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Instyle Homes Qld Pty Ltd v Middler[2017] QCAT 376

Instyle Homes Qld Pty Ltd v Middler[2017] QCAT 376

CITATION:

Instyle Homes Qld Pty Ltd v Middler & Anor [2017] QCAT 376

 

Instyle Homes Qld Pty Ltd

(Applicant)

 

v

 

Ryan Edward Middler

(First Respondent)

Hayley Anne Middler

(Second Respondent)

APPLICATION NUMBER:

BDL214-16

MATTER TYPE:

Building matters

HEARING DATE:

11 and 12 September 2017

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

8 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The applicant’s claim is dismissed.
  2. The respondents’ counter application is dismissed.
  3. The parties file and serve submissions as to costs within 7 days of the date of this order and each file and serve any submissions in reply within 7 days thereafter.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – where progress payment claimed – whether builder entitled to make claim – where work not completed before claim made

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – whether work defective or incomplete – when incomplete work becomes defective work

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PEFORMANCE OF WORK – DAMAGES – stages contract – entire contract – owners giving credit for cost of work under contract – no loss to owners

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B,
s 21, s 22, s 23,

Building Regulation 2006 (Qld), s 27(2),
s 27(3), s 27(4)

Amann Aviation Pty Ltd v Commonwealth (1990) 174 CLR 64; [1991] HCA 54

Hoenig v Isaacs [1952] 2 All ER 176

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 476

McGibbo Pty Ltd v Willex Projects Pty Ltd [2013] QDC 313

Robinson v Harman (1848) 1 Exch 850

Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18

Tan Hung Nguyen Design Homes Pty Ltd [2004] NSWCA 178

Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132

REPRESENTATIVES:

 

APPLICANT:

Represented by R M De Luchi of Counsel instructed by Small Myers Hughes, Solicitors

RESPONDENT:

Ryan Edward Middler appeared on his own behalf and represented both respondents

REASONS FOR DECISION

  1. [1]
    Mr and Mrs Middler engaged the applicant builder to build them a home at Upper Coomera.  They entered into an older form Queensland Building and Construction Commission (QBCC) New Home Construction Contract[1] involving designated stages of construction for the build at a price of $455,000.  The contract was signed on 11 August 2015 and work started in September 2015.  The builder invoiced the owners for the slab stage and frame stage respectively on 1 February 2016 and 15 March 2016.
  2. [2]
    The owners paid the progress claim for the slab stage and paid $20,000 of the claim of $68,250 for the frame stage when the owners became concerned about the workmanship of the job and particularly that the framing stage had not in fact been achieved.
  3. [3]
    The owners sent a letter entitled Notice of Default to the builder on 7 April 2016 listing numerous items claimed to be defective in respect of both slab and frame stages and requiring the builder to remedy them within 10 days.  Failing that they advised they intended to terminate the contract.
  4. [4]
    The items of complaint were not rectified within the time set and the owners purported to terminate the contract on 22 April 2016.  The builder some months later purported to terminate the contract on the basis of the owners’ repudiation of the contract in failing to pay the third progress claim for the frame stage.
  5. [5]
    The builder instituted proceedings in the Tribunal seeking recovery of the balance owing for the framing stage progress payment of $48,250.  For their part, the owners counterclaim the sum of $64,009.06 for the costs of rectification, mortgage interest and costs of supervision.

The Contract

  1. [6]
    The contract was a designated stages contract providing for progress payments to the builder at various stages of construction.  By clause 17.4 of the general conditions to the contract, the contractor was entitled to claim a progress payment when the contractor had achieved completion of each of the stages set out in item 10 in the Schedule. 
  2. [7]
    Item 10 provided for payment of a deposit; a payment of 10 per cent of the contract price at the base stage; at the framing stage 15 per cent; and then followed by an enclosed stage, a fixing stage and then practical completion and at each stage the builder would be entitled to a progress payment.
  3. [8]
    Item 17.5 provided:

A progress claim must:

  1. (a)
    be in writing using a QBCC Form 3 – Progress Claim or other similar written notice;
  2. (b)
    be accompanied by a QBCC Form 4 – Notice of Dispute of Progress Claim or similar appropriate written notice and any certificates of inspection relevant to the payment stage;
  3. (c)
    certify that the work under this Contract has been completed to the relevant stage; and
  4. (d)
    be accompanied by invoices, receipts or other documents showing the cost to the Contractor of any Prime Cost Item or Provisional Sum in respect of which a claim for payment is made.
  1. [9]
    The expression “frame stage” is defined in clause 29 as meaning that stage when the building frame is completed and ready for inspection by the assessing certifier.
  2. [10]
    The expression “assessing certifier” used in that definition is also defined in clause 29 as referring to the private certifier or Local Government Authority responsible for granting the relevant building approvals and authorisations for the Works.

