Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Van Der Westhuizen v Samcol Homes Pty Ltd[2019] QCAT 171

Van Der Westhuizen v Samcol Homes Pty Ltd[2019] QCAT 171

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Van Der Westhuizen v Samcol Homes Pty Ltd & Anor [2019] QCAT 171

PARTIES:

IAN VAN DER WESTHUIZEN

(applicant/first respondent by Counter Application)

v

SAMCOL HOMES PTY LTD

(respondent)

SONIA VAN DER MERWE

(second respondent by Counter Application)

APPLICATION NO/S:

BDL213-15

MATTER TYPE:

Building matters

DELIVERED ON:

27 June 2019

HEARING DATE:

31 May 2017

1 June 2017

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. Samcol Homes Pty Ltd is to pay Ian Van Der Westhuizen $1,108.91.
  1. Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 29 July 2019.
  2. If any Application for costs is made:
  1. (a)
    the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 26 August 2019;
  2. (b)
    the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 9 September 2019;
  3. (c)
    the Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00pm 9 September 2019.
  1. If no Application for costs is made in accordance with Order 2 then there shall be no order as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – whether home owner entitled to re-imbursement of moneys paid to contractor – whether paid under a mistaken belief – whether contractor ought to be relieved of repayment where mistake in terms of written contract

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL whether home owner entitled to damages for work not completed in accordance with the contract where home owners had agreed practical completion achieved

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – Domestic Building Contracts Act 2000 (Qld) – where contractual variations – where variations did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld) – where owner agreed to variation work – whether contractor entitled to claim by way of quantum meruit – whether section 84 of the Domestic Building Contracts Act clearly abrogated right to restitutionary claim

Domestic Building Contracts Act 2000 (Qld), s 18, s 79, s 84

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

Queensland Building and Construction Commission Regulation 2003 (Qld), s 34B

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

CMF Projects Pty Ltd v Riggall & Anor [2016] 1 Qd R 187

Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) (2009) ALR 661

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353

Dyer v Spence [2017] QCAT 211

Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272

APPEARANCES & REPRESENTATION:

 

Applicant/Respondents by Counter application:

PG Jeffery instructed by Evans Lawyers

Respondent/Counter applicant:

B Ledger of Barron & Allen Lawyers 

REASONS FOR DECISION

  1. [1]
    Mr Van Der Westhuizen and Ms Sonia Van Der Merwe (the Home Owners) contracted with Samcol Homes to build a new house.  The contract was a fixed price contract and was signed on or about 5 September 2013 (the Contract). The Home Owners contended that they signed two contracts[1]and that they were different. At the commencement of the hearing the Home Owners’ counsel confirmed that the point would not be pursued. 
  1. [2]
    After practical completion was agreed to have been achieved disputes arose between them. Mr Van Der Westhuizen commenced these proceedings. Samcol Homes disputes the amounts claimed are owing, with the exception of some minor items that are conceded and counterclaims against both of the Home Owners.
  2. [3]
    Mr Van Der Westhuizen is the applicant and bears the onus of proving his claims on the balance of probabilities. Similarly, Samcol Homes is the applicant in respect of its counter application and bears the onus of proving its claims on the balance of probabilities.
  3. [4]
    Mr Van Der Westhuizen acted for himself in outlining his claims in the original Application.[2]  The claims are not set out with the same precision as they might have been if they were formulated by legal representatives. Samcol Homes’ Response and Counter Application[3] was prepared by its solicitors. The Home Owners’ Response to the Counter Application[4] was prepared by their solicitors. Both parties’ claims and evidence have significantly evolved over time resulting in numerous inconsistent propositions having been made by Mr Van Der Westhuizen and Mr Jacobs, Samcol Homes’ sole director, which reflects poorly on the credibility of both of them.
  4. [5]
    Mr Van Der Westhuizen’s Application originally claimed a variety of orders including $20,000 in respect of the pool, an unspecified amount in respect of damages, completion of incomplete work in relation to the pool fence, production of a complete legible copy of the Contract, production of various invoices in respect of provisional sum and prime cost items, retaining wall, fencing and specified items. Mr Van Der Westhuizen and Samcol Homes were directed to provide a table setting out details of their claims and to respond to the other’s claims.[5] 
  5. [6]
    Mr Van Der Westhuizen claims as articulated in the final submissions are for $20,000 in respect of the pool, $27,883.95 for damages for inferior items or works not completed, which were specified inclusions within the Contract, an amount for GST and Builder’s margin to be assessed by me, interest and costs.
  6. [7]
    Samcol Homes seeks payment for three documented variations, reimbursement for the costs of supplying plans and claims quantum meruit for work performed for the benefit of the Home Owners. The Home Owners deny any amount is owing to Samcol Homes.    

