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Queensland Judgments
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  • Unreported Judgment

Jacques v Lohmann

 

[2019] QCAT 263

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jacques v Lohman & Anor [2019] QCAT 263

PARTIES:

IAN CLARK JACQUES

(applicant)

v

GRAHAM J LOHMANN

and

MERYL C LOHMANN

(respondents)

APPLICATION NO/S:

BDL225-17

MATTER TYPE:

Building matters

DELIVERED ON:

26 August 2019

HEARING DATE:

14 September 2018 and 19 November 2018

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

Graham J Lohmann and Merrill C Lohmann are to pay the amount of Six Thousand One Hundred and Forty-One Dollars and Sixty-Three Cents ($6,141.63) to Ian Clark Jacques.

CATCHWORDS:

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – whether the terms of a written contract applied – whether the building contract was  a ‘cost plus’ or a ‘lump sum’ contract – where the scope of works was uncertain – where positive and negative variations were considered.

Queensland Building and Construction Commission Act 1991 (Qld), s 77(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd [2017] QCAT 52

Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219

Swindells v Hosking & Anor (No 2) [2012] QDC 17

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    Mr Jacques conducted a domestic building business trading as ‘I and K Construction Solutions’ (‘the builder’). He performed building works for Mr Lohmann and Ms Lohmann (‘the owners’) at their property at 16 Towers Street, Charters Towers, in Queensland.
  2. [2]
    The works included renovations to an existing house, and work on a new large shed and concrete carport slab and driveway.
  3. [3]
    The builder claims the amount of $39,310.79 as an amount owing for work performed, together with interest and costs.
  4. [4]
    The owners counterclaim for a total of $14,865.90 as follows:-
    1. (a)
      Variations of $6,956.70;
    2. (b)
      Late completion charges of $2,750.00;
    3. (c)
      Replacement of vertical blinds of $2,666.00;
    4. (d)
      Payment for loss of income by Ms Lohmann of $195.00; and
    5. (e)
      Legal costs of $2,298.20.
  5. [5]
    The parties initially entered into an HIA ‘Alteration, Addition and Renovation Contract’ dated 21 September 2016. The contract was expressed to be between J and Merrill C Lohmann as owners, and Ian Clark Jacques as building contractor. The contract price (including GST) was $161,595.33.
  6. [6]
    The owners have paid $145,435.79 to the builder. They have not paid the final stage payment of $16,159.53.
  7. [7]
    The HIA contract provided for work to start on 31 October 2016 and to reach practical completion within 63 days after commencement. An ‘amended progress payment schedule’ was attached to the contract follows:

Deposit

5%

$8,079.76

Demolition & stripout

30%

$48,478.60

Bathroom installation

25%

$40,398.83

Fix out & kitchen

30%

$48,478.60

Balance & practical completion

10%

$16,159.53

Total

100%

$161,595.32

  1. [8]
    A ‘Scope of Works’ was attached to the contract. It is relevant to reproduce the whole of that document:

Project: 16 Towers Street Charters Towers

Owners: Graham and Merrill Lohmann

Builder: I & K Jacques Construction Solutions

Licence: 1148100

Project cost: as per contract

Statement of Purpose:-

The purpose of the Scope of Works is the implementation of building works to be carried out on the above project. The dwelling is to be altered to the client’s specifications with compliance of relevant codes and standards. This statement clearly sets out works carried out by the builder and sub-contractors in a sequence common to standard construction practices. All works carried out are to be compliant with Building Code of Australia Vol 2 Class 1 building, relevant Australian Standards, local council regulations and manufacturers’ specifications.

Works to be carried out by builder:-

  • removal of existing ceilings and floor coverings
  • removal of tiles, fittings and linings
  • removal of existing kitchen
  • remove existing evaporative air con from roof and ducting, vents from ceilings
  • removal of existing brick wall
  • removal of existing patio structure and concrete slab
  • installation of new internal wall framing (arches)
  • installation of new internal ceilings
  • installation and supply of internal linings e.g. gyproc and villaboard
  • installation of new internal doors and external door (entrance)
  • installation of waterproofing to wet areas
  • installation of screed to wet areas floors
  • installation of tiles to walls and floors bathroom and main living area
  • fix out – skirting and architraves
  • installation of vanity and bathroom accessories
  • installation of new kitchen
  • installation of sliding robe doors and linen cupboards
  • installation of paint finishes interior and exterior
  • installation of 3 bay shed (8.839 x 8.000 x 3.000 wall height to concrete slab to engineers details)
  • installation to new carport to existing concrete slab 5.914 x 3.964 x 2.400 high to eave line
  • installation of new patio roof, ceiling and concrete slab to engineers detail
  • installation of concrete driveway from front yard to back of patio (85sqm)
  • installation of ceiling batts to roof cavity (R 3.0 Batts)

Works to be carried out by sub-contractors:-

  • First fix out by electrician (isolation of all power sources and removal of old fittings)
  • supply power to relocated hot water service
  • installation and supply of all new ceiling fans, ceiling fans/lights, down lights, power points, sensor lights, exterior wall light, TV points, exhaust fan light and all other wiring and electrical requirements
  • first fix out of plumber internal pipes and drainage to bathroom and kitchen areas
  • installation and supply of new hot water service
  • Telstra first fit off
  • electrician final fit off
  • plumber final fit off
  • Telstra final fit off
  • removal of waste and rubbish from site