Progress Claims

  1. [11]
    The builder made a progress claim for completion of the base stage by an invoice dated 1 February 2016, not by way of the necessary QBCC Form 3.  The invoice was for work done described as “Progress Claim 2: Payment for 10% total of job amount for completion of concrete house slab.”  The owners paid that.
  2. [12]
    On 17 March 2016 the owners received another invoice dated
    15 March 2016 described as “Progress Claim 3: Payment for 15% total of job amount for completion of frame stage.”  The amount claimed was $68,250 inclusive of GST.  That the claim was made at that time is not disputed by the builder[2] although the builder maintains the progress claim was by way of a QBCC Form 3 – Progress Claim document as required by the general conditions of contract.  It seems clear however, regardless of the format of the claim, that there was no QBCC Form 4 – Notice of Dispute of Progress Claim attached, nor was it accompanied by any certificates of inspection relevant to the stage as stipulated by clause 17.5(b) of the general conditions of contract.  In so far as it matters, I prefer the evidence of Mr Middler to that of Mr Lee concerning the format of the claim.  I find it was simply by way of invoice.  Mr Lee who proposed the claim was by way of QBCC Form 3 did not impress me as a witness but Mr Middler I found to give convincing and honest evidence.
  3. [13]
    The owners paid $20,000 as part payment of the progress claim and as stated above, following a site meeting on 23 March 2016 with the builder’s site supervisor, the owners were left with serious concerns about the completion of the frame stage and workmanship.
  4. [14]
    On 24 March 2016 the owners emailed the builder disputing that the framing stage had been completed.  Significant defects were identified in the structure and owners said the balance of the progress claim would not be paid until the owners concerns were addressed.
  5. [15]
    Not receiving a response from the builder, the same email was forwarded on 1 April 2016 to which the builder’s sales manager did reply saying he had suffered a family tragedy and:

Ryan do as you wish, Ben please sort out Ryan and his problems … in the meantime do not progress with any more work on the other stages of his house…. Make payment as and when you see fit.  Don’t bother me either way….

  1. [16]
    The building certifier inspected the work on 31 March 2016 and issued a Form 61 – Non Compliance Notice dated 1 April 2016 advising the builder the framing stage work did not comply with the building development approval.  The reasons for non-compliance were substantial and the builder was advised a further inspection would be necessary.
  2. [17]
    On 7 April 2016 the owners sent a Notice of Default to the builder pursuant to clause 27.1 of the contract general conditions, giving notice that they intended to terminate the contract if an extensive list of breaches of contract were not attended to within ten days of the date of letter.  Those breaches included allegations that the base stage had not been completed properly; there were numerous items of defective work in the framing stage; the builder had not been entitled to issue the framing stage progress claim; the claim was not in the requisite QBCC Form 3 progress claim format nor was it accompanied by the required QBCC Form 4 document to allow the owners to dispute the claim nor a certificate of inspection by the certifier.
  3. [18]
    The builder response was to write to the owners on 11 April 2016 to say a crane was going to be sent to collect the frame and trusses.  On that same day however the solicitors for the builder wrote to the owners disputing most of the owners allegations and stating in respect of the frame, “Our client is confident the frame will be certified by the certifier as being structurally sound.”  In respect of certificates the solicitors stated they would be provided upon payment of the account.
  4. [19]
    On 12 April 2016 there was a further inspection by the certifier and yet another Form 61 Non Compliance Notice dated 13 April 2016 was issued to the builder in respect of the framing stage.  This notice specified two additional requirements for completion and advised yet a further inspection would be necessary.
  5. [20]
    By letter dated 22 April 2016 the owners gave notice of termination of contract to the builder’s solicitors on the basis the breaches identified in the letter of 7 April 2016 had not been remedied.  The builder was asked to vacate the site.
  6. [21]
    Some two months later on 28 July 2016, the builder’s solicitors gave a written notice of default to the owners demanding payment of the balance of the amount claimed in progress claim 3 within ten days of that date or the builder would terminate the contract.  By further letter dated 12 August 2016 those solicitors in turn purported to terminate the contract.