Should Samcol Homes reimburse the $20,000 paid to it for the pool?

  1. [8]
    I am not satisfied that Mr Van Der Westhuizen is entitled to restitution in respect of this item.
  2. [9]
    Mr Van Der Westhuizen claims reimbursement of $20,000 paid to Samcol Homes for the pool. He claims that the pool was an included specified inclusion in the Contract and that he paid the $20,000 under a mistaken belief that the pool was not included in the Contract sum because at the time he had not been provided with a complete copy of the Contract by Samcol Homes.
  3. [10]
    I accept that, where a payment is made by mistake as to a party’s obligations to make the payment, there is a prima facie liability in the recipient of the payment to make restitution. The prima facie liability to make restitution may be displaced where the recipient points to circumstances, which show it would be inequitable for the payment to be refunded or, in other words, the recipient shows that its receipt or retention of the payment is not unjust.[6]
  4. [11]
    For the reasons set out below,  I find that at the time Mr Van Der Westhuizen paid the amount of $20,000 he knew that the Contract, in error, provided that the pool was included as part of the scope of work.
  5. [12]
    Samcol Homes concedes that the signed specification inclusions list includes a reference to an ‘In Ground Concrete Pool’ but contends that:
    1. (a)
      prior to the Contract being signed, the Home Owners could not afford the pool, it was agreed that it be removed from the Contract scope of works and the price adjusted but the reference was left in the specification in error. Essentially Samcol Homes contends that it is disingenuous of the Home Owners to claim the amount was paid for the pool under a mistaken belief it was not part of the Contract sum. It argues that this is because it was discussed and agreed to be omitted prior to entering into the Contract so that there was a mistake in the Contract as signed. Samcol Homes contends that the money was paid voluntarily in accordance with an oral arrangement and ought not be ordered to be refunded. Samcol Homes did not specifically seek ‘rectification’ of the Contract to have the reference to the pool removed from the Contract but sought to be relieved of the consequences of the reference included in the written Contract by mistake; and    
    2. (b)
      alternatively, the money was paid pursuant to a settlement agreement referred to by Mr Van Der Westhuizen in the Application, which was not denied by Samcol Homes in the Response and was not sought to be set aside by Mr Van Der Westhuizen nor was a breach of the settlement agreement claimed.
  1. [13]
    Mr Van Der Westhuizen accepts that there was an oral agreement, under which the Home Owners were to pay an additional sum of $20,000 for the pool. There is evidence before me, which I accept, that the parties agreed both before and after the Contract was signed that an additional $20,000 would be paid for the pool.
  2. [14]
    Despite this admission, he contends that the terms of the Contract:
    1. (a)
      supersede any prior agreement relying upon the ‘entire agreement’ clause;[7] and
    2. (b)
      upon a proper construction of the Contract, it includes a pool within the scope of work, having regard to the order of precedence clause, which prefers special conditions to general conditions or plans when resolving a discrepancy.[8]  The document, which refers to the pool, is incorporated by reference as Special Conditions.[9] 
  3. [15]
    I accept that ordinarily written contracts are to be interpreted without regard to extrinsic evidence. I also accept that on the face of the written contract, applying the entire agreement clause and the order of precedence clause, the pool would be included as part of the scope of works as the document, which includes the reference to the pool, takes precedence over the other contract documents including:
    1. (a)
      the description of the works at item 3 of the contract schedule, which refers only to construction of a new dwelling and not to a pool;
    2. (b)
      the progress payment stages at Appendix Part D makes no reference to a pool; and
    3. (c)
      the plan dated 10 January 2013 refers to ‘future’ pool rather than pool.
  4. [16]
    The Tribunal is granted broad powers to resolve building disputes, including to order the payment of an amount found to be owing by one party to another,[10] order relief from payment of an amount claimed by one party to another,[11] award damages and interest on damages,[12] order restitution[13] and declaring any misleading, deceptive or otherwise unjust contractual term to be of no effect or otherwise vary a contract to avoid injustice.[14]
  5. [17]
    In seeking orders in these proceedings, no party referred me specifically to any of these powers conferred upon the Tribunal.
  6. [18]
    The evidence is that Samcol Homes’ invoice to the Home Owners for the pool was dated 10 June 2014 and that the Home Owners paid $20,000 to Samcol Homes on 8 August 2014,[15]which was quite some time after they took possession of the house.
  7. [19]
    The state of the evidence in many respects is not clear because of the numerous inconsistent versions of events put forward by the parties and the few contemporaneous documents produced by the parties in support of their contentions.
  8. [20]
    Mr Van Der Westhuizen’s evidence is[16]

We made a deal with Samcol homes to pay $20,000 for the pool since Peter told us that the bank was not going to lent (sic) us enough to include the pool in the contract. Peter was willing to borrow us this money since we were expecting money from South Africa.