Compliance and statutory requirements

  • Builders Risk Insurance
  • Builders Warranty
  • Council BA application and approvals
  • Engineers Details
  • Qleave
  1. [9]
    The Contract included a notice to the owners of their right to withdraw from the contract, under Schedule 1B Section 35 of the Queensland Building and Construction Commission Act 1991 (Qld), within five working days after the day on which they received a copy of the signed contract from the building contractor.
  2. [10]
    The owners sent an email to the builder, dated 27 September 2016, advising that they had no alternative but to withdraw from the contract as provided in the cooling off period, as they had reached an impasse with the bank as to funding, and could not come to an agreement with them. They further expressed that they would need to revisit the Scope of Works to significantly reduce the costs.
  3. [11]
    On the same day, 27 September 2016, the owners sent a Withdrawal Notice to the builder.
  4. [12]
    Emails were exchanged between the owners and the builder on 4 October 2016 discussing ways to save costs.
  5. [13]
    The owners resolved their issues with the bank, and obtained approval for a loan sufficient to enable them to conduct the works.
  6. [14]
    The parties met on site on 6 November 2016. The owners allege that all parties verbally agreed to continue with the contract in its original form.
  7. [15]
    The builder commenced work at the residence on 8 November 2016.
  8. [16]
    The owners received a Notice of Cessation of Works from the builder on 1 December 2016 outlining his right of payment, and drawing attention to clause 33 and clause 4.5 of the contract.
  9. [17]
    The owners met the builder and his wife on site on 5 March 2017 and discussed variations that were claimed by the builder.
  10. [18]
    The builder sent a text to the owners on 6 March 2017 advising that he had secured the site under his contractual right of exclusive possession clause under clause 10 of the contract. The site was fully fenced off with barrier fencing.
  11. [19]
    The owners made a complaint to the Queensland Building and Construction Commission, and attended an on-site meeting on 13 March 2017, which was facilitated by Mr Cameron of the QBCC. The matter was not resolved, other than the builder providing written approval to the owners to take occupancy of the residence. The builder later removed the barrier fencing.
  12. [20]
    The owners received correspondence from ‘Rapid Legal Solutions’ who acted on behalf of the builder on 8 March 2017, which stated that due to ‘a breakdown of relationship’ the builder was no longer willing to complete the works.
  13. [21]
    The owners’ solicitor, Lee Turnbull and Co, responded on 5 April 2017, accepting the repudiation of the contract.

The builder’s claim

  1. [22]
    The builder’s claim is as follows:

ITEM

SUPPLIER

AMOUNT OWING (incl. GST)

Supply and installation of carpeting

Speerstra Investments Pty LPD

$1,826.80

Various items required for the build

Herbert Hall Enterprises Pty Ltd

$15,213.94

Applicant labour costs for final week of building works performed from 19/02/2017 to 25/02/2017

The applicant

$7,579.00

Supply and installation of kitchen

Nashbrook Pty Ltd trading as Towers Custom Cabinets

$11,000

Supply of sliding shower door and glass

Bradnam’s Windows and Doors Pty Ltd

$1,108.80

Removal and replacement of roof gutters on patio

Desmond Phillips

$891.00

Additional QBCC insurance

QBCC

$1,377.75

Couriering of tiles and timber

Killametre Couriers

$313.50

TOTAL

$39,310.79

The owners’ counter application for Variations

  1. [23]
    The owner’s counter application for the balance of positive and negative variations is expressed as follows:-

VARIATIONS OWING TO THE BUILDER (positive variations)

COST

Carpets

$3326.80

Apron and path

$369.60

Labour and materials for water damaged bathroom

$3458

Additional plastering

$3000

Replacement of guttering

$880

Replacement of rear door

$300

Subtotal

$11,334.40

VARIATIONS OWING TO THE OWNERS (negative variations)

COST

Shed kit

$11,340.00

Laundry tub

$235.00

Vanity basin and mirror

$965.10

Bi-fold doors

$1,000.00

Exterior painting

$4,000.00

Qleave

$751.00

Subtotal

$18,291.10

BALANCE OWING TO THE OWNERS

$6,956.70

  1. [24]
    The owner’s counter application for variations and the builder’s application overlap. There should be a claim by the builder for positive variations as part of the claim; and a separate claim by the owners for negative variations as part of the counter-application.

Contentions of the builder as to the Contract

  1. [25]
    The builder makes his claim on alternate bases being:[1]
  1. a)
    Moneys owing in accordance with the agreement between the parties to the performance of works; or By way of quantum meruit for the reasonable value of the benefit of works conferred on and accepted by the owners at the builder’s expense.
  1. [26]
    The builder contends that it was never his intention to enter into a fixed price contract, and that he did so only at the request of the owners, to satisfy their bank.
  2. [27]
    The builder contends that at a meeting with the owners on 18 September 2016 to discuss provision of building works, he made it clear to the owners that:[2]
  1. (a)
    It is not his usual business practice to perform renovations under a fixed price contract;
  1. (b)
    That a builder’s margin would not be charged and all discounts for materials and trades would be passed on to the owners in full;
  1. (c)
    The builder’s labourer fees would be charged at standard hourly rates plus GST; and
  1. (d)
    All invoices, statements and receipts in relation to the works would be given to the owners, along with the running spreadsheet outlining their expenditure.
  1. [28]
    The builder contends that at the meeting on 18 September 2016, the parties discussed that a standard HIA contract would be entered into for the sole purpose of allowing the owners to obtain finance from the chosen lender, and that the HIA contract (which he refers to as ‘the first contract’) was signed on 21 September 2016.[3]
  2. [29]
    The builder contends that he accepted the owners termination of the first contract, which he received by email on 27 September 2016.[4]
  3. [30]
    The builder contends that a ‘second contract’ arose after he sent an email on 27 September 2016, in response to the owners email advising that they were withdrawing from the first contract. He contends that his email offered an unfixed price arrangement in line with his usual business practices whereby the builder would:[5]
  1. a)
    Perform works pursuant to the Scope of Works or as instructed by the Respondents;
  1. b)
    Pass on the costs charged by third-party suppliers and trades, including any savings;
  1. c)
    Issue invoices throughout the build for the drawing down from funds receive by the Respondents’ financier; and
  1. d)
    Provide receipts and a running spreadsheet to track expenditure.
  1. [31]
    The builder contends that, upon commencing work on 8 November 2016, water damage was discovered in one of the bathrooms, and further water damage was discovered in the laundry on 10 November 2016. The builder contends that the extent of the water damage was not communicated to him prior to its discovery, only that there may be some in the laundry.[6]
  2. [32]
    The builder says that he gave the owners a quote of $15,000 to repair the damage, and the owners instructed him to proceed with the work (which required an increase to the total cost of the works) as follows:[7]
    1. (a)
      Removal of wall linings;
    2. (b)
      Removal of framing to 5 walls, skirtings, architraves and door jambs;
    3. (c)
      Repairing damaged framing; and
    4. (d)
      Removal of carpeting.
  3. [33]
    The builder says that he sent the owners an email issuing an invoice for payment of outstanding expenses on 26 February 2017; and received an email from the owners on 2 March 2017 in which they provided a table of items they would pay the builder for, and those they would not pay for.[8]
  4. [34]
    The builder claims the amount of $39,310.79 as breach of the ‘second contract’ by failing to pay amounts as they fell due. Further, or in the alternative, the builder says that he is entitled to receive an order that these reasonable amounts be paid by the owners on the basis of quantum meruit.[9]