Termination

  1. [22]
    The owners’ Notice of Default was given pursuant to clause 27.1 of the contract.  The itemised list of defective work alleged was extensive.
  2. [23]
    Clause 27.1 provided:

If:

  1. (a)
    a party is in substantial breach of this Contract; and
  2. (b)
    the other party gives a notice to the party in breach stating the intention of the party giving notice to terminate the Contract if the breach is not remedied within 10 business days from the giving of the notice; and
  3. (c)
    the breach is not so remedied, then, the party giving that notice may terminate this Contract by a further written notice given to the party in breach and may recover from the party in breach all  damages, loss, cost or expense occasioned to the party so terminating by or in connection with the breach or that termination and may set off such claim against payment otherwise due by the party so terminating.
  1. [24]
    Clause 27.4 provided:

Substantial breach by the Contractor includes, but is not limited to:

  1. (a)
    failing to perform the work under this Contract competently;
  2. (b)
    failing to provide materials which comply with this Contract;
  3. (c)
    unreasonably failing to replace or remedy defective work or materials
  4. (d)
    unreasonably failing to perform the work diligently or unreasonably delaying, suspending or failing to maintain reasonable progress….
  1. [25]
    “Work under this Contract” is defined in clause 29 to mean, “all that work necessary to build the Works in accordance with the plans and specifications and this Contract….”
  2. [26]
    The certifier, Mr Prostano, gave evidence.  He said he inspected the framing stage work on 31 March 2016 but had found the work “not in a state to initiate a frame inspection.”[3]  He found numerous things incomplete or requiring installation in accordance with the relevant building standard AS 1684.2-2010. 
  3. [27]
    He came back for another inspection of the frame on 12 April 2016.  He found very little had been done since the first inspection.[4]
  4. [28]
    The owners engaged Mr Kelly, a building consultant, to inspect the work.  He made an inspection on 11 May 2016 and provided a report in which he cited numerous problems with the work, including the timber frame overhanging the slab which prevented tie down of frame to slab and lintels inadequately supported by studs, which led him to conclude that the frame did not comply with the requirements of the Building Code of Australia, Australian Standard 1684.2-2010 nor the QBCC standards and tolerances guide. 
  5. [29]
    The builder has engaged Mr Dyer who didn’t attend the site but gave a report in May 2017 based on perusal of the contract, the report of Mr Kelly, affidavits by the builder’s manager and director and some other material.  It appears he was not briefed with the two Forms 61 from the certifier however, nor the builder’s progress claim for the frame stage.
  6. [30]
    Mr Dyer disagreed with many items identified as defective work by Mr Kelly.  Mr Dyer maintained that many such items were not defective work but incomplete work because “At the date of termination, it appears the project was at a stage of internal frames were being completed in preparation for assessment by the certifier.” 
  7. [31]
    Mr Dyer said that about such things as the bottom plates being unsupported by the slab and extending out 92mm and 140mm respectively from the slab in the garage opening despite the lintel above the opening being supported by studs on top of the unsupported plates; the jamb stud on the sliding door opening to the laundry separated from and not supported by the bottom plate and no tie down being possible because of insufficient room; the laminated beam used for the lintel opening in the living room cut short at both ends and sitting on only 1.5 studs instead of the requisite 2 studs; in the external alfresco area the laminated beam supported by only one stud and that simply a short length of timber not touching the bottom plate nailed to a full height adjacent stud. 
  8. [32]
    There were numerous other such items identified as defective work by Mr Kelly but by Mr Dyer as incomplete work being completed in preparation for assessment by the certifier.  There were approximately 15 such items listed by Mr Kelly in his report.
  9. [33]
    Mr Kelly also pointed to numerous places throughout the home (approximately another 15) where the 70mm wide bottom plates for much of their length were overhanging the slab variously from 10mm to almost the entire width of the plate which he said made tie down impossible.  In respect of these items Mr Dyer conceded a defect did exist which “would have required rectification for frame approval and prior to lining of walls.”
  10. [34]
    At hearing Mr Dyer was asked if he knew the frame had been inspected twice.  Mr Dyer said he did not.[5]  He knew about one frame inspection only, that on 13 April 2016.  When he made his report he did not know that the builder had also claimed completion of the frame stage.[6]
  11. [35]
    Knowing that however did not make much difference to Mr Dyer in respect of his opinion about the work being incomplete rather than defective.  He said it was common practice for a builder to submit progress claims 7 to 14 days before the stage work was finished to give owners time to pay.[7]  In his opinion framing stage work would be defective only if the next stage of installing linings had commenced and the builder had been paid for the framing stage.  Then he saw there was “potential” for the work to be classed as defective.[8]  Until there was a handover of trades from builder to plasterer the builder’s work was incomplete only.
  12. [36]
    Mr Kelly reiterated what he said in his report, that defective work was work that did not comply with the Building Code of Australia (BCA), any reference standards and the QBCC Guide to Standards and Tolerances or other requirement of the building regulations.[9]  He said all the items he listed in his work were defective work, not incomplete work.  He said the builder is responsible for calling for a frame inspection once the frame is complete and ready for inspection.  If an inspection is called for and the frame is not complete it is defective.  He said here where a certifier requires a re-inspection there are major items requiring work.  He said the items in both Forms 61 listed major items requiring rectification.  He said just the work identified in the second Form 61 requiring completed tie down and completion of bracing nail off would have required a large portion of the frame to be rebuilt.[10]  He said and that ignored the work outstanding from the first Form 61.  Mr Kelly said when he did his inspection for the purpose of a report, items listed in both Forms 61 were still incomplete.
  13. [37]
    Mr Kelly said it is not industry practice for builders to claim for completion of the frame stage weeks before completion.  He said when he had been issued with a Form 16 in respect of the frame stage that would usually be the time to send out a claim.
  14. [38]
    Regardless of what Mr Dyer says is a common practice of builders to send out a progress claim some weeks before the stage is completed, which I do not accept is a standard industry practice, the builder’s entitlement to claim money for a stage of the contract is defined by the terms of the contract. 
  15. [39]
    By clause 17.4 of the general conditions of contract the contractor is entitled to claim a progress payment when the contractor has achieved completion of each of the stages listed in schedule item 10.  Schedule item 10 provided for base stage, frame stage, enclosed stage, fixing stage and practical completion.  Frame stage is defined in clause 29 to mean that stage when the building frame is completed and ready for inspection by the assessing certifier.
  16. [40]
    The builder argues the frame was ready for inspection by the certifier and therefore the builder was entitled to issue its progress claim.[11]  The builder says ready for inspection does not mean ready or able to be certified.  That proposition ignores the requirement in clause 17.4 that the builder must have achieved completion of the framing stage before sending out a progress claim for the stage. 
  17. [41]
    Frame stage is defined in clause 29 to mean that stage when the building frame is completed and ready for inspection by the assessing certifier.  That definition reflects a regulatory requirement[12] that a builder who makes a call for a stage inspection of a certifier must certify that the frame has been completed.  The call (notice for inspection) may be written or verbal.[13]  Accordingly if a builder calls for a frame stage inspection the builder is certifying that the frame stage is complete. 
  18. [42]
    It is clear that the frame stage was not complete when the builder claimed the progress payment for the stage nor when it called for the certification of the stage by the certifier.  Even if it could be suggested that the builder mistakenly believed the frame stage was ready for the first inspection, little was done to rectify the outstanding matters listed in the Form 61 issued after the first inspection before the second inspection was called for.  The builder must have known it had not fixed all the items listed in the first Form 61 when it called for the second inspection.
  19. [43]
    Issuing the progress claim for the frame stage before that stage was completed and ready for certification constituted a breach of the contract by the builder.[14]
  20. [44]
    I accept Mr Kelly’s evidence that when he visited the site he found the work seriously defective, both as to base and frame.  The builder had called for the certifier’s inspection of completion of the stage.  The work therefore could not be described as incomplete work being completed in preparation for assessment by the certifier as suggested by Mr Dyer.  It stopped being that when the builder asked the certifier to inspect the completed work.  
  21. [45]
    The owners were entitled to give the notice of default of 7 April 2016.  The builder had warranted that it would build the house in an appropriate and skilful way and with reasonable care and skill and in accordance with all relevant laws and legal requirements.[15]  The builder was in breach of such warranties, in breach of the contract in failing to perform work under the contract competently, in breach in claiming the frame stage was complete and ready for certification and in breach in issuing the progress claim for that stage when it did.
  22. [46]
    The notice of default by the owners was in accordance with the requirements of clause 27.  The builder failed to rectify the defective work within the stipulated 10 days and failed to address the issue of the premature claim for stage payment.  Indeed, instead of rectifying defects, the builder threatened to send a crane to collect the frame and trusses and the builder’s solicitors contested the owners’ allegations.  On the second inspection by the certifier another Form 61 Non Compliance Notice was issued to the builder in respect of the framing stage.  This notice specified two additional significant problems to be rectified and advised yet a further inspection would be necessary.
  23. [47]
    The owners were entitled to terminate the contract by the written notice of termination of 22 April 2016.

Quantum Meruit

  1. [48]
    Is the builder entitled to claim in quantum meruit for the work done prior to termination for which it has not been paid?  It is not.
  2. [49]
    As stated, the building contract was a stages contract.  The builder was entitled to be paid for its work at completion of the various stages as provided for in the contract.  There was no money due the builder otherwise than after completion of a stage.  Such a contract is an entire contract. 
  3. [50]
    Most building contracts are entire contracts though it depends on the construction of the contract.[16]  A contract may be an entire contract though subject to stage payments throughout the course of the contract.[17]   If the contract is entire and the contract is terminated by the other party because of breach, work done for incomplete stages cannot be claimed.[18]  The builder’s right to be paid anything for the incomplete stage was never acquired.[19]
  4. [51]
    Such is the case here.  The contract was an entire contract subject to stage payments. 
  5. [52]
    Clause 27.1 of the general conditions provides that if a party is in substantial breach and the other party gives a notice of default which is not remedied:

…the party giving that notice may terminate this contract by a further written notice given to the party in breach and recover from the party in breach all damages, loss, cost or expense occasioned to the party so terminating by or in connection with the breach or that termination and may set off such claim against payment otherwise due by the party so terminating.

  1. [53]
    The contract permits payments otherwise due the builder to be taken into account in set off against the cost of rectification of defective building work.  There is no provision for the value of incomplete stage work to be taken into account in determining any balance due between the parties.  It is to be contrasted with provisions such as that in Tan Hung Nguyen Design Homes Pty Ltd[20] where if the contract was terminated because of the default of the builder two outcomes were expressly provided for.  Where the reasonable cost of completion of the work exceeded that otherwise due the builder the difference was a debt due the owner from the builder.  However if the reasonable costs of completion was less than otherwise due under the contract the difference was to be a debt payable to the builder, the builder not entitled to further payment however until the work was completed.
  2. [54]
    That is an entirely different provision to the contract at hand.  The general law in respect of entire contracts applies here.  The contract does not purport to alter that.  The only monies that the builder is entitled to set off against the claim of the owners to damages, loss and expense are any accrued stage payments as at date of termination, which are nil.
  3. [55]
    As stated in Tan Hung Nguyen Design Homes Pty Ltd:[21]

The entire contract principle is ‘an essential and necessary sanction to discourage the deliberate breaking or abandonment of contracts, which would be absent if in such cases the builder was entitled to demand partial payment notwithstanding his own breach’: see Hudson's Building & Engineering Contracts (Sweet & Maxwell 1995, 11th Edition at p 476, 4.007). Thus, according to Hudson (at pp 476 - 477, 4.008):

‘[th]e vast majority of priced building contracts, sophisticated or simple, for the construction of a block of flats or a garden shed, will be construed as being entire, even where there is no express undertaking to complete, or whether the job is to be cost-based. Only contracts of a day-to-day jobbing character are likely to escape such an interpretation, which in the absence of express provision will depend on examination of the ‘matrix' or ‘genesis and aim' of the transaction between the parties’.

The Owners Claim to Damages and Loss

  1. [56]
    In their counter application the owners claim $42,392.74 for costs of rectification of defective work.  Unfortunately there is little by way of documentary evidence to support that entire claim.
  2. [57]
    There is the invoice from the builder (Maintrade) rectifying and completing the frame stage work.  That cost was $25,356.  The builder disputes the reasonableness of those charges.  It was suggested to Mr Jefferson from Maintrade that the rectification work would have taken at most 5 days with 3 tradesmen and should have cost significantly less than that charged. 
  3. [58]
    Mr Jefferson disagreed pointing out that his company was rectifying defective work, not building new, and that was a far more onerous and costly exercise.  The work required demolition, disconnection, reconnection and sundry other time consuming work.  Mr Kelly thought the Maintrade invoice was reasonable.[22]  In so far as other opinions were expressed as to the reasonableness of the charges of Maintrade I prefer the evidence of Mr Jefferson and Mr Kelly about the extent of the work and the reasonableness of Maintrade’s charges.  I find them reasonable costs of rectification and completion of the frame stage work pursuant to the contract.
  4. [59]
    Mr Middler says to finish the project he obtained an owner builder’s licence and he engaged a licensed builder to assist him with additional rectification work needed in addition to the Maintrade work in respect of the slab and frame.  He says he paid that person $5,570 for additional framing work and $1,925 for the concreting (total $7,495).  He presents no receipts for those payments.
  5. [60]
    Mr Middler lists such things done by that other builder as adjustment of all door, wardrobe and opening header heights to reflect the approved construction plans, conversion of the rear garage roller door to a sliding door due to an absent slab rebate, concreting works including excavation and pouring of footings to the rear of the garage retaining wall. 
  6. [61]
    The lack of rebate to the garage floor was an issue at hearing as to issues about the footings.  Most of the other items concerning extra framing work appear to be items of work falling somewhere between frame and fixing stage and oftentimes required of a builder before he hands over work to a plasterer. I accept the work concerned was necessary and the amount the owners claim for it seems reasonable. 
  7. [62]
    That leaves an unexplained balance claim of $9,541.74 for costs of defective work.  Those costs are not detailed, explained or supported by documentary evidence.  Indeed some may be legal costs incurred by the owners.  They cannot be allowed here as costs of rectification without more.  There has been no evidence about them, nor has the builder been given an opportunity to test and comment about such.
  8. [63]
    Similarly, there is no evidence to support the claim to $9,016.32 interest incurred by the owners on their mortgage and the $12,000 claimed for Mr Middler’s supervision of rectification work.  They cannot be allowed.  If there was evidence about such things it should have been filed in the Tribunal before hearing as directed[23] and a copy of the evidence supplied to the builder.  They were not and cannot be entertained now.
  9. [64]
    At hearing the owners also claimed recovery of their part payment of $20,000 for the frame stage progress claim which they say they paid by mistake.
  10. [65]
    But even accepting the part payment was made by mistake, the owners are not necessarily entitled to recover it from the builder.
  11. [66]
    The owners are entitled to recover their damages and loss.  That is they are entitled to recover such amount as will put them in the same position, so far as money can do so, as if the contract had been fulfilled.[24]  That is difficult to assess given the owner became an owner builder and completed the job that way.  Had another contractor been engaged to complete the work under the contract any additional cost to the owners of completing the contract would be recoverable from the builder.  There is no evidence of that cost of completion, whether it was greater or less than the original contract price agreed with the builder. 
  12. [67]
    There is evidence of cost of completion of the frame stage work to the owners.  Have the owners suffered loss in respect of the frame stage?  Have they paid more than they would have had to pay if the builder had done the frame stage work properly to completion? 
  13. [68]
    To ascertain loss the normal rule applies that credit is given for any benefit acquired under the contract:

… If under a building contract the owner decides to sue for damages he must give credit for what the work would have cost if properly completed or performed – Mertens v Home Freehold [1921] 2 KB 526.[25]

  1. [69]
    Under the contract the agreed cost of the frame stage was $68,250.  After the work by Maintrade and the additional work done by the builder engaged directly by the owner they have got what was bargained for under the contract.  It has cost them the initial payment of $20,000; the Maintrade cost of $25,356; and the independent builder’s work which has cost $7,495.  That totals $52,851.  They must however bring into reckoning the sum they would otherwise have had to pay the builder for that work if that work had been done properly, namely $68,250, which is more than they have had to pay.
  2. [70]
    The owners have not sustained any compensable loss.
  3. [71]
    The appropriate order is the application of the builder is dismissed because the builder is entitled to nothing under the contract, and the counter application of the owners is also dismissed.
  4. [72]
    The parties should be provided with an opportunity to make submissions about costs.