  1. [21]
    This is consistent with Samcol Homes’ Response that the Home Owners borrowed the cost of the pool from Samcol Homes and they repaid Samcol Homes.[17] 
  2. [22]
    Samcol Homes’ evidence was that it paid the pool contractor as it progressed and then invoiced the Home Owners for reimbursement, which is not entirely inconsistent with a loan, at least for the duration of the construction of the pool.[18]
  3. [23]
    The Home Owners’ final submissions contend that there was no evidence as to whether the oral arrangement satisfied the ordinary elements of a contract including whether there was consideration passing between the Home Owners and Samcol Homes. Whilst the evidence could have been more fulsome, I am satisfied that Samcol Homes and the Home Owners agreed that a pool was to be constructed on the Home Owners’ land for their benefit, the Home Owners would pay $20,000 to Samcol Homes and Samcol Homes arranged for a pool to be constructed.
  4. [24]
    Mr Van Der Westhuizen’s evidence was that he did not enter into a contract directly with the pool contractor. There was no evidence before me that the pool contractor sought payment from the Home Owners. A pool was constructed and the Home Owners paid Samcol Homes for it, quite some time after Samcol Homes requested payment. Even though the pool contractor’s invoice to Samcol Homes is not in evidence before me, I accept Mr Jacobs’ evidence that Samcol Homes incurred expense in having the pool constructed.
  5. [25]
    Under cross-examination Mr Jacobs conceded that a complete copy of the Contract was not provided to Mr Van Der Westhuizen until after these proceedings were commenced although he maintained that he provided a copy a number of times.  
  6. [26]
    Mr Van Der Westhuizen’s evidence was that:
    1. (a)
      Mr Jacobs did not give them a copy of the Contract;
    2. (b)
      he received a copy of the Contract from the bank in or about July 2014;
    3. (c)
      although the copy was difficult to read, he raised a number of issues relating to defective work and work not completed in accordance with the Contract with Mr Jacobs including that the pool was covered by the Contract.[19] 
  7. [27]
    Ms Van Der Merwe’s evidence is that Mr Jacobs did not give them a copy of the Contract.[20] 
  8. [28]
    On balance, I find that even though page 6 of the Contract at items 27 and 28 indicates that the Home Owners had received the Contract Information Statement and the General Conditions, it is more likely than not that the Home Owners’ copy of the Contract was provided by Mr Jacobs to the finance broker or bank in support of the Home Owners’ finance application.
  9. [29]
    Whilst it may not have been a complete copy of the Contract, it is apparent from the Application that Mr Van Der Westhuizen had a copy of at least part of the Contract including the specification, which stated that the pool was included in the scope of works, at the time he paid for the pool. Mr Van Der Westhuizen’s evidence is that he raised items of work not in accordance with the Contract.[21]  Those items could only be identified once he obtained a copy of the specification.
  10. [30]
    Mr Van Der Westhuizen’s oral evidence is that he paid the $20,000 after he had received a copy of the Contract from the bank. His evidence was that the first copy of the Contract received from the bank was just the schedule and not the plans and specification but that he then received another copy of the Contract from the bank.
  11. [31]
    I find on the balance of probabilities, that Mr Van Der Westhuizen did not pay the $20,000 on a mistaken belief the Contract did not include the pool as he:
    1. (a)
      had that part of the Contract, which provided that the pool was a specified inclusion prior to paying the amount for the pool;
    2. (b)
      he knew that the reference to the pool had been included by error by both parties; 
    3. (c)
      he agreed to pay the $20,000 in addition to the Contract price as always intended by the parties and to that extent essentially agreed to vary the written Contract to reflect the parties original agreement.
  1. [32]
    Samcol Homes’ Response did not specifically seek rectification of the Contract. It contended that the obligation to pay for the pool arose from a different agreement between the parties. The table of claims and responses[22] also denied the obligation to repay the money on that basis. Mr Jacobs’ statement[23] set out in some detail the circumstances leading to the reference to the pool being left in the specification in error. The issue of common mistake in the documenting of their bargain was clearly raised in the proceeding.  Reliance upon the mistake in the Contract was also clearly articulated by Samcol Homes’ solicitor upon the commencement of the hearing. I accept that Samcol Homes has established circumstances, which show it would be inequitable for the payment to be refunded and therefore it ought to be relieved of being required to make restitution.
  2. [33]
    To the extent Mr Van Der Westhuizen now seeks repayment in reliance on the strict terms of the written Contract, I find that Samcol Homes ought to be relieved of any requirement to do so as the reference to the pool was included in the Contract by the mistake of all parties.
  3. [34]
    In exercising the power to relieve Samcol Homes from payment, I have considered similar factors to that applicable where rectification of the contract is sought. Having regard to the evidence of the factual matrix prior to the written Contract being signed, including the Home Owners’ admissions,[24] I am satisfied that the parties held a common intention leading up to signing the Contract that the pool was not included in the Contract sum, by mistake the Contract did not accord with the parties’ common intention and if the reference to the pool in the specification was deleted the Contract would accord with the parties’ intention. If rectification had been specifically pleaded I would have declared the reference to the pool in the specification to be of no effect or otherwise varied the Contract to omit the reference to the pool in the specification, to avoid injustice.[25]
  4. [35]
    Mr Van Der Westhuizen’s oral evidence was that he did not spend any significant time reading the Contract prior to signing it. In this respect there is no claim that either Home Owner read the Contract and decided to enter into it because Samcol Homes had included the pool even though the previous discussion was that the contract price did not include the future pool works.
  5. [36]
    The parties described the arrangement as a loan. The invoice delivered is not entirely consistent with the arrangement being a loan.[26]  It is more likely that this was an undocumented agreement for additional or varied building works, which once paid is not subsequently recoverable or in any event the agreed price is required to be taken into account in an assessment of the Home Owner’s damages.[27]     
  6. [37]
    In all the circumstances, requiring Samcol Homes to refund the sum paid for the pool would result in an injustice.

