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Queensland Judgments
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  • Unreported Judgment

Patel v QBCC

 

[2019] QCAT 223

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Patel v QBCC & Anor [2019] QCAT 223

PARTIES:

Toshak Patel

and

HINA PATEL

 

(applicants)

 

v

 

Queensland Building and Construction CommisSion

(first respondent)

 

Donald Ian Neander

(second respondent)

APPLICATION NO/S:

GAR218-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

12 August 2019

HEARING DATE:

15 April 2019; 10 May 2019; 18 July 2018

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

  1. The decision of the Queensland Building and Construction Commission made on or about 4 June 2018 is set aside.
  2. Toshak Manubhai Patel and Hina Toshak Patel were entitled to a make a claim for assistance on or about 2 February 2018 pursuant to s 7(1) of Schedule s 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld) for the reasonable cost of completing their dwelling house situated at 28 Parkview Place, Helensvale.
  3. The application for miscellaneous matters (costs) dated 9 May 2018 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the applicants were entitled to make a claim for assistance pursuant to s 6 of the Queensland Building and Construction Regulation 2018 – where the first and second respondents allege that the building contract was not validly terminated by the applicants – where the applicants have made an application for costs pursuant to s 102 of the Queensland Civil and Administrative Act 2009 for an adjourned hearing date.

Queensland Building and Construction Commission Act 1991 (Qld), s 67X,

Queensland Building and Construction Regulation 2018 (Qld), s 4(1)(a), s 7, Schedule 6 – s 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24(1)(b), s 86, s 87, s 100, s 102

The Commonwealth of Australia v Verwayen (1990) 170  CLR 395

APPEARANCES & REPRESENTATION:

 

Applicants:

J Moxon, of counsel

First Respondent:

S Monaghan, of counsel

Second Respondent:

A Purcell, solicitor of Piccardi Legal

MATERIAL AND DOCUMENTS

#

Exhibit

Dated

Filed

1

Witness Statement of Toshak Manubhai Patel

05/11/18

06/11/18

2

First Supplementary witness statement of Toshak Manuhai Patel

14/12/18

18/12/18

3

Witness Statement of Hina Toshak Patel

05/11/18

06/11/18

4

Witness Statement of Toshak Manubhai Patel

16/01/19

17/01/19

5

Application for review of a decision

29/06/18

29/06/18

6

Order of Member Kent

29/11/18

 

7

Statement of Reasons of Queensland Building and Construction Commission for decision of 4 June 2018

25/09/18

25/09/18

8

Responses from Donald Ian Neander

 

21/12/18

9

Witness Statement of Toshak Manubhai Patel

06/05/19

07/05/19

10

Witness Statement of Donald Ian Neander

29/04/19

 

11

Application for miscellaneous matters (costs of adjournment of hearing date 15 April 2019)

09/05/19

09/05/19

12

Affidavit of Lachlan Vincent Amerena in support of application costs, miscellaneous matters (costs of adjournment)

09/05/19

09/05/19

13

Bundle of invoices various dates

 

 

 

Submissions of Parties

Dated

 

 

Submissions of the Applicants

15/04/19

 

 

Supplementary Submissions of the Applicants

09/05/19

 

 

Submissions of First Respondent

09/05/19

 

 

Submissions of First Respondent in response to the Applicant’s application for miscellaneous matters (costs)

18/07/19

 

 

Submissions of Second Respondent

09/05/19

 

 

Submissions of the Applicants

01/08/19

 

 

Submissions of the First Respondent

01/08/19

 

REASONS FOR DECISION

Background

  1. [1]
    Tosak Manubhai Patel and Hina Patel (‘the Patels’) are the registered proprietors of land situated at 28 Parkview Place, Helensvale more particularly described as lot 700 on Survey Plan 168246 (‘the property’)
  2. [2]
    From early 2017 the Patels negotiated with Donald Ian Neander (‘Neander’) to erect a dwelling house on the property. Subsequently the property was handed over to Neander to commence work on the erection of the dwelling house. At this stage no formal building contract had been entered into between the Patels and Neander.
  3. [3]
    In September 2017 the Patels and Neander entered into a Housing Industry Association (‘HIA’) Building Contract (‘building contract’) and backdated the building contract to 3 May 2017. A copy of the building contract is annexure 23A to the witness Statement of Toshak Manubhai Patel dated 5 November 2018 and filed 6 November 2018 (Exhibit 1). The building contract was lodged with Queensland Building and Construction Commission (‘QBCC’) and the necessary insurance premium was paid.
  4. [4]
    Throughout August to November 2017 the Patels raised concerns with Neander about the progress of the work, the quality of the work and his invoicing practices. These concerns culminated in the discussions and meeting between the Patels and Neander regarding the issuing of invoice 104 for $12,000 dated 17 November 2017 and the concrete pour scheduled for 21 November 2017
  5. [5]
    It is clear that, in around November 2017, Neander had a cash flow problem and his paperwork was in a state of disarray. Neander advised the Patels that the work could only proceed if the Patels paid invoice 104 in full. I will discuss the circumstances of the concrete pour of 21 November 2017 and invoice 104 later as this is the central issue in these proceedings. At this point it is sufficient to say that the cost of the concrete for the pour on 21 November 2017 was paid by the Patels directly to the supplier of the concrete, Nucon Concrete. The total amount paid for the concrete was $9,114.60.
  6. [6]
    The issue of invoice 104 was discussed by the Patels and Neander on site on 20 November 2019. This conversation was recorded by Hina Patel and a transcript of the conversation is annexure 40 to the witness statement of Toshak Manubhai Patel filed 6 Deecmber2018- Exhibit 1. It is clear from this conversation that there was consensus between the parties that the Patels would pay for the cost of the concrete for the pour to take place on 21 November 2018 and the parties would undertake a reconciliation of all invoices paid by the Patels to Neander.
  7. [7]
    The Patels met with Neander on 22 November 2017. The Patels were concerned with the invoicing of Neander, the value of the work undertaken compared to the amount invoiced by Neander, the quality of the work and Neander’s ability to complete the work on time. At this meeting Neander did not have any reconciliation of the invoices and his invoices were disorganised and in no particular order. In regard to the Patels paying further monies to Neander no real consensus was reached between the parties because of the defect and time issues raised by the Patels and the disorganised state of Neander’s invoicing.
  8. [8]
    There were further emails and correspondence between the parties and Neander claimed a variation on 30 November 2017. On 28 November 2017 the Patels wrote to QBCC raising concerns. On 6 December 2019 the Patels again met with Neander. This meeting was recorded by Hina Patel, a transcript of this conversation is annexed to Witness Statement of Toshak Manubhai Patel filed 6 November 2018 Exhibit 1. It was apparent at this stage that Neander was having difficulty obtaining credit and he was having difficulty funding the completion of the works.
  9. [9]
    One of the main concerns of the Patels was to have Neander provide a reconciliation of the work completed compared with the amount paid by the Patels, supply of material that had been paid for by the Patels, rectification of defects, the cost to complete the house and when the works could be completed. Neander advised the Patels that he would not continue with the work unless the Patels paid him more money.
  10. [10]
    The Patels then proposed that a project manager may be able to resolve the issues between the Patels and Neander. Accordingly the Patels arranged for Shane Sharpin, a project manager, to attend a meeting between the Patels and Neander on 8 December 2017. This meeting was recorded by Hina Patel and the transcript of the conversation is annexed to The First supplementary Witness Statement of Toshak Manubhai Patel filed 18 December 2018 Exhibit 2. In this meeting the same issues were ventilated by Neander as he had outlined in previous discussions. That is, Neander had a cash flow problem and he could only continue if the Patels paid more money for future expenses. At this meeting Neander agreed to provide an updated reconciliation and “break up” of costs to complete the works. Neander also agreed that the site needed cleaning.
  11. [11]
    Mr Patel met with Neander on site on 11 December 2017. He did not have the updated reconciliation and “break up” referred to previously. At this meeting Neander agreed to organise rubbish removal. Neander left the site when Mr Patel refused to pay Neander any further money. Except for the removal of rubbish, no further work was undertaken on the works by Neander after 11 December 2017.
  12. [12]
    Although QBCC were in communication with the parties at this point of time no resolution was reached. In an email from QBCC to Patel dated 12 December 2017 QBCC enclosed a response to QBCC from Neander. A copy of this email is attachment 45 to Witness Statement to Toshak Manubhai Patel filed 6 December 2018 - Exhibit 1. This response stated ‘until some resolution about the payment of monies can be resolved I will not proceed with any more work’. In this response Neander did not specifically mention any outstanding invoices such as invoice 104.
  13. [13]
    On 14 December 2017 Mr Patel sent 3 emails to Neander regarding the delivery of remaining Ecoblocks to the site, temporary fencing of the site and some defective work (attachments 46, 47 and 48 to the witness statement of Toshak Manubhai Patel dated 6 November 2018 - Exhibit 1). Neander did not respond to these emails.
  14. [14]
    On 15 December 2017 the Patels’ lawyer (‘Horsey’) sent a Notice to Remedy to Neander to remedy alleged breaches of the building contract by 3 January 2018. Neander’s lawyer (‘Williams’) requested an extension of this date until close of business 12 January 2018 to respond to the Notice to Remedy. No response was received from Neander or his lawyer by 12 January 2018 and on 16 January 2018 Horsey issued a Notice of Termination of the building contract.
  15. [15]
    On 17 January 2018 Williams wrote to Patel’s lawyer stating that the contract was not properly terminated. This email did not contain any reference to invoice 104 or that any monies were owing under invoice 104.
  16. [16]
    On or about 2 March 2018 Williams wrote to Horsey. This correspondence, dated 1 March 2018, included a reconciliation of payments, a demand for payment of some $23,635.17 and outlined specific invoices (attachment 54 to the witness statement of Toshak Manubhai Patel filed 6 November 2018 - Exhibit 1). There was no mention of invoice 104 or any monies owing under invoice 104 in this demand. The demand included a demand to pay invoices 107, 108, 109, 110, 111, 112, 114,115 and 116. These invoices were not presented by Neander to the Patels before the termination of contract on 16 December 2017.
  17. [17]
    On or about 2 February 2018 the Patels lodged a claim dated 30 January 2018 with QBCC for completion of the dwelling house. This claim and annexures to the claim are enclosed in the Statement of Reasons of QBCC dated 25 September 2018: Exhibit 7, annexures SOR 1-14. The annexure SOR 1 includes certain invoices of Neander and includes invoice 104. The claim alleges defective and incomplete work.
  18. [18]
    On 27 February 2018 Williams wrote to QBCC advising that Neander asserts that he is owed money and the amount is being calculated and will be available at the end of the week. On or about 2 March 2017 Williams wrote to QBCC advising that Neander has calculated the indebtedness and attached a schedule of alleged monies owed to Neander by the Patels: Annexure SOR 17 to the Statement of Reasons of QBCC dated 25 September 2018 - Exhibit 7. This schedule, dated 1 March 2018, is the same schedule that was provided to Horsey by Williams on 2 March 2018. It contained no reference to invoice 104 or any monies owing under invoice 104.
  19. [19]
    On 3 April 2018 QBCC wrote to Mr Withers, who was acting as a consultant to the Patels declining their application. The reasons for the decision were:
    1. (a)
      Breaches of Work Health and Safety Act 2011 (Qld) – not substantiated;
    2. (b)
      Delay in works by three months, no work since 22/11/2017 – work continued after 22/11/2017 albeit on a limited basis;
    3. (c)
      Non-delivery of building material and products – defective work – allegations not supported by evidence;
    4. (d)
      Incorrect invoicing procedures – owners’ (Patels) conduct appears contrary to the allegations and the owners had made previous payments pursuant to this system;
    5. (e)
      The owners (Patels) were in substantial breach of the building contract by not having paid the contractors invoices. That is, no party is entitled to give a notice to remedy whilst they are in substantial breach of the building contract. The invoices quoted were 104 (part), 107, 109, 110 and 112.
  20. [20]
    On 1 May 2018 the Patels applied for an internal review of the QBCC decision of 3 April 2018 pursuant to s 86A of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). By a decision dated 1 June 2018, QBCC advised the Patels on or about 4 June 2018 that because the internal reviewer did not decide the application for internal review within the required period under s 86C of the QBCC Act, they are taken to have made the same decision. Therefore it is the decision of the QBCC to decline the Patels’ claim on or about 4 June 2018 (the decision) that is the subject of these proceedings.
  21. [21]
    As part of these proceedings on the 21 December 2018 Neander filed a document described as Reply to Expert Building Report which is Exhibit 8. On page 4 of this document is point 3: ‘Payments not completed – in dispute’. Invoices 108 to 112 (inclusive) and invoices 114 to 116 (inclusive) are listed under this heading. However, invoice 104 is not mentioned in this document.
  22. [22]
    The matter came before me on 15 April 2019 where all the parties held discussions outside the hearing room for most of the day and eventually agreed that all the issues of the purported termination of contract (i.e. defective work, non-delivery of building materials, payments of certain invoices and safety issues) had been resolved except for the full payment of invoice 104. QBCC and Neander continued to allege this; the Notice to Remedy issued on 15 December 2017 was ineffective because the Patels were in substantial breach by not paying this invoice in full. Accordingly QBCC and Neander continue to assert that the Patels were not entitled to terminate the building contract. Because these issues were not resolved until after 3 pm on the hearing date of 15 April 2019, the hearing of this matter was adjourned to 10 May 2019 for a further hearing. Mr Moxon, Counsel for the Patels, indicated that an application for costs would be made for the Patel’s costs of the hearing date on 15 April 2019.
  23. [23]
    The central issue in these proceedings is the circumstances surrounding the work connected with invoice 104.

Building Contract and Statutory Insurance Scheme

Relevant Provisions of the Building Contract

4.5 The owner must pay the progress claim to the builder within five working days of receiving a progress claim

4.9 Subject to the rights provided in clause 32.2, the owner is not entitled to a set off against, or in reduction of any amount due to the builder under this contract, any claim that the owner may have against the builder.

28.1 The owner is entitled to give a notice to remedy breach under clause 28.3 if the builder is in substantial breach of this contract. The builder is in substantial breach of this contract if the builder:

(a) suspends carrying out of the works other than under clause 19

(b) the builder’s licence is cancelled or suspended

(c) is otherwise in substantial breach of this contract

28.6 Neither party is entitled to give a notice to remedy breach while that party is in substantial breach of this contract. A notice given by a party in substantial breach is ineffective.

Special Condition 6 – The Builder will raise invoices either in advance or in arrears separately for labour work and materials purchased from time to time as required

PART A. Standard progress payment schedule – as per Invoice presented

Statutory Insurance Scheme

  1. [24]
    Schedule 6 of Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Regulation’):

3 Meaning of fixed price residential contract

  1. (1)
    A fixed price residential contract is a contract between a consumer and a licenced contractor for residential construction work for which the price is fixed except for the effect of the following:
  1. (a)
    price cost items
  1. (b)
    provisional sums
  1. (c)
    increases to reflect increased costs for labour or delays in carrying out work

4 When fixed price residential contract ends

  1. (1)
    A fixed price residential contract ends if—
  1. (a)
    the contract is validly terminated on the default of the licensed contractor; or

Division 2 Assistance if work started

6 Application of division

This division applies to a consumer for residential construction work if—

  1. (a)
    the work is carried out under a fixed price residential contract; and
  1. (b)
    the contract ends within 2 years after the day work starts under the contract; and
  1. (c)
    the work is incomplete; and

Evidence and Material

  1. [25]
    Both Mr Patel and Mr Neander gave evidence at the hearing on 10 May 2019.
  2. [26]
    I did not find Neander convincing. In his evidence Neander was not prepared to make any concessions about his ability to complete the contract, his poor invoicing procedures or the confused state of his paperwork. It is clear that by November 2017 Neander had severe cash flow problems as he was not even able to obtain credit or to afford to pay for the concrete in the amount of approximately $10,000 relating to invoice 104. Further in discussions with the Patels, Neander suggested that he required some $10,000 in advance to enable him to continue work. These are relatively small amounts of money given the size of the building contract.
  3. [27]
    Neander was not in position to provide the Patels with a reconciliation or a “break up” of costs to complete the dwelling house and the time to complete the dwelling house. No formal reconciliation of amounts paid or “break up” of costs to complete the works were provided even though this was requested in meetings in November and December 2017. Further, Mr Neander issued further invoices after the building contract was terminated on 16 January 2018.
  4. [28]
    Invoice 104 was probably for concrete only and it was agreed between the parties that the Patels would pay for the cost of concrete direct to Nucon Concreting. The concrete pour would not have taken place if the Patels had not paid for the concrete. The Patels by this stage were very concerned with the progress of the work, Neander’s proposed claims and his cash flow problems.
  5. [29]
    Even if there was some difference of opinion between the Patels and Neander about Invoice 104 being for concrete only, this issue was resolved between the Patels and Neander on the basis that the Patels would pay the concrete direct to Nucon Concreting, the concrete pour would go ahead and the Patels would consider paying further funds to Neander after he provided a reconciliation of amounts paid and the parties would have further discussions. I outline the following which supports my construction of the events surrounding and after the concrete pour on 21 November 2017:
    1. (a)
      Some previous invoices included descriptions for ‘labour and hire’;
    2. (b)
      Invoice 104 only referred to ‘concrete’;
    3. (c)
      Neander did not respond to the Notice to Remedy breach by 16 January 2018;
    4. (d)
      When Williams wrote to Horsey on or about 2 March 2018 containing a schedule dated 1 March 2018 alleging that monies were owed by the Patels to Neander there was no mention of invoice 104 or any monies owing under invoice 104. However Neander did claim for other work regarding invoices 107 to 112 (inclusive) and invoices 114 to116 (inclusive);
    5. (e)
      It was the Patels who advised QBCC of invoice 104 in their claim made to QBCC on or about 2 February 2018. Neander nor his lawyer raised the issue of monies owing under invoice 104 in their emails to QBCC dated 5 February 2018 and 2 March 2018. In fact Williams provided the Schedule referred to in sub paragraph (d) above where there is no mention of invoice 104;
    6. (f)
      Up to 15 April 2019 Neander represented himself and filed a Reply to Expert building Report on 21 December 2018 - Exhibit 8. This document refers to ‘Payments not completed – in dispute’. However invoice 104 or any monies owing under invoice 104 are not mentioned in this document;
    7. (g)
      Neander through his new lawyer Mr Purcell only raised monies owing under invoice 104 on 15 April 2018;
    8. (h)
      Invoice 104 is dated 17 November 2018. Under the terms of the building contract the Patels had 5 days to pay this invoice i.e. 22 November 2018. If a compromise had not been reached the concrete pour could not have gone ahead on 21 November 2018;
    9. (i)
      Neander in his statement dated 29 April 2019 (exhibit 10) says that he paid $2,041.60 to Go Pump and $2,000 for Mr Jocumsen for concrete finishing in respect of the concrete pour of 21 November 2017. When Neander was giving oral evidence on 15 April 2019 Neander could not explain why invoice 104 was not included in the reconciliation sent by Williams to Horsey on or about 2 March 2018. Neander said Williams had these details;
    10. (j)
      By 20 November 2018 the Patels were alarmed at the progress of the work, defects in the work, how much they had paid in advance to Neander, how much it would cost to complete and how Neander would fund the project. They were right to be alarmed because Neander’s paperwork was in disarray, there were delays in the work schedule, there were defects with the works and he was under cash flow pressure;
    11. (k)
      The recorded conversations of 20 November, 6 December and 8 December 2018 are consistent with the construction that a compromise had been reached. There is only passing references to the concrete pour of 21 November 2018 in the recorded conversations of 6 and 8 December 2018. In the recorded conversation of 8 December 2018 where a project manager, Shane Sharpin, was brought in by the Patels to bring the construction schedule back on track, Neander admits that he has been paid in excess of $30,000 in advance and he has not supplied some material that he has invoiced and received payment. Also Neander wanted some $10,000 cash to assist cash flow. It was resolved at this meeting on 8 December 2018 that the parties would meet again the following Monday 11 December 2018 where Neander would provide a “break up” of costings and reconciliation for further discussion. This did not occur. Neander arrived on site on 11 December 2018 without any “break up” of costings or reconciliation;
    12. (l)
      It is clear that by November 2017 Neander had been paid in excess of $30,000 in advance of the work that he had completed. Also Neander had not supplied some material that he had invoiced and received payment; and
    13. (m)
      Neander did not honour his side of the bargain in respect of the arrangements made by the parties to allow the concrete pour on 21 November 2017 to go ahead. That is Neander never provided any reconciliation of amounts paid and “break up” of costs to complete the works to the Patels and did not undertake any further work on the dwelling house (except for some cleaning) after 11 December 2017.