Contentions of the Owners as to contract

  1. [35]
    The owners deny that at the site meeting on 18 September 2016, the builder advised them of his usual business practice as outlined in the application, and contend that the builder’s wife advised that they did not usually enter into contracts but did so on this occasion as the owners required it.[10]
  2. [36]
    The owners contend that they did not perceive that the email from the builder of 27 September 2016 was an offer of an unfixed price arrangement, but that regardless, the advice offered was not acted upon by either the builder or the owners.[11]
  3. [37]
    The owners deny that the parties proceeded on an unfixed price arrangement.[12]

Decision as to Contract

  1. [38]
    I will make a determination as to the form of contract at the outset of these reasons, as the treatment of the various claims is dependent upon that determination.
  2. [39]
    It is clear that the parties entered into a written contract on 21 September 2016. It is also clear that the owners withdrew from that contract, and their withdrawal was not challenged by the builder.
  3. [40]
    The parties then proceeded to engage in building work, commencing on 8 November 2016. Unfortunately, prior to the commencement of work, the parties did not make clear as to the basis upon which each thought they were proceeding.
  4. [41]
    The owners refer to the initial contract having been ‘revived’, but cannot point to any document or correspondence with the builder, which clearly evidences such a legal step.
  5. [42]
    The builder alleges that the work was proceeding on a ‘do and charge’ basis, but cannot point to any document or correspondence with the owners which clearly evidences their agreement to that course.
  6. [43]
    The basis of a contract is that parties enter into certain business arrangements. A contract may be oral or written, or it may be partially oral and partially written. It is an offence under Section 67G of the Queensland Building and Construction Commission Act 1991 (Qld) for a building contractor to enter into a building contract that is not put into writing. However, a failure to do so does not deprive a builder of an ability to recover for work done under a wholly oral building contract, as held by the Court of Appeal in Nichols v Earth Spirit Home Pty Ltd[13]:

[32] The Appellate Tribunal correctly found that the fact that the respondent had committed an offence, by entering into a building contract which was not reduced to writing, did not render the wholly oral contract between the respondent and the applicant unenforceable. The Appeal Tribunal also correctly found that nothing in section 67E(2) of the Act required a finding that the wholly oral building contract was unenforceable. There are also no good reasons of public policy to support a conclusion that the wholly oral building contract was unenforceable.

[33] This conclusion renders unnecessary any consideration of the alternate claims raised by the respondent’s notice of contention for recovery on the basis of a quantum meruit or unjust enrichment.

  1. [44]
    No further written contract was entered into after 21 September 2016.  The parties did have further correspondence and discussions with each other as to the pricing of, and scope of, work.
  2. [45]
    Where  no clear  arrangements exists as to assessment of the remuneration of a builder, an  assessment of quantum meruit may apply, which assesses and allows a fair  price for the work that  a person does for another.  Similarly, the principles of ‘unjust enrichment’ or restitution, provide that one person should not unfairly receive a windfall benefit from the effort of another, at the expense of the other, may apply.
  3. [46]
    The question in this matter becomes as to what legal relationship is to apply to the work that commenced on 8 November 2016 and proceeded thereafter. Is a legal relationship of some sort discernible from the actions of the parties?
  4. [47]
    Notwithstanding the absence of a further written contract, the conclusion is available that the work proceeded, after the withdrawal from the written contract on 21 September 2016, on the basis of an oral contract made on 6 November 2016, the terms of which are as set out in the written contract dated 21 September 2016.
  5. [48]
    There are a number of actions by the builder, and surrounding circumstances, which are incompatible with the builder’s contention that the work was not proceeding on the basis of, and in accordance with, the terms of the written contract dated 21 September 2016.
  6. [49]
    The ‘Notice of cessation of works at 16 Towers Street’ that was sent to the owners by the builder and dated 1 December 2016, expressly referred to the written HIA contract[14]. I have underlined phrases for emphasis:

This letter is to notify you of our intention to cease work at the above address. I draw your attention to clause 33 on page 2 of our Housing Industry of Australia Contract compliant with the Queensland Building and Construction Commission Act 1991. And clause 4.5 (Progress Payments). It states quite clearly payment of claims are to be made in five days from your signing of the progress claim. This failure places you in breach of the HIA contract and entitles us to enforce default interest of 18% PA.

And

I trust that this situation is an oversight on your bank’s behalf and further claims will be processed in a timely matter as stated in your ‘Plain Language Alteration, Addition and Renovation Contract ’.

  1. [50]
    The builder seized control of the premises, relying upon the written HIA contract as his authority to do so.[15] The text message sent by telephone by the builder to Mr  Lohmann expressly referred to sections of that contract:

Hi Graham, I am informing you we have secured the site 16 Towers Street under out (sic) contractual right of exclusive possession clause 10 of the contract. Please be assured it gives me no pleasure but you are in substantial breach of clause 26 of the contract. I apologise for any inconvenience and you will receive a full explanation writing within 24/48 hours.

  1. [51]
    After a meeting with Mr Cameron of the QBCC on 13 March 2017, the builder extended the statutory insurance which he had previously taken out in relation to the works with the QBCC, to extend cover from 21 September 2016 for the insurable value of $161,595.32. That is precisely the amount provided for in the written contract dated 21 September 2016, and the cover is expressed to run from that exact date.
  2. [52]
    The builder’s legal representatives referred expressly to a written contract in their letter of 10 March 2017 to the solicitors acting for the owners:[16]

We have been instructed that a payment of $751 was not made to Qleave and that the builder has not sought this cost against the owners. It is our client’s position that they never agreed to supply a carport. We refer your client to schedule 4 of the Contract which outlines that all prime cost items are to be provided by the owner. Clause 22.1 of the Contract outlines at the materials, goods, labour and services shown in the contract documents which are set out in schedule 4 are excluded from the works and the costs of those items are not included in the Contract price.

  1. [53]
    These actions by the builder, and his representatives, clearly indicate that the terms of a written contract were being relied upon by him.
  2. [54]
    I consider that the contention by the builder that the legal relationship was on a ‘do and charge’ basis is unsupported by the conduct of the parties, and is wholly unsustainable.
  3. [55]
    I accept the evidence of the owners that an oral agreement was made on 6 November 2018 to proceed with the works.
  4. [56]
    I am satisfied that the parties  were conducting  their legal relations at the time of the commencement of work on 8 November 2016, and thereafter, on the basis of an oral contract, and that the terms of that oral contract were as set out in the written HIA contract dated 18 September 2016.
  5. [57]
    The terms of the written HIA contract dated 18 September 2016 are therefore the terms of the contract between the parties for consideration in this dispute. I will determine this matter on the basis of those terms.
  6. [58]
    The difficulty in this matter is that the Scope of Works is poorly drafted, and simple reliance on the words used does not reveal the intent of the parties as demonstrated by the conduct. I do not consider that the Scope of Works identifies the work agreed to be performed with precision.
  7. [59]
    Particularly, the Scope of Works refers to some items as ‘installation’ only, and other items as ‘installation and supply’. It is not readily discernible as to why some items are described in one of these ways – for example, new internal ceilings are shown as installation only, whereas internal linings e.g. gyprock and villaboard are shown as installation and supply. Ceilings also require gyprock or a similar material, but there is no apparent provision for supply of those linings; that inconsistency between the treatment of the ceilings, and the internal linings, is unexplained.
  8. [60]
    In other instances, the Scope of Works refers to installation of items, but no dispute has been raised by the builder as to it being his responsibility to also provide for supply of the items e.g. new internal doors and external door (entrance); waterproofing to wet areas; screed to water areas floors, and tiles to walls and floors bathroom and main living area; paint finishes interior and exterior; concrete driveway; and ceiling batts.
  9. [61]
    The obvious conclusion is that the Scope of Works is simply poorly drafted, and that a literal interpretation of the expressions ‘installation’ and ‘installation and supply’ is not possible or appropriate. Rather, each item on the Scope of Works is to be considered in context, and a judgement be made as to what is the most reasonable interpretation of that item in the circumstances.

The claims by the builder

  1. [62]
    I will consider each of the claims of the builder in turn.
  2. [63]
    Initially however, I observe that the two largest items are the supply and installation of a shed, and the supply and installation of a kitchen. The builder contends that neither the supply of a shed, nor the supply of a kitchen, were the obligation of the builder. The owners contend that both the supply of a shed and the supply of a kitchen were included in the lump sum agreed price.
  3. [64]
    The owners have paid the full cost of the supply and installation of the shed, and part of the cost of the supply and installation of the kitchen. The builder has also paid part of the cost of the supply and installation of the kitchen.

Supply and installation of carpeting

  1. [65]
    The builder obtained carpets from Solomons Carpets Townsville at a cost of $3,326.80.[17]
  2. [66]
    A spreadsheet prepared by the builder was commented on by the owners, and the comment ‘accepted’ was marked against this item.[18]
  3. [67]
    The owners submit that they accept that carpets were an excluded item in the contract.[19]
  4. [68]
    Ms Lohmann referred to the supply of carpets as follows:[20]

We told them that we would purchase the carpet as they would be the last thing to be done. Kathy advised that their preferred supplier was Solomon’s carpets in Townsville. We subsequently went there and selected a carpet and priced that. Kathy later took this out of our hands and liaised with Solomon’s carpets to have the carpets installed. The quote was in their name and they paid the deposit. I took this to mean that we still had a credit on our variations and Kathy was using the credit to pay for the carpets. We were never given an invoice for the carpet.

  1. [69]
    Mr Jacques disagrees with this suggestion, and says that neither he nor his wife discussed a credit on any variations, or the use of any credit, to pay for carpets. He says that the builder paid for the supply and installation of carpeting on the basis that they would recover those costs from the owners.[21]
  2. [70]
    Text messages between Ms Jacques and Ms Lohmann indicates that the owners were ‘getting’ the carpets, and read as follows:[22]

Ms Jacques: Oh also I’ll do a measure of rooms for carpet and send to Wendy are you still going to get carpets from Solomons?

Ms Lohmann: Sorry Kathy missed the messages phone on silent. Yes we are getting black carpet from Solomons.

  1. [71]
    As the carpets are excluded from the written contract in schedule 4, and in the absence of any provision in the Scope of Works for the supply and purchase of carpets, and of any other evidence as to agreement by the builder to supply and install carpets, I am not satisfied that the provision of carpets were part of the contract.
  2. [72]
    I allow the amount of $3,326.80 for this claim to the builder.

Various items required for the build

  1. [73]
    This claim is for $15,213.94 as items supplied by Herbert Hall Enterprises Pty Ltd. The application attaches copies of invoices from this supplier.[23]
  2. [74]
    The invoices detail a large number of building products for the period from 1 December 2016 to 27 February 2017. The products appear to be building products that would be expected in standard residential construction e.g. sikaflex, screws, nuts and bolts, timber, Colorbond gutter sections, pine trusses, rags, rivets, gyprock and doors.
  3. [75]
    No clear basis for this claim is described by the builder. Presumably, he is claiming these as items supplied on a ‘do and charge’ basis.
  4. [76]
    The owners do not accept this claim which they describe as ‘a claim for general products required for the build and were not PC items or excluded items in terms of the contract’.[24]
  5. [77]
    There is no indication that these are anything other than construction items that would be included in the lump sum price under the terms of the contract.
  6. [78]
    I do not allow any of this claim to the builder.

Builder’s labour costs for final week of building works performed from 19/02/2017 to 25/02/2017

  1. [79]
    The owner submits that the builder was paid $48,470.60 for stage  works, making total payments to that point of $145,435.79. They submit that payment of that stage included wages for those works completed, and that these works were within the Scope of Works of the contract.[25]
  2. [80]
    No clear basis for this claim is described by the builder. Presumably, he is claiming this as labour supplied on a ‘do and charge’ basis.
  3. [81]
    There is no indication that these are anything other than labour costs that would be included in the lump sum price under the terms of the contract.
  4. [82]
    I do not allow any of this claim to the builder.

Supply and installation of kitchen

  1. [83]
    This claim is for $11,000 for payments made by the builder towards supply and installation of a kitchen by Towers Custom Cabinets.
  2. [84]
    The builder submits that the owners had a contract directly with Towers Custom Cabinets for the supply and installation of a kitchen, wardrobes, wardrobe doors and cupboard doors; and that the builder was only ever involved with the scheduling of the installation and providing guidance by way of opinion only.[26]
  3. [85]
    The owners submit that the kitchen was an inclusion in the fixed price contract.
  4. [86]
    The Scope of Works attached to the written contract, which would apply, allows for ‘installation of new kitchen, installation of sliding robe doors and linen cupboards’. It does not refer to supply of the kitchen.
  5. [87]
    The quotation from Towers Custom Cabinets dated 20 December 2016 is made out to ‘I & K Jacques’. It is signed by Ms Lohmann.
  6. [88]
    The quote is for supply and installation of kitchen cabinets and splash backs for $14,971.00 excluding GST ($16,468.10 including GST). The quote also provides for supply and installation of robe/linen doors, drawers and shelves. The total quote is for $20,790.00 including GST.
  7. [89]
    Ms Lohmann signed the quote. She said that she only signed it after she obtained email approval from Mr and Ms Jacques to do so.
  8. [90]
    The builder claims the amount of $11,000. This amount is not the actual cost of any identifiable item, but is calculated on the basis of the amount the builder had paid Towers Custom Cabinets:[27]
  • Amount owing – $11,000 including GST;
  • Tax invoice attached as IJ – 30;
  • Pursuant to the respondents instructions, the applicant paid the suppliers deposit of $7000 on 18 January 2017 (transfer receipt attached as IJ – 31) and made a further payment of $4000 to the supplier on 14 June 2017 (transfer receipt attached as IJ – 32).
  1. [91]
    Supply of the kitchen under the oral contract would be under the same terms as the earlier written contract. The Scope of Works only refers to ‘installation of new kitchen’, but does not refer to supply of the kitchen.
  2. [92]
    The conduct of the parties however, indicates that it was intended that the supply and installation of the kitchen be made by Towers Custom Cabinets. The builder at no time intended to construct the cabinets themselves, and no separate quote for supply of cabinets was obtained by them. The only quote that the builder discussed with the owners was for supply and installation of the kitchen.
  3. [93]
    I consider that supply and installation of the kitchen was within the use of the expression ‘installation of kitchen’ in the Scope of Works.
  4. [94]
    I do not allow any of this claim to the builder.

Supply of sliding shower door and glass

  1. [95]
    This claim is for $1,108.80 for a shower screen supplied by Bradnams Windows and Doors Pty Ltd.
  2. [96]
    The owners submit that the shower screen was an original inclusion in the build.
  3. [97]
    There is no reference to a shower screen in the Scope of Works.
  4. [98]
    I am not satisfied that the shower screen was included in the Scope of Works. I accept that it constitutes a variation which was approved by the owners.
  5. [99]
    I allow this claim of $1,108.80 to the builder.

Removal and replacement of roof gutters on patio

  1. [100]
    This claim is for $891.00 paid to Desmond Phillips.
  2. [101]
    The owners do not dispute this claim.[28]
  3. [102]
    I allow this claim of $891.00 to the builder.

Additional QBCC insurance

  1. [103]
    This claim is for $1,377.75 as additional payment made to the Queensland Building and Construction Commission for statutory insurance.
  2. [104]
    As discussed, the builder ultimately paid the full premium to cover the precise lump sum under the written contract. Further premium payment was required, as the builder had not taken out sufficient insurance initially.
  3. [105]
    The Scope of Works provides for ‘Builders Risk Insurance’, but does not specifically refer to QBCC insurance. There is no definition of what ‘Builders Risk Insurance’ refers to.  Section 68B(2) of the Queensland Building and Construction Commission Act 1991 (Qld) provides that the contractor must collect the appropriate insurance premium from the consumer and pay it to the QBCC.
  4. [106]
    The builder therefore has a liability to pay the QBCC insurance. That amount is usually specifically included in the contract price.  In the absence of any other explanation, I interpret the expression, ‘Builders Risk Insurance’ to include, the compulsory QBCC insurance.
  5. [107]
    The full cost of the QBCC insurance therefore forms part of the lump sum under the contract, and is not separately claimable.
  6. [108]
    I do not allow any amount on this claim to the builder.

Couriering of tiles and timber

  1. [109]
    This claim is for $313.54 for transport by courier of tiles and timber.
  2. [110]
    The owners submit that the items were obtained by the builder, and should have been included in his costings.
  3. [111]
    The Scope of Works provides for installation of tiles, and timber which was required for wall framing etc.
  4. [112]
    The builder does not address why this claim should be allowed.
  5. [113]
    There is no express provision for supply of tiles and timber in the Scope of Works, but it is not contested that supply of these was the responsibility of the builder.
  6. [114]
    I am satisfied that the cost of transport of tiles and timber forms part of the lump sum under the terms of the contract.
  7. [115]
    I do not allow any amount on this claim to the builder.

Additional amounts due to the builder

  1. [116]
    The owners agree in their counter-application that the amount of $11,334.40 may be due to the builder. Their comments on these items are as below:[29]

VARIATION

COST

EXPLANATION

Carpets

$3,326.80

Item contained in schedule 4 of the contract.

Apron and path

$369.60

Agreed variation without cost provided.

Labour and materials for water damaged bathroom

$3,458.00

The respondents may accept this variation.

Additional plastering

$3,000.00

The respondents may accept this variation.

Replacement of guttering

$880.00

Agreed variation.

Replacement of rear door

$300.00

Variation not requested or listed however respondents accepted.

SUB-TOTAL

$11,334.40

The value of variations the respondents believe may be due to the applicant.

  1. [117]
    These items were not contested at the hearing, and I accept that the amount of $11,334.40 is owing to the builder, however the amount for carpets of $3,326.80 is already included in the builder’s claim.

Builder’s claim: Summary

  1. [118]
    I therefore allow $12,454.50 on the claim by the builder as follows:

Carpet

$3,326.80

Sliding Shower Door and Glass

$1,108.80

Roof Gutters

$891.00

Apron and Path

$369.60

Water Damaged Bathroom

$3,458.00

Additional Plastering

$3,000.00

Replacement Rear Door

$300.00

TOTAL

$12,454.20

Final Stage Payment

  1. [119]
    The house was substantially completed by the builder, except as to what is claimed by the owners as negative variations. As I have found that the terms of the original HIA contract apply, the builder is entitled to be paid the final stage payment of $16,159.53 (which will be set-off by the negative variations in the final accounting).

Counter-Application: Variations

  1. [120]
    The owners contend that an amount for negative variations of $18,291.10 should be allowed to them. Those items are as previously shown:

VARIATIONS OWING TO THE OWNERS (negative variations)

COST

Shed kit

$11,340.00

Laundry tub

$235.00

Vanity basin and mirror

$965.10

Bi-fold doors

$1,000.00

Exterior painting

$4,000.00

Qleave

$751.00

Subtotal

$18,291.10

  1. [121]
    I will consider each item of the claimed negative variations in turn.

Shed kit

  1. [122]
    The builder says that it never agreed to pay for the supply of a shed kit.[30]
  2. [123]
    Mr Lohmann contended that they arranged for purchase of a shed kit, and ordered and paid for it themselves, due to time constraints:[31]

48. Merrill had obtained quotations from Total Span Sheds – Seven Day Hire for supply and erection which were provided to the applicant and included in the contract price. On 6 and 14 October 2016 we received emails from Widespan sheds about impending price rises and pre-Christmas delivery timeframes. This shed was our preference as it appeared to be a better quality for a lower price than the other manufacturer.

49. As the applicant was still overseas, we ordered and paid for the shed so that the applicant would not be out of pocket with price rises and that the shed kit could be delivered before Christmas.

  1. [124]
    Ms Lohmann refers to the various quotes that she had obtained, and says that she obtained quotes for both supply and erection of sheds:[32]

3. We went outside and showed them where the shed was to go and told them that the site would be cleared. I told them that I had quotes from two shed suppliers, 7 Day Hire for Total Span, and from Widespan Sheds. Supply only from both suppliers and supply and erect from 7-Day Hire.

4. Kathy said they would use a quote that I got off 7 Day Hire as it was for supply and erecting a shed for pricing purposes in the quote. She asked me to confirm that the quote was still current. I emailed confirmation to Kathy on the 20 September 2016 along with the attached quote for the supply and erection of the shed. I did not supply any of the ‘supply only’ quotes.

5. Ian said that he would build a shed himself and had no preference of shed kits.

6. Our preference was for the Widespan Sheds kit as it seemed to be a better design and was slightly cheaper.

  1. [125]
    The Scope of Works refers to ‘installation of three bay shed (8.839 x 8.000 x 3.000 wall height to concrete slab to engineers details)’. It does not refer to supply of the shed.
  2. [126]
    Significantly the evidence of Ms Lohmann (quoted above) refers to Mr Jacques saying that he would build a shed himself, and refers to use of a shed kit. That is consistent with their being a provision in the Scope of Works for installation of a shed kit.
  3. [127]
    The actions of the owners in buying the shed kit whilst the builder was away, is indicative of their accepting an active role in the arrangement for supply of the shed, but does not indicate acceptance that they were to pay for the supply in addition to the lump sum price under the contract.
  4. [128]
    There is evidence of agreement by the builder to install the shed, and the course of conduct is not inconsistent with the owners’ expectation that the builder would supply the shed.
  5. [129]
    I consider that supply and installation of the shed was within the use of the expression ‘installation of a shed’ in the Scope of Works.
  6. [130]
    I am satisfied that supply of the shed was included in the contract.
  7. [131]
    I allow the claim for a negative variation of $11,340 as to the shed.

Laundry tub

  1. [132]
    This claim is for $235.00 for a laundry tub.
  2. [133]
    The builder denies that a laundry tub was included as part of the renovation.
  3. [134]
    Mr Lohmann says that he purchased the laundry tub from Bunnings in Townsville for $235 on 16 November 2013, and that he had received email agreements from the builder to do so the previous day.[33]
  4. [135]
    The emails dated 15 November 2016 about the laundry tub do not show a clear agreement as to who is to pay for the laundry tub. The emails refer to whether the tub had been ordered, and a reply from the builder that it had not been ordered and that it was ‘all good for Graham to grab one from Bunnings’.
  5. [136]
    The Scope of Works does not refer to a laundry tub.
  6. [137]
    In the absence of a provision in the Scope of Works as to a laundry tub, and no evidence as to agreement between the parties as to who would pay for it, I am not satisfied that supply of laundry tub was part of the contract.
  7. [138]
    I do not allow the claim for a negative variation as to the laundry tub.

Vanity Basin and Mirror

  1. [139]
    This claim is for $965.10 for the supply of a vanity basin and mirror.
  2. [140]
    Mr Lohmann says that his wife paid for a vanity basin and mirror  rather than  using one that had been included in the  cabinet quote:[34]

56. The original quote from Charters Towers Custom Cabinets included the supply and installation of a vanity basin for $1340. This was a quotation provided to the applicant by email on 18 September 2016.

57. Subsequently, we decided not to proceed with that vanity and opted for another vanity and mirror which was available at Home Hardware, Charters Towers.

58. The applicant’s wife ordered the vanity and mirror apparently in Meryl’s name. Subsequently, a sales assistant requested payment from Meryl as the account was in her name. Payment of $965.00 was made by her on 12 December 2016.

  1. [141]
    The Scope of Works refers to installation of ‘vanity and bathroom accessories’. In the absence of an alternative explanation as to what items that describes, I am satisfied that a common sense meaning of the  expression ‘a vanity’ would include a basin as being  part of it; and that ‘bathroom accessories’ would include a mirror.
  2. [142]
    I am satisfied that supply of a vanity basin and mirror was included in the Scope of Works.
  3. [143]
    I allow the claim of $965.10 for a negative variation as to the vanity basin and mirror.

Bifold doors

  1. [144]
    This claim is for $1,000.00 for supply of bifold doors.
  2. [145]
    The builder denies that the supply and installation of bifold doors was included as part of the cost of the renovation.
  3. [146]
    Mr Lohmann says that the supply and installation of bifold doors was included in the Scope of Works.[35]
  4. [147]
    The only reference in the Scope of Works to doors is as to ‘installation of new internal doors and external door (entrance)’ and as to ‘installation of sliding robe doors and linen cupboards’.
  5. [148]
    In order to establish what is included as a ‘new internal door’ it would be necessary to have reference to a plan which details the internal doors. No plan as to this detail is in evidence. It is therefore not possible to determine that bifold doors are included in the Scope of Works.
  6. [149]
    In the absence of reference in the Scope of Works as to provision of bifold doors, or any plan showing them, or evidence of agreement by the builder to supply them, I am not satisfied that supply of bifold doors was included in the contract.I do not allow a claim for a negative variation as to bifold doors.

Exterior Painting

  1. [150]
    This claim is for $4,000.00 for exterior painting which was not done by the builder.
  2. [151]
    Mr Lohmann says that the exterior painting of the building was included in the Scope of Works.[36]
  3. [152]
    The builder says that exterior painting was never included as part of his cost of the renovation.[37]
  4. [153]
    The Scope of Works provides for ‘installation of paint finishes interior and exterior’. Exterior painting is therefore included within the contract.
  5. [154]
    In an email of 4 October 2016, Ms Jacques refers to savings and says ‘the external painting is around $4,000 saving’. In the absence of any contest by the owners as to the value of the external painting, I accept this as a reasonable valuation of the cost of external painting.
  6. [155]
    I am satisfied that external painting to the value of $4,000 was included in the contract. As this work was not done, I allow a negative variation of $4,000 for external painting.

Qleave

  1. [156]
    This claim is for the amount of $751.00 for Qleave.
  2. [157]
    Mr Lohmann says that Qleave was included in the Scope of Works, and was calculated on the contract price of $158,083 excluding GST, whereas the actual contract price was $146,904.85 excluding GST. He has calculated that the cost of the Qleave as $751.00.
  3. [158]
    The builder says that it never included Qleave as part of the cost of this renovation.[38]
  4. [159]
    The Scope of Works provides for Qleave as the last item on it.
  5. [160]
    As the Scope of Works provides for Qleave, and as the calculation of $751.00 is not challenged, I am satisfied that the contract included Q leave to the value of $751.00.
  6. [161]
    I allow a claim for a negative variation of $751.00 for Qleave.

Variations

  1. [162]
    I allow variations in favour of the owner in the total amount of $17,056.10:
    1. (a)
      Shed - $11,340.00
    2. (b)
      Exterior painting - $4,000.00
    3. (c)
      Supply of a vanity basin and mirror –$965.10
    4. (d)
      Qleave - $751.00

Counter-Application: Vertical Blinds

  1. [163]
    The builder agrees to pay the owners for replacement of vertical blinds in the sum of $2,666.00 as claimed.[39]
  2. [164]
    I allow the counter application for vertical blinds in the sum of $2,666.00.

Counter-application: late completion charges.

  1. [165]
    The owners claim late completion charges of $2,750.00 on the following bases:[40]

The contract prepared by Mr Jacques gave 63 days for practical completion meaning that it was due on or by 10 January 2017. Although they gave us verbal approval to move into the residence on 27 February 2017, he subsequently withdrew it and withdrew our right of access. This was however granted in writing on 13/3/2018 only after the QBCC mediator advised that he could continue to accrue late completion damages whilst on his impending 4-week overseas trip. We claim the penalty of $50 per day for 55 days being $2,750.00, having deducted 7 days for the additional bathroom works.

  1. [166]
    The builder says that a completion period does not apply:[41]

.. The stated period for completion referred to by Graham was within The First Contract, which the respondents withdrew from on 27 September 2016…. No further period for completion was discussed or agreed. In any event, the additional works requested by the respondents and delays by third-party trade suppliers did not allow for the works to be completed by 10 January 2017.

  1. [167]
    The effect of the relevant provisions of Schedule 1 to the contract are:
    1. (a)
      The written contract is dated 21 September 2016;
    2. (b)
      Item 13 provides that ‘the works must reach practical completion within 63 days after commencement, subject to clause 17’;
    3. (c)
      Item 14 provides that the anticipated start date is 31 October 2016; and
    4. (d)
      Item 15 has not been filled in as to a rate per day, but provides that if nothing is stated in the schedule, completion damages are $50 per day.
  2. [168]
    Clause 32.1 of the contract provides as to late completion damages that:

If the works do not reach practical completion by the end of the building period the owner is entitled to liquidated damages in the sum specified in item 15 for each day after the end of the building period to and including the earlier of:

  1. a)
    the date of practical completion;
  1. b)
    the date this contract is ended; and
  1. c)
    the date that the owner takes control of, possession of, or use of the site or any part of the site.
  1. [169]
    As I consider that the terms of the oral agreement incorporated the terms of the earlier written contract, these provisions as to late completion would apply. I will apply the actual start date of the works as the start of the building period.
  2. [170]
    The building work commenced on 8 November 2016. A period of 63 days after that is 10 January 2017.
  3. [171]
    Clause 17 provides as to claimable delays which give rise to an extension of time to the building. The relevant provisions are:

17.1 The building contractor is entitled to a reasonable extension of time to the building. If commencement of the carrying out of the works is delayed by a claimable delay.

17.2 A claimable delay means a cause beyond the building contractor’s sole control that was not reasonably foreseeable at the time the building contractor entered into this contract including but not limited to:

  1. a)
    a variation request by the owner or a request by the owner for a variation
  1. b)
    a variation requested by the building contractor if the need for the variation could not have been reasonably foreseen at the date of this contract
  1. c)
    a time allowance in excess of the allowance for that cause of delay stated in item 13

… or

  1. k)
    the industry shutdown being a three week period commencing on or about 22 December in each year, if construction during the Christmas period could not have been reasonably foreseen at the date of this contract.
  1. [172]
    The industry shutdown period of three weeks was from 22 December 2016 to 12 January 2017. The original start date under the written contract was 31 October 2016, and a period of 63 days after that is 2 January 2017, which means that construction during the Christmas period was foreseen.
  2. [173]
    The actual start date under the oral contract was 8 November 2016, and a period of 63 days after that is 10 January 2017. As the parties did not vary the building period, this means that construction during the Christmas period was still foreseen, and clause 17.2(k) would not apply.
  3. [174]
    The owners submitted that a further seven days should be allowed for the additional bathroom works. The builder has not made a submission as to the appropriateness of that allowance. An allowance should be made, and in the absence of contrary evidence, I will allow the further seven days submitted by the owners. This extends the end of the building period to 17 January 2017.
  4. [175]
    I have found that the builder is entitled to recover for variations. Specific time delays for those variations are not submitted. In the absence of evidence as to time delay caused by these variations, I am unable to extend the building period in that regard.
  5. [176]
    The owners gained access to the house on 13 March 2017. The time between 17 January 2017 and that date is 55 days.
  6. [177]
    I therefore allow 55 days at the rate of $50 per day as late completion charges, being the amount of $2,750.00.

Counter application: loss of income by Ms Lohmann

  1. [178]
    This claim is for loss of income by Ms Lohmann of $195.00.
  2. [179]
    The basis for this claim is set out in the counter-application[42] as being for loss of income by Ms Lohmann from her casual work at Charters Towers Funerals forward travel to Townsville to meet with lawyers ($130.00); plus time off work to attend site meeting with the QBCC ($65.00).
  3. [180]
    It is well-established that a party cannot claim for their own time in pursuing an application.[43] An exception can arise if they are providing the equivalent of legal services, but that is not the situation here.
  4. [181]
    I therefore make no allowance for this claim.

Counter application: Summary

  1. [182]
    I therefore allow amounts on the counter application in the total of $22,472.10, calculated as follows:
    1. (a)
      variations in favour of owner – $17,056.10
    2. (b)
      vertical blinds – $2,666.00
    3. (c)
      late completion charges – $2,750.00

Claims Allowed

  1. [183]
    I have allowed $12,454.20 as claim, plus the final stage payment of $16,159.53, making a total of $28,613.73 payable to the builder.
  2. [184]
    I have allowed $5,416.00 as a claim on the counter application, plus $17,056.10 for negative variations, making a total of $22,472.10 payable by the builder.

Interest

  1. [185]
    The builder seeks interest on his claim. If I were to award interest to the builder, I would also look to award interest to the owners on their counter application.
  2. [186]
    Clause  33.1  of  the written  contract  provides that the building contractor may charge the owner interest at the rate stated in item 8 of schedule 1 from the day on which an amount falls due to be paid to the building contractor up to and including the day that amount is paid.  No amount has been written in item 8 – the schedule provides that if nothing is stated, 18% per annum applies.
  3. [187]
    The entitlement to interest under clause 33.1 is not absolute, as the clause says that interest ‘may’ be charged. The default rate of 18% per annum is a high amount, having regard to prevailing commercial interest rates. The contract does not explicitly provide for interest to be paid on monies payable by the building contractor to the owner.
  4. [188]
    The question of interest which was provided for in a domestic building contract was discussed by the Tribunal in Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd:[44]

[30] I also observe that interest provisions are in the nature of liquidated damages for breach of the obligation to pay by the prescribed time. Liquidated damages are to be a genuine pre-estimate of the loss expected to be sustained upon a breach otherwise they may be unenforceable as a penalty if the amount charged is out of all proportion to the interest sought to be protected.

[31] Mr Haydock’s evidence was that, at the time the written contract was entered into, Lavish did not operate an overdraft and that a representative of the Master Builders’ Association told him that ‘25% was usual’. The representative did not give direct evidence in this proceeding and therefore did not give evidence of the facts and circumstances said to be ‘usual’. On the evidence before me, interest at 25% when a contractor is not operating an overdraft appears more in the nature of a penalty than a genuine pre-estimate of Lavish’s loss.

  1. [189]
    In this matter, monies are payable by each party to the other. I consider it would be inequitable to award interest at the default date for the builder (which appears more in the nature of a penalty than a genuine pre-estimate of the builder’s loss), when the owners may also have a claim for interest, but at a lesser commercial rate.
  2. [190]
    In the circumstances, I decline to award interest to either party on the amounts I have allowed to them.

Costs

  1. [191]
    The builder also seeks legal costs, which he estimated in his closing submissions to be in excess of $12,000.
  2. [192]
    Costs may be awarded under section 77(h) of the Queensland Building Construction Commission Act in a building dispute. Section 100 of the Queensland Civil and Administrative Tribunal Act provides that each party usually bears their own costs. Section 102 provides that costs may be awarded if the interests of justice require. The considerations as to which the tribunal may have regard in deciding whether to award costs are set out in section 102(3). These include the relative strength of the claims made by each of the parties to the proceeding.
  3. [193]
    The builder’s claim was for $39,310.79. I have found that his entitlement is for $28,613.73.
  4. [194]
    The owners counter application was for $14,865.90. I have found that their entitlement is for $22,472.10.
  5. [195]
    Each of the parties has made successful claims. There is no question of justice which favours either party, and no reason arises to not apply the usual provision that each party bears their own costs for the proceeding.
  6. [196]
    I make no order as to costs.

Orders

  1. [197]
    The result is that, after deduction of the owners allowed counter application of $22,472.10 from the builder’s allowed claim of $28,613.73, the owners owe $6,141.63 to the builder.
  2. [198]
    I order that Graham J Lohmann and Merrill C Lohmann pay the amount of $6,141.63 to Ian Clark Jacques.

Footnotes

[1]  Annexure A to the Application filed 27 September 2017, [1].

[2]  Ibid [2].

[3]  Ibid [4], [5].

[4]  Ibid [10].

[5]  Ibid [11].

[6]  Ibid [19].

[7]  Ibid [19].

[8]  Ibid [21], [22].

[9]  Ibid [26], [27].

[10]  Response and/or Counter-Application filed 7 November 2017, [6].

[11]  Ibid [11].

[12]  Ibid [14].

[13]  [2015] QCA 219.

[14]  Attachment L-15 to the respondent's submissions attached to the Response and/or Counter. Application filed 7 November 2017.

[15]  Ibid L-17.

[16]  Ibid L20.

[17]  Application attachment IJ-26.

[18]  Ibid IJ-25.

[19]  Closing submissions of the owners, p 4.

[20]  Affidavit of Meryl Lohmann filed 24 May 2018, [9].

[21]  Affidavit of Ian Jacques filed 11 July 2018, [1(e)].

[22]  Affidavit of Ian Jacques filed 11 July 2018, attachment 9k.

[23]  Ibid IJ-27.

[24]  Owners closing submissions, p 4.

[25]  Ibid p 5.

[26]  Builders closing submissions, p 2.

[27]  Annexure A to Application, p 5.

[28]  Owners closing submissions, p 5.

[29]  Annexure B to Counter Application, [1.3.2].

[30]  Builders closing submission, [5].

[31]  Affidavit of Graham Lohmann filed 21 May 2018, [48], [49].

[32]  Affidavit of Meryl Lohmann filed 4 May 2018, [3]-[6].

[33]  Affidavit of Graham Lohmann filed 21 May 2018, [53], [54].

[34]  Affidavit of Graham Lohmann dated 21 May 2018, [56]-[58].

[35]  Affidavit of Graham Lohmann filed 21 May 2018, [60].

[36]  Ibid [64].

[37]  Builders closing submissions, [6].

[38]  Ibid [7].

[39]  Ibid [12].

[40]  Owners closing submissions, p 2.

[41]  Affidavit of Ian Jacques filed 11 July 2018, [2(k)].

[42]  Clause 2.1 of Annexure B to Counter-Application.

[43]  Swindells v Hosking & Anor (No 2) [2012] QDC 17, [24]-[29].

[44]  [2017] QCAT 52, [30], [31].

Close

Editorial Notes

  • Published Case Name:

    Ian Clark Jacques v Graham J Lohmann and Meryl C Lohmann

  • Shortened Case Name:

    Jacques v Lohmann

  • MNC:

    [2019] QCAT 263

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    26 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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