Alternatively, was a binding settlement agreement entered into?

  1. [38]
    I am not satisfied that the parties entered into a binding settlement agreement.
  2. [39]
    Samcol Homes contends that Mr Van Der Westhuizen’s Application sets out a settlement agreement made between Mr Van Der Westhuizen and Samcol Homes. The Application states

I made a arrangement with Mr Jacobs that I will pay him the $20000-00 for the pool and the rest if the built (sic) problems is sorted out. He agreed and I paid him......I send him a mail with all the defects and most of it got sorted.

  1. [40]
    Samcol Homes did not deny this agreement in its Response. There is little evidence before me about the terms of the settlement agreement. Samcol Homes contends that the $20,000 was not paid under a mistaken belief that the pool was not included in the Contract scope of works but as one of the terms of the settlement agreement of a dispute. Mr Van Der Westhuizen’s evidence is consistent with the amount being paid through a course of compromise.
  2. [41]
    Samcol Homes contends the settlement agreement supersedes any rights under the Contract in respect of the pool and any claimed defects and that Mr Van Der Westhuizen and Ms Van Der Merwe have no entitlement under the Contract to a refund of money voluntarily paid pursuant to the terms of a settlement. Its final written submissions contends that the Home Owners have not specifically pleaded a breach of the settlement agreement and ought to be precluded from making the claims in this proceeding.
  3. [42]
    A copy of the list of defects identified at the time and presumably forming part of any such settlement agreement does not appear to be in evidence before me.   Samcol Homes is relying upon such a settlement agreement as a defence to the claims made against it.
  4. [43]
    Whilst the Response does not deny the settlement agreement referred to in the Application, it does not clearly set out that the settlement agreement precludes the claims either in respect of the claim for the pool refund or the claimed defects. The settlement agreement is also not referred to as a reason for rejecting Mr Van Der Westhuizen’s claims as set out in the directed table of claims and responses.[28]  There is little, if any, evidence before me upon which I can rely to find that the arrangement referred to by Mr Van Der Westhuizen was a binding compromise and the extent of items included in that compromise.
  5. [44]
    There is insufficient evidence before me upon which I could rely to find that any such settlement agreement precludes Mr Van Der Westhuizen’s claim for breach of Contract in respect of the items claimed.       

Is Mr Van Der Westhuizen entitled to damages for defective and incomplete works - $27,883.95?

  1. [45]
    I find that Samcol Homes is to pