contractor. I take this into account in weighing the evidence. Generally, where there is a conflict, I prefer the evidence of Mr Burgess given Mr De Marco’s oral evidence was often contradictory to other evidence as referred to at [26]. Mr Burgess’ evidence was much more consistent with contemporaneous documents.
Contract
The evidence is that the Homeowners and the Contractor negotiated the terms of the Contract between March and May 2016. The written terms and conditions of the contract are contained in numerous documents including a formal instrument of agreement, special conditions, general terms and conditions, addendum documents prepared by the Contractor and drawings.[22]
[22]SOR7; a complete copy forms Exhibit 9.
This was a significant contract with a price more than $3,700,000, including provisional and prime sums in the amount of $652,500 (excl GST). The formal instrument of agreement described the works as ‘the Works and the work under this Contract comprise the construction of a premium quality new residential dwelling for occupation as per plans and specifications attached hereto and associated works as more particularly described in or reasonable to be inferred from the Contract documents’.[23] Item 3 of the Schedule described the works as ‘construction of a premium quality new residential dwelling for occupation as per plans and specifications attached hereto.’
[23]SOR7, p 95, clause 2.
The Contractor claimed that Dr Ng was the superintendent under the Contract. The Contractor’s proposed condition, which provided for a superintendent was agreed to be deleted in the signed Contract.[24] The Contractor’s position set out in the 22 May 2016 Emails that Dr Ng should take on the role, despite the Homeowners stating there should be no superintendent, was clearly rejected by the Homeowners and agreed to by the Contractor. Mr De Marco’s insistence that Dr Ng was the superintendent is contrary to the clear terms of the Contract and the agreed intentions of the parties.
[24]SOR7, p102 SC15, p142 (item 15).
Dr Ng took a keen interest in the execution of the work under the Contract, which in my view was consistent with that of a homeowner, and particularly one who had had an unfortunate experience with a previous builder, and who was seeking to ensure that works progressed in accordance with the terms of the Contract for construction of a premium quality new residential dwelling. There is no evidence before me that Dr Ng held any relevant qualifications or experience to undertake the role of superintendent. This position is also consistent with the express acknowledgement by the Contractor in the second set of special conditions that the Homeowners were relying on the Contractor’s advice, skill and judgement in the execution of the work under the contract.[25]
[25]Ibid, at p 99.
The evidence is, and I accept, that Dr Ng, who was living nearby, attended site or drove past the site most days to see whether the Contractor’s staff or subcontractors were on site and therefore inform herself whether works were progressing to some extent. Although Dr Ng on occasion referred to herself as the superintendent I am not satisfied this equates to undertaking the role of superintendent.[26] The Contract provided for weekly meetings.[27] Dr Ng’s attendance at these meetings and discussions about the works does not equate to undertaking the role of superintendent nor is there any evidence to support Mr De Marco’s evidence that it negated the Contractor’s obligations to comply with the terms of the Contract, which terms did not set out any rights or obligations of a superintendent.
[26]Exhibit 4, HN11.
[27]CSC14.
The Contractor essentially seeks to imply terms into the Contract. I am not satisfied that it is necessary to give the Contract business efficacy to imply into the Contract a term that Dr Ng was superintendent and in any event the term is contrary to the terms expressly agreed by the parties.[28]
[28]BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.
The Contract provided that the works were to commence on 23 May 2016, the construction period was 305 days[29] and practical completion was due 24 March 2017. The Contractor did not expressly allow for likely delays for inclement weather or any other likely delays. There is limited evidence as to how the 85 non-working days was calculated.
[29]SOR7, p 124, item 6. The period included 85 non-working days including weekends, RDOs, public holidays etc.
The Contractor provided a draft works programme which showed various elements of the work being completed over a 45-week period. The Contract qualified the Contractor’s document 7, works programme by providing[30] that the Contractor shall not depart from the draft works programme without the prior written consent of the Homeowners. The draft works programme highlighted three public holidays and identified a two-week Christmas break but indicated trades continuing during those two weeks.[31] A revised works programme dated 4 August 2016 is in evidence before me.[32] It indicates that excavation took 5 weeks longer than originally planned and that during the two-week Christmas break trades would not continue. Mr De Marco gave evidence that the 45-week construction period was not to commence until after rock excavation had been completed. The original draft programme clearly shows that excavation formed part of the 45-week programme. Mr De Marco’s oral evidence was that the programme allowance related to other excavation work. The Homeowners do not seek to dispute Mr De Marco’s evidence in this regard. The evidence is that an extension of time to 20 July 2017 was granted. This extension of time related at least in part to the excavation delay. The Homeowners rely upon other delays by the Contractor in progressing the works to support termination of the Contract.
[30]Ibid, p 103.
[31]Painter, Lift shaft rough-in and Roof sheeting.
[32]Exhibit 4, HN6, p152-p153.
Clause 17.3 of the general conditions provided that the Contractor must diligently carry out the work under this contract and must not, except as permitted by this contract, delay, suspend, or fail to maintain reasonable progress in the performance of that work.
Clause 26 of the general conditions, relevantly, provides:
26.1 If:
(a) a party is in substantial breach of this Contract; and
(b) the other party gives a notice to the party in breach identifying and describing the breach and stating the intention of the party giving notice to terminate the Contract if the breach is not remedied within 10 business days from the giving of the notice; and
(c) the breach is not remedied,
then, the party giving that notice may terminate this Contract by further written notice given to the party in breach and may recover from the party in breach all damages, loss, cost or expense occasioned to the party so terminating by or in connection with the breach or that termination and may set off such claim against payment otherwise due by the party so terminating.
26.2 The right to terminate under this Condition is in addition to any other powers, rights or remedies the terminating party may have.
26.3 Substantial breach by the Owner includes, but is not limited to:
(a) [deleted by special condition]
(b) failing to pay any money due and owing to the Contractor for 5 business days; and
(c) substantially or persistently obstructing the Contractor in the performance of the work under this Contract.
26.4 Substantial breach by the Contractor includes, but is not limited to:
(a) failing to perform the work under this Contract competently;
(b) failing to provide materials which comply with this Contract;
(c) unreasonably failing to replace or remedy defective work or materials;
(d) unreasonably failing to perform the work diligently or unreasonably delaying, suspending or failing to maintain reasonable progress.
The Tribunal has previously found that on a strict interpretation of clause 26.1 of the general conditions, the notice period of 10 business days is mandatory and that a party does not act unreasonably in issuing a notice of default with such a notice period.[33] The learned Member considered any obligation to act reasonably would attach to the termination rather than the notice of default.[34]
[33]Farrell Builders Pty Ltd & Anor v Hall & Anor [2018] QCAT 420.
[34] Ibid, [92].
The second set of special conditions to the Contract set out various warranties as follows:[35]
(a)the Contractor warranted to the Homeowners that it had carefully examined all information relevant to the risks, contingencies and other circumstances which could affect the contract price.
(b)the Contractor warranted to the Homeowners that it had visited and carefully examined the site and its surroundings and fully informed itself as to all patent site conditions.
(c)the Contractor warranted to the Homeowners that it had satisfied itself as to the correctness and adequacy of the contract price for the performance of its obligations under the contract or otherwise at law.
(d)the Contractor warranted that it would supply and execute items not expressly mentioned in the Contract but which were necessary or reasonably inferred for the satisfactory completion and performance of the works.
(e)the Contractor warranted to the Homeowners that it had satisfied itself of its ability to comply with all legislative requirements.
(f)the Contractor acknowledged that the Homeowners were relying upon the contractor’s advice, skill and judgement in the execution of the work under the contract.
[35]SOR7, p99.
Notices to Remedy Breach
The Parties issued several notices. The Homeowners contend that they rely upon each of the notices issued by them in terminating the Contract.
Homeowners’ Notice to Remedy Breach dated 22 September 2017(the September Notice)[36]
[36]SOR56, p592.
The September Notice contended that the Contractor was in substantial breach relying upon clause 3.1 and clause 26.4.
Clause 3.1 relevantly provides:
To the extent required by Schedule 1B of the QBCC Act the Contractor warrants that:
(a)the work under this Contract will be carried out in an appropriate and skilful way and with reasonable care and skill and reasonable diligence;
(b)……
(c)……
(d)the work under this Contract will be carried out in accordance with the plans and specifications and any other Contract documents described in Schedule item 15.
The Homeowners claimed that the Contractor had failed to carry out the works with reasonable diligence because of its failure:
(a)to adequately arrange trade contractors to ensure the timely completion of the works;
(b)to adequately maintain reasonable progress of the works;
(c)to adequately administer the Contract through the timely provision of notices; and
(d)to bring the works to practical completion by the date for practical completion. It claimed that the Contractor was approximately 182 days behind schedule, which entitled the homeowners to $91,000 in liquidated damages.[37]
[37]Clause 24.3 provides that the Homeowners were only entitled to deduct liquidated damages from the practical completion stage payment.
The Homeowners claimed that the Contractor had failed to construct the curtainwall in accordance with the approved plans.