Submissions

  1. [30]
    The Patels, through their Counsel Mr Moxon, filed Submissions on 15 April 2019 and 9 May 2019.
  2. [31]
    In the Submissions the Patels raise issues of and quoted authorities regarding ‘substantial breach’ and other issues. Given my construction of the events surrounding and after the pouring of concrete and invoice 104 it is not necessary for me to comment on these submissions.
  3. [32]
    In their submissions the Patels also raise the issue of estoppel and they cite the High Court authority of the Commonwealth of Australia v Verwayan (1990) 170 CLR 394. In Verwayen, the Commonwealth initially did not contest liability and did not plead a limitations of time defence. At a later stage in the proceedings the Commonwealth changed its policy and obtained leave to contest liability and plead a limitation of time defence. The court held that this was estoppel because the Commonwealth made a promise and this promise was acted upon to the detriment of Verwayen.
  4. [33]
    It is my view that estoppel does not apply to any conduct of Neander leading up to the hearing of this matter. Neander really did little in QCAT besides raising the issue of invoice 104 late in the proceedings on 15 April 2019. By this stage invoice 104 had been a live issue with QBCC at least since 3 April 2017. Neander has merely asserted his legal right, albeit at a late stage in the proceedings and the Patels have suffered no detriment by Neander’s late assertion of his legal right. Estoppel does not apply to the facts in this matter. The issue of Neander not raising full payment for invoice 104 before 15 April 2019 is an issue that goes to credit and is not one of estoppel.
  5. [34]
    Further, the issue of estoppel does apply to any conduct of QBCC.
  6. [35]
    QBCC and Neander have submitted that because Neander paid for the concrete pump and the concreter relating to invoice 104 this supports their position that invoice 104 was for concrete and expenses. I do not accept that this is the case because Neander would have paid many expenses in this manner during the construction of the dwelling house. Also there is no consistencies with Neander’s invoicing practices which can be described as disorganised. Both QBCC and Neander have failed to explain or take into account the events leading up to and after the concrete pour (re invoice 104) and the fact that Neander did not raise these expenses until 15 April 2019. Further it was the Patels who included a reference to invoice 104 in their claim to QBCC on or about 2 February 2018.

Costs

  1. [36]
    The Patels claim legal costs and expenses for the hearing date of 15 April 2018. All parties were represented on this hearing day and expert witnesses were available. Before this date the defective works and disputed invoices were in issue in the proceedings. After conferencing between the parties and experts until approximately 3.00pm on 15 April 2018 all issues were resolved except for the disputed invoice 104. The hearings regarding the disputed invoice 104 took place on 10 May and 18 July 2019.
  2. [37]
    The Patels rely on correspondence from QBCC on 16 January 2018 where QBCC advised the Patels that QBCC was prepared to reconsider the Internal Review decision made on or about 4 June 2018 in regard to defective works and sought the support of the Patels to file an application in QCAT requesting reconsideration of the Internal Review decision. The Patels agreed to support an application. The application came before Member Cranwell on 8 March 2019 where the application was dismissed and the hearing on 15 April 2018 was confirmed.
  3. [38]
    QBCC never at any stage advised the Patels that the reconsideration of the Internal Review would be successful. At all times before January 2019 up to the hearing date on 15 April 2019 the parties attempted to resolve issues in dispute without success.
  4. [39]
    I do not believe the offer of QBCC to reconsider the Internal Review decision really changed the way the Patels prepared for the trial nor did they suffer any detriment. Further these comments also apply to the way Neander conducted his defence.
  5. [40]
    The fact that the parties had their expert witnesses available on 15 April 2019 really assisted the resolution of issues in dispute because after the meetings by all parties on 15 April 2018 all issues except the disputed Invoice 104 were resolved. This process probably saved time and disputation.
  6. [41]
    Further the issues in dispute were complex and even with all issues (except disputed invoice 104) resolved this was a complex matter.
  7. [42]
    QCAT is primarily a no costs jurisdiction. This is provided for in s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). QCAT can make an order for costs pursuant to s 102 of the QCAT Act in the interests of justice. However, the authorities show that there must be compelling reasons for making a costs order.
  8. [43]
    Accordingly I am of the view that there should not be an order for costs against any party because:
    1. (a)
      There are complex factual circumstances and legal issues in this matter;
    2. (b)
      All issues were in dispute up until 15 April 2019. Although QBCC offered to reconsider the Internal Decision of QBCC made on or about 4 June 2018 there was no guarantee given by QBCC as to the outcome of this review. Further an order was made in QCAT dismissing QBCC’s application;
    3. (c)
      The Patels have not suffered any disadvantage as a result of the offer of QBCC to review the Internal Review decision made on or about 4 June 2018;
    4. (d)
      Neander was not legally represented up to 15 April 2019 and appears to have limited financial resources;
    5. (e)
      QBCC are both the regulator and the administrator of the Statutory Insurance Scheme. Looking at all the circumstances the conduct of QBCC in these proceedings cannot be said to be unreasonable or uncooperative in their interaction with the other parties or QCAT; and
    6. (f)
      There is no allegation by the Patels that they have been denied natural justice.

Findings

  1. [44]
    The building contract dated 3 May 2017 is a fixed price residential contract pursuant to Section 3 of Schedule 6 of the QBCC Regulation.
  2. [45]
    The Patels were not in substantial breach of the building contract when the Patels sent a notice to remedy breach to Neander on 15 December 2017. Accordingly, when Neander did not respond to the notice, the Patels were entitled to terminate the building contract on 16 January 2018.
  3. [46]
    The building contract came to an end on 16 January 2018 pursuant to s 4(1)(a) of Schedule 6 of QBCC Regulation because the building contract was validly terminated by the Patels on 16 January 2018 on the default of Neander (the licensed contractor).
  4. [47]
    The Patels were entitled to claim assistance from QBCC on or about 2 February 2018 for the reasonable cost of completion of the dwelling house.
  5. [48]
    The decision of QBCC made on or about 4 June 2018 is a reviewable decision reviewable pursuant to s 86 of the QBCC Act.
  6. [49]
    The decision of QBCC made on or about 4 June 2018 is reviewable by QCAT pursuant to s 87 of QBCC Act.
  7. [50]
    Pursuant to s 24 of the QCAT Act, QCAT has the power to set aside the decision made by QBCC on or about 4 June 2018 and substitute its own decision.
  8. [51]
    QBCC confirm that the only reason QBCC alleges that the Patels are not entitled to claim assistance from QBCC pursuant to s 7 of Schedule 6 of QBCC Regulation is that the Patels were in substantial breach of the building contract (i.e. not paying invoice 104 in full) when the Patels sent the notice to remedy to Neander on 15 December 2017.

Decision

  1. The decision of the Queensland Building and Construction Commission made on or about 4 June 2018 is set aside;
  2. Toshak Manubhai Patel and Hina Toshak Patel were entitled to a make a claim for assistance on or about 2 February 2018 pursuant to s 7(1) of Schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld) for the reasonable cost of completing their dwelling house situated at 28 Parkview Place, Helensvale; and
  3. The application for miscellaneous matters (costs) dated 9 May 2018 is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Patel v QBCC & Anor

  • Shortened Case Name:

    Patel v QBCC

  • MNC:

    [2019] QCAT 223

  • Court:

    QCAT

  • Judge(s):

    Member Poteri

  • Date:

    12 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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