Footnotes

[1]  Version November 2013.

[2]  Ex 5, [22].

[3]  Ex 12, [3].

[4]  Transcript (T) 2-41 Line (L) 22.

[5]  T1-25 L 46.

[6]  T1-26 L13.

[7]  T1-26 L32-3.

[8]  T1-36 L40-41; T1-37 L35; T1-38 L13-14.

[9]  T2-3 L28-31.

[10]  T2-28 L38.

[11]  T2-75 L26-29.

[12] Building Regulation 2006 (Qld), s 27(2).

[13] Ibid, s 27(3).

[14] McGibbo Pty Ltd v Willex Projects Pty Ltd [3013] QDC 313, [69] – [71].

[15]  General conditions clause 3.2(a), 3.2(c)  and 3.2(d); Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 21, s 22 and s 23.

[16] Hoenig v Isaacs [1952] 2 All ER 176, 181.

[17] Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18.

[18] Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132, [100].

[19] McDonald v Dennys Lascelles Ltd (1933) 48 CLR 476, 477 (Dixon J as he then was).

[20]  [2004] NSWCA 178.

[21] Tan Hung Nguyen [2004] NSWCA 178, [23] (McColl J).

[22]  T2-7 L9.

[23]  Order made 29 March 2017.

[24] Robinson v Harman (1848) 1 Exch 850; Amann Aviation Pty Ltd v Commonwealth [1991] HCA 54; (1990) 174 CLR 64.

[25] Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18, [23].

Close

Editorial Notes

  • Published Case Name:

    Instyle Homes Qld Pty Ltd v Middler & Anor

  • Shortened Case Name:

    Instyle Homes Qld Pty Ltd v Middler

  • MNC:

    [2017] QCAT 376

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    08 Nov 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Amann Aviation Pty Ltd v Commonwealth (1990) 174 CLR 64
2 citations
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Cite 1 - (1990) 174 CLR 64
Cite 2 - (1990) 174 CLR 64
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54
2 citations
Jump To
Cite 1 - [1991] HCA 54
Cite 2 - [1991] HCA 54
Hoening -v- Isaacs (1952) 2 All E.R. 176
2 citations
Jump To
Cite 1 - (1952) 2 All E.R. 176
Cite 2 - (1952) 2 All E.R. 176
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 476
2 citations
Jump To
Cite 1 - (1933) 48 CLR 476
Cite 2 - (1933) 48 CLR 476
McGibbo Pty Ltd v Willex Projects Pty Ltd [2013] QDC 313
1 citation
Jump To
Cite 1 - [2013] QDC 313
Mertens v Home Freehold (1921) 2 KB 526
1 citation
Jump To
Cite 1 - (1921) 2 KB 526
Robinson v Harman (1848) 1 Ex Ch 850
2 citations
Jump To
Cite 1 - (1848) 1 Ex Ch 850
Cite 2 - (1848) 1 Ex Ch 850
Rocci v Diploma Construction Pty Ltd [2004] WASC 18
3 citations
Jump To
Cite 1 - [2004] WASC 18
Cite 2 - [2004] WASC 18
Cite 3 - [2004] WASC 18
Tan Hung Ngyuyen v Luxury Design Homes Pty Ltd (2004) NSWCA 178
3 citations
Jump To
Cite 1 - (2004) NSWCA 178
Cite 2 - (2004) NSWCA 178
Cite 3 - (2004) NSWCA 178
Thompson Residential Pty Ltd v Hart [2014] QDC 132
2 citations
Jump To
Cite 1 - [2014] QDC 132
Cite 2 - [2014] QDC 132

Cases Citing

Case NameFull CitationFrequency
Allen v Queensland Building and Construction Commission [2023] QCATA 661 citation
1

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