The September Notice also claimed that the Contractor had unreasonably delayed the works by:
(a)requiring a letter from the Homeowners’ solicitor stating that it and its contractors are not responsible for future water entry along the eastern wall of Grid D at Garage Level above RL 34.05;
(b)requiring a letter from the Homeowners’ solicitor stating that the ground water at Mr Yeo's office area is not its responsibility;
(c)stating in its letter of 22 September 2017 that no work will start on the staircases until it receives a written letter from the Homeowners’ solicitor stating that the water entry is not its liability now or into the future,
in circumstances where there was no term in the Contract conferring these entitlements nor any entitlement at law.
The Homeowners also claimed that the Contractor had failed to appropriately administer the terms of the Contract in breach of its statutory obligations under the QBCC Act.[38]
[38]QBCC Act, Schedule 1B, s 40(2) and 42(1).
The September Notice called upon the Contractor to remedy the substantial breach within 10 business days and reserved the Homeowners’ rights including their rights available outside of the Contract. The Contractor responded by email on 24 September 2017 raising items for discussion.[39] Dr Ng gave evidence that despite the September Notice the Contractor did little to address the issues.[40]
[39]Exhibit 4, HN 25, p283-284.
[40]Ibid, [115].
The Homeowners did not take steps to terminate the Contract immediately after the notice period expired. The Homeowners’ former solicitors reserved the Homeowners’ rights in relation to the September Notice by letter dated 5 October 2017.[41]The QBCC submits, and I accept, that the Homeowners were required to terminate within a reasonable time of giving the September Notice otherwise they could not rely upon the claimed breaches in the September Notice to terminate the Contract without giving a further notice.
Contractor’s Notice to Remedy Breach dated 29 November 2017[42]
[41]Ibid, HN 36.
[42]SOR62, p611-612.
On 29 November 2017 the Contractor issued a Notice to Remedy Breach claiming that the Homeowners were in substantial breach by:
(a)persistently and unreasonably failing to make payment to the Contractor for progress claims issued for works undertaken in contravention of clause 19.1 of the contract specifically:
(i) progress claim 23 dated 15 September 2017;
(ii) progress claim 24 dated 7 October 2017;
(iii) progress claim 25 dated 28 October 2017;
(iv) progress claim 26 dated 17 November 2017;
(v) variation 1 in the sum of $128,792.95 for the curtainwall works;
(vi) variation 2 in the sum of $27,157.72 for the change to the level 4 media room to a bedroom with walk-in robe and bathroom;
(vii) variation 11 in the sum of $12,282.33 for the pelmets on level three and six including prime cost adjustments for electrical works;
(viii) variation 12 in the sum of $25,037.35 for one sided walls to bottom 4 levels;
(ix) variation 20 in the sum of $22,768.36 for the eastern block wall and redesign of the front entry stairs.
(b)Unreasonably interfering with the performance of the work in contravention of clause 13.4 of the Contract by attending site and attempting to give direct instruction to the Contractor’s subcontractors and employees in contravention of clause 16.1 of the Contract and attempting to entice the Contractor’s subcontractors to work directly.
(c)Unreasonably withholding or failing to approve extension of time (EOT) claims as follows:
(i) EOT claim 2 dated 28 January 2017;
(ii) EOT claims 3-11 each dated 29 October 2017;
(iii) EOT claims 12-16 each dated 30 October 2017.
On 29 November 2017 the Contractor issued a notice of suspension[43] based on continued non-payment of progress claims and variations issued in accordance with the Contract. The notice stated that no work will be re-commenced at the property until the disputes about the payments have been resolved and payment has been received.
[43]SOR40, p 437.
The Homeowners disputed the Contractor’s contentions that amounts claimed were payable and disputed the Contractor’s entitlement to suspend works for non-payment or any other basis.[44]
[44]Exhibit 4, HN49.
The Homeowners contend that the suspension was unlawful and a repudiation of the Contract.
The Contractor withdrew both of its notices by letter dated 12 December 2017.
Homeowners’ Notice to Remedy Breach dated 29 November 2017 (November Notice)[45]
[45]SOR63, p614.
The November Notice claimed that the Contractor was in substantial breach by stating in an email on 28 November 2017 that it would be stopping work until the balance of the purported outstanding funds totalling $545,610.21 is paid and by not attending site on 29 November 2017 to continue work under the Contract.[46]
[46]Exhibit 4, HN48.
The Homeowners say, and I accept, that the Contract provides no right for the Contractor to delay, suspend or fail to maintain reasonable progress of the works under the Contract.
The November Notice stated that the Homeowners considered the Contractor's refusal to attend site constitutes substantial breach of clause 26.4(d) of the Contract being an unreasonable failure to perform the work under the Contract diligently or unreasonably delaying, suspending or failing to maintain reasonable progress of the works under the Contract and constitute repudiation of the Contract at common law.
The November Notice called upon the Contractor to remedy the substantial breach within 10 business days and the Homeowners reserved their rights including rights available outside of the Contract.
As stated earlier in these reasons, the Contractor withdrew both of its notices by letter dated 12 December 2017. It advised that its contractors would recommence the next day and foreshadowed that the works would be progressed until 12pm 22 December 2017 when the site would be shut down for Christmas with works to recommence on 8 January 2018.[47]
[47]SOR65, p621.
The Homeowners disputed that the Contractor was entitled to shut down the site until 8 January 2018.
On 12 December 2017 the Contractor also withdrew progress claim 27 and submitted progress claim 27A, which removed its claim for disputed variations.[48]
[48]SOR65, p619.
The Contractor submits, and I accept, that the contractual validity and the quantum of the variations are not directly relevant to these proceedings because the Contractor has withdrawn its payment claims. The Contractor concedes that the variations were not undertaken in accordance with the terms of the Contract nor in accordance with Schedule 1B of the QBCC Act.[49]
[49]Final submissions filed 9 April 2021, [44] – [45].
The Homeowners did not take steps to terminate the Contract immediately after the notice period expired. The QBCC submits, and I accept, that the Homeowners were required to terminate within a reasonable time of giving the November Notice otherwise they could not rely upon the claimed breaches in the November Notice without giving a further notice. In any event, given the Contractor’s withdrawal of its notices and the submission of Progress Claim 27A, the Contractor had at least in part remedied the claimed breaches.
Homeowners’ Notice to Remedy Breach dated 19 December 2017 (December Notice)[50]
[50]SOR66, p622.
The Homeowners claimed the Contractor was in substantial breach by:
(a)unreasonably failing to perform the work diligently or unreasonably delaying, suspending or failing to maintain reasonable progress;
(b)failing to carry out work under this Contract competently:
(i) failing to construct the curtainwall in accordance with the approved plans;
(ii) claiming non-compliant variations;
(iii) claiming non-compliant extensions of time;
(c)unreasonably failing to replace defective work or materials;
(d)failing to hold the current, active and appropriate licence to perform the works under the Contract;
(e)failing to comply with continuous indemnity provided by clause 11.1 of the Special Conditions of Contract.
The Homeowners purported to terminate the Contract on 8 January 2018 both on the basis they say the substantial breaches in the December Notice had not been remedied and as an acceptance of the Contractor’s repudiation at common law.[51]
[51]SOR69, p634.
The Homeowners relied upon the Contractor’s breach of clause 26.1(c) of the Contract in that they say the Contractor had:
(a)unreasonably failed to perform the work diligently and/or unreasonably delayed, suspended and/or failed to maintain reasonable progress;
(b)failed to carry out work competently;
(c)failed to withdraw demands for money owing in respect of the curtain wall;
(d)failed to demolish and dispose of the curtain wall structure that is not required by the plans that received approval of the Planning & Environment (P&E) Court;
(e)failed to rectify defective swimming pool works;
(f)failed to comply with the indemnity for legal costs in special condition clause 11.1.
Later that day the Contractor contended that the Homeowners’ termination was a repudiation of the Contract and purported to accept the repudiation and terminate the Contract.[52]
Did the Homeowners properly terminate the Contract lawfully under the contract or otherwise at law, upon the contractor’s default?
[52]SOR70.
I find that the Homeowners properly terminated the Contract lawfully under the Contract or otherwise at law upon the Contractor’s default for the reasons set out below.
The Contractor says that the Homeowners did not properly terminate the Contract because:
(a)The Homeowners were in breach for failing to pay the Contractor amounts due and owing; and
(b)the Contractor was not in breach of any term of the Contract which entitled the Homeowners to terminate.
Was the termination invalid because the Homeowners were in substantial breach for failing to pay amounts due and owing?
I find that the Homeowners were not in substantial breach of their obligation to pay amounts due and owing at the time the December Notice was given nor as of 8 January 2018, the time they gave the notice of termination. I therefore find that the termination was not invalid on that basis.
The parties did not adopt the usual staged milestone progress claim methodology. Item 8B of the Schedule stated, ‘refer Document 5’. Document 5 set out a ‘typical projected cash flow and the respective payment dates’. The Contract provided that nothing in document 5 ‘shall entitle the Contractor to extensions of time to the date for Practical Completion, delay costs or for any other adjustment to the Contract Price. Further, nothing in this document shall entitle the Contractor for payment for work that has not been performed. It is an estimate only.’ In my view this demonstrates a clear intention by the parties that the Contractor’s entitlement to progress payments was conditional on actual performance of the work rather than a proportionate amount based simply on effluxion of time irrespective of work performed.
The Contract at CSC1, provided ‘progress claims presented every 21 days, paid within seven days of presentation’.[53] Although the parties discussed the Homeowners’ intentions to engage a quantity surveyor to assess the progress claims before the Contract was signed, the Contract did not formalise such a process.[54]
[53]SOR 7, p102 and p141.
[54]22 May 2016 Emails.
The replacement of standard items 8A and 8B of the schedule with the 21-day payment claim system is significantly less precise than had the standard terms been adopted.
The ‘new schedule 8B’ sits uncomfortably with the detailed procedures for making claims and raising and resolving disputes set out in clause 19 of the general conditions. The process does not, as clause 19.1(b) of the general conditions states, require the Contractor to establish that any ‘stages’ have been completed in the usual sense of the clause.
Although the precise rights and obligations of the parties in relation to submitting progress claims and their assessment were not clear in the Contract, Mr De Marco did not dispute that it was agreed when the Homeowners engaged a quantity surveyor to assist to assess each progress claim that the methodology was that the Contractor would submit progress claims approximately 3 weekly setting out the value of work performed by trade for work claimed to be performed since the last progress claim. The progress claim would be assessed by the quantity surveyor based on the percentage value of work performed and that amount was payable by the Homeowners.
Mr De Marco conceded that this agreed process was carried out from progress claim 4 onwards. The first progress claim was for the deposit as agreed in item 2 of the Schedule of the Contract so that only two claims for work performed were made before Mr Burgess took on the role of assessing each further progress claim.
Until progress claim 27A neither party sought to invoke the dispute resolution process set out in clause 19 of the general conditions in relation to progress claims.
The Contractor contends that the Homeowners were not entitled to terminate on 8 January 2018 as they were in substantial breach of the Contract for failing to pay progress claim 27A. It says the amount claimed in progress claim 27A was due and owing:
(a)as the Homeowners failed to dispute progress claim 27A within the time allowed;
(b)as the amount claimed in progress claim 27A was validly due and owing.
It was not disputed that the Homeowners essentially disputed progress claim 27A on 20 December 2017 and that on a strict interpretation of clause 19 of the general conditions it called for a dispute notice no later than 19 December 2017.
What is the consequence of the Homeowners failing to dispute progress claim 27A within the time allowed?
I am not satisfied that the Contractor is entitled to require strict compliance with clause 19 of the general conditions.
The Contractor says that the Homeowners were required to dispute the claim delivered on 12 December 2017 by 19 December 2017, but the notice arrived on 20 December 2017[55] such that the amount claimed was essentially deemed due and owing.[56]
[55]Exhibit 4, HN58.
[56]Clause 19.1(h).
As set out earlier at [37], the Contract provides that the Homeowners are in substantial breach if they fail to pay any money due and owing for five business days.[57] The Contractor says that the amount claimed was due and owing from 20 December and therefore had been owing for a period of over five business days as at 8 January 2018. I note that the Contractor represented (on its face) that progress claim 27 dated 7 December 2017 sent by email on 10 December 2017 was due for payment on 20 December 2017[58] and that it was withdrawn and replaced with progress claim 27A dated 12 December 2017.[59]
[57]Clause 26.3(b).
[58]Exhibit 6, attachment PB 26.
[59]Ibid, attachment PB 27.
By progress claim 27A the Contractor claimed the value of work completed to date was $3,001,373 (excl GST) or $3,301,510 (incl GST) against which it offset the amount said to have been previously paid, in the sum of $3,063,327 (incl GST). It claimed an amount of $238,183 (incl GST). It states, ‘Could you please pay by Friday’.[60] As 12 December 2017 was a Tuesday, this request was apparently to pay the progress claim by Friday 15 December 2017. This request was essentially for early payment as it was, on a strict interpretation, contrary to CSC1, which provided for payment within 7 days and clause 19.1, which provided for payment of undisputed amounts within 5 business days.
[60]Ibid, attachment PB27, p 422.
The difference between progress claims 27 and 27A is that the Contractor had removed the claimed value for disputed variation works and removed from amounts acknowledged as paid the amount, which had previously been allocated to variations. In these proceedings the Contractor did not address me on the basis upon which it contends that it was entitled to treat payments in that way.
The evidence is that progress assessment 24 was issued on 20 December 2017 based on an inspection on 19 December 2017.[61] Mr Burgess’ assessment was that the value of total work completed, excluding the disputed variations removed, was $2,765,294.73 (excl GST). On my calculation this equates to $3,041,824.20 (incl GST). The Contractor seeks to discredit Mr Burgess’ assessment on the basis it asserts that Mr Burgess’ assessment was on a cost to complete basis.
[61]Ibid, attachment PB28.
Mr Burgess gave clear evidence, and I accept, that his original assessment was not on a cost to complete basis but rather he subsequently reassessed the value of the work completed on a cost to complete basis, which confirmed his original assessment as to the value of work completed contained in progress assessment 24. In the absence of contrary independent evidence and for the reasons set out at [27], I accept Mr Burgess’ evidence of the value of the works completed.
From this amount Mr Burgess deducted amounts claimed by the Homeowners, being a credit for the staircase work removed from the Contract at the Contractor’s insistence, liquidated damages and legal costs.
By special condition, clause 19(j) was inserted into the Contract and provided that the Homeowners may deduct from moneys due to the Contractor any sum they claim is due and payable from the Contractor arising out of or in connection with the Contract or otherwise at law.
I am not satisfied the Homeowners were entitled to deduct liquidated damages from this progress claim. Clause 24.3 provides that the Homeowners were only entitled to deduct liquidated damages from the practical completion stage payment. Deduction of liquidated damages from prior payment claims was not authorised by the Contract.
I do not consider whether the other deductions were authorised by the Contract because I find that the value of the work was less than the amount previously paid by the Homeowners, even as stated by the Contractor in the claim as referred to in [82], and therefore no amount was payable by the Homeowners. I also do not consider whether the Contractor was entitled to apply monies previously paid by the Homeowners against variations, claims for which were withdrawn. The Contractor did not clearly set out a basis upon which it contended it was entitled to treat amounts paid in this way.
The Contractor seeks to strictly enforce clause 19 of the Contract. It says that Progress claim 27A complied with the requirements of clause 19.1(d) of the Contract because the claim readily identified the value of the work completed[62] and the cover letter[63] specifically identified the time within which the claim was required to be paid.[64]
[62]Satisfying the obligation to submit the claim in QBCC Form 3 or similar appropriate document.
[63]Exhibit 8, attachment RPD22, p 58.
[64]Satisfying the obligation to submit the claim in QBCC Form 4 or similar appropriate written notice.
The evidence is that the Contractor did not itself strictly comply with clause 19 in presenting the progress claims, including there is no evidence that the progress claims including progress claim 27A were accompanied by a notice of dispute as required by clause 19.1(d) or similar appropriate written notice nor is there any evidence that the Contractor informed the Homeowners that it required strict compliance with the Contract. The letter which enclosed Progress Claim 27A did not clearly call for strict compliance.[65] I am not satisfied that the cover letter was a ‘similar appropriate written notice’ to QBCC Form 4. It did not contain the same or similar information.
[65]Exhibit 8, attachment RPD22, p58.
There is no evidence before me that the parties followed the clause 19 procedures at any other time. To the contrary the evidence is that the Contractor regularly disregarded the terms of the Contract, in particular, in relation to progress claims, variations and extensions of time. Mr De Marco conceded as much in his oral evidence and in correspondence.[66]
[66]Exhibit 6, attachment PB26.
The evidence before me is that there were other occasions of delay in conducting the assessment of progress claims and therefore payment.[67] There is no evidence before me that the Contractor put the Homeowners on notice that it required strict compliance. I am not satisfied that the Contractor is entitled to require the Homeowners to strictly comply with clause 19 in respect of progress claim 27A in the absence of putting them clearly on notice that strict compliance was required.
[67]E.g., Progress Claim 18 dated 2 June 2017. Exhibit 6, attachment PB 17; Progress Claim 19 dated 25 June 2017, Exhibit 6, attachment PB18.
Alternatively, was the amount claimed in progress claim 27A validly due and owing?
I find that the amount claimed in progress claim 27A was not validly due and owing.
The Contractor says that progress claim 27A was in any event due and owing and sought to discredit Mr Burgess’ evidence as to valuation of work. At the hearing Mr De Marco conceded that the amount owing was to be derived from the amount assessed by Mr Burgess as to the value of the works. I am not satisfied that the Contractor is entitled to resile from the agreed methodology.
As previously stated, I accept Mr Burgess’ evidence as to the valuation of the work. The value of the work performed as assessed was less than the amount previously paid on any parties’ submissions, therefore no amount was due to the Contractor by the Homeowners in respect of Progress Claim 27A.
The Homeowners were not in breach for failing to pay the amount claimed in progress claim 27A nor were they in breach for failing to pay any amount in respect of progress claim 27A. The Homeowners’ termination was not invalid on that basis.
Was the Contractor in breach of the Contract? Was the breach a substantial breach? Was the substantial breach not remedied by 8 January 2018 entitling termination?
I find the Contractor was in substantial breach of the Contract as of 19 December 2017 and the breach was not remedied within 10 business days. I find that the Homeowners were entitled to terminate the Contract by notice on 8 January 2018.
There is no evidence that the Contractor attempted to remedy the claimed breaches within the 10-day period nor ask for an extension of time within which to do so. It denied it was in breach or claimed any breach did not give rise to a right to terminate.
Although the notice period operated over the Christmas period, the Contractor had been previously put on notice in the September and November Notices of the substance of the breaches claimed. In those circumstances, I am satisfied that the Homeowners’ complied with any obligation on them to act reasonably, which obligation attached to the termination rather than issuing the notice of default.
Was the Contractor in breach of its obligations by unreasonably failing to perform the works diligently or unreasonably delaying or failing to maintain reasonable progress as of 19 December 2017? Was any such breach a substantial breach?
I find that as of 19 December 2017 the Contractor was in substantial breach of its obligations to progress the works under clause 3.1(a) and clause 17.3 of the Contract. I find that the Contractor unreasonably failed to perform the works diligently and unreasonably failed to maintain reasonable progress. The delay was unreasonable in the circumstances. I find that the Contractor did not remedy that breach or commence to remedy that breach by 8 January 2018.
The Homeowners rely upon:
(a)Clause 3 by which the Contractor warranted that the works will be carried out in an appropriate and skilful way and with reasonable care and diligence as set out at [42]; and
(b)Clause 17.3 at set out at [36].
The Contractor contends that it did not fail to progress the works with reasonable diligence and denied it was in substantial breach.[68] The Contractor says that it was delayed by various factors and that none can be properly attributed to the actions of the Contractor. In particular, it points to ‘directions’ by the Homeowners to vary the works, the failure of the Homeowners to provide an indemnity in relation to the staircase works and due to the issues in relation to the council approval of the curtain wall.
[68]SOR68, p630.
Breach of a warranty may amount to a substantial breach if it is sufficiently serious. Breach of an essential term is not necessarily required.[69]
[69]Mousa & Anor v Vukabratich Enterprises Pty Ltd & Anor [2019] QSC 49, [195].
The Contract, by agreement of the parties, sets out a regime by which an entitlement to terminate for ‘substantial’, as distinct from trivial breaches, of the terms of the Contract may arise if the recipient of the notice does not within the time allowed rectify or substantially commence to rectify the claimed breaches, which right is in addition to the parties’ rights at common law.[70] The Tribunal has previously accepted, and I agree, that a ‘substantial breach’ in the context of a clause such as clause 26 is distinguishable from one that would justify a common law determination.[71]
[70]Mazelous Pty Ltd v Herberton Shire Council [2003] 1 Qd R 174, 182-183; Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63, [36].
[71]Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63.
Given the types of matters listed in clause 26, I am satisfied that a substantial breach is one that is not trivial or of inconsequential significance but is not required to equate to a breach of a condition, which would enliven a right to terminate at common law. Each of the matters in clause 26.4 which are defined as a substantial breach is ‘a significant matter that a reasonable reader would understand to involve a real and significant risk that the owner will not get what he bargained for from the builder’s performance of the contract.’[72]
[72]Stojanovski v Australian Dream Homes [2015] VSC 404, [55].
It is necessary to consider the significance or consequences of the conduct alleged to determine whether a breach is substantial in each case.
The Homeowners point to several matters as evidence of the Contractor’s breach of its obligations.
Suspension and the Christmas shutdown
The Contractor contends that the period during which the works were suspended was between 29 November 2017 and 12 December 2017, the suspension had been withdrawn and the Contractor had returned to work such that the Contractor was not in breach as of 19 December 2017. The Contractor also disputed that it was not entitled to the industry practise of a Christmas shutdown.
The evidence is that although the Contractor had withdrawn the suspension, the Contractor’s foreman did not remain on site to continue work on 18 December 2017. There is some evidence that Mr De Marco had instructed him not to work at the site pending payment from the Homeowners.[73] There is also some evidence that the Contractor’s foreman did not attend site on 8 January 2018 because he was instructed by Mr De Marco not to do so.[74] Whilst this is hearsay evidence it is consistent with Mr De Marco’s oral evidence that he told his foreman not to attend site.[75]
[73]Exhibit 4, HN57.
[74]Exhibit 4, HN61.
[75]Transcript 2-44, line 39.
There is no evidence before me that the Contractor accelerated the works to address delay caused by the suspension. The Contractor contends that it was unable to do so because the Homeowners had not paid for the disputed variations. I address the suspension in more detail later in these reasons from [162].
The Contract unlike some other standard form building contracts did not expressly provide that the Contractor was entitled to an extension of time for the ‘industry shutdown’ if it could not have reasonably been foreseen at the time of contracting and included in the construction period. There is no clear evidence that the Contractor allowed the 2016 ‘industry shutdown’ as non-working days. To the contrary, the 45-week programme, which formed part of the Contract, which was not to be departed from without the written consent of the Homeowners, showed that work would continue during the 2016 ‘industry shutdown’. I am not satisfied that the Contract can be construed to entitle the Contractor to the 2017 ‘industry shutdown’.
I note that prior to termination, the Contractor did not seek an extension of time for the 2017 ‘industry shutdown’ as a delay not reasonably foreseeable and beyond its reasonable control.[76]
[76]SOR 7, cl 23.1(b).
Mr De Marco’s oral evidence was that despite the Contractor’s lawyers writing to the Homeowners, on his instructions, advising that the site would be shut down over the ‘industry shutdown’ that he, his son who was the administrator, his brother, who was the foreman, and his carpenters continued to work on site until 8 January 2018 except for public holidays. His evidence was that he went to the site daily during this time. Mr De Marco reluctantly conceded that other than some correspondence sent during the shutdown period there was no evidence in his statement to support his contention that work continued. Mr De Marco’s son and brother and the Contractor’s carpenters did not provide statements of evidence in these proceedings. There was no evidence to support Mr De Marco’s evidence that work continued.
I am not satisfied that any work or any significant work continued on site during this time. Mr De Marco conceded that subcontractors did not attend site during this period to progress the works during this time. His evidence was that the electrician, plumber and cabinet maker attended site to carry out measurements to enable work to continue after the industry shutdown.
Failure to complete the works by the date for practical completion and the works being significantly delayed
The undisputed evidence is that Practical Completion was not achieved by 24 March 2017, nor by 20 July 2017 nor by the time the Contract was terminated on 8 January 2018.
The Contractor submits that although it terminated its expert’s engagement, its expert had a duty to the tribunal to comply with the directions to provide an amended draft joint report and that both experts misunderstood their obligations. I accept that experts have a separate duty to the Tribunal. This is not an application for the Contractor’s expert to pay costs.
The starting point is that parties are to bear their own costs,[167] however, the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.[168] In deciding whether to award costs the Tribunal may have regard to factors set out in section 102(3) of the QCAT Act, including whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding including as mentioned in section 48(1)(a)-(g).[169]
[167]QCAT Act, s 100.
[168]Ibid, s 102(1).
[169]Ibid, s 102(3)(a).
Section 48 of the QCAT Act provides that if the Tribunal considers a party is acting in a way that unnecessarily disadvantages another party including by not complying with a Tribunal order or direction without reasonable excuse[170] then it may make an order under section 102 against the party causing the disadvantage to compensate another party for any reasonable costs incurred unnecessarily.
[170]Ibid, s 48(1)(a).
I am satisfied that the Contractor has acted in a way that unnecessarily disadvantaged the Homeowners.
The evidence is, and I accept, that the Contractor’s expert’s conduct resulted in non-compliance with a Tribunal direction. I find that it is more likely than not that the Contractor’s conduct in:
(a)instructing its expert to do no further work; and
(b)terminating its expert’s engagement in these proceedings,
resulted in the non-compliance with a Tribunal direction.
The Contractor did not seek to have the orders in relation to the joint report varied.
The Contractor says it has also expended costs, which have been thrown away. The Contractor’s decision to disengage its expert resulted in the costs it expended being thrown away.
If the Tribunal makes a costs order it must fix costs if possible.[171]
[171]Ibid, s 107.
Attached to Mr Pryde’s affidavit are itemised tax invoices for work performed by Mr Burgess which total $6,930 (incl GST).[172] Having regard to the itemisation, I accept the costs were reasonably incurred and were thrown away. I fix the costs in the amount of $6,930 (incl GST).
[172]Affidavit Julian Pryde, attachment JGP13.
Other Costs
As the parties were legally represented in the proceedings, it is appropriate to make directions to allow the parties to seek costs of the proceedings not addressed above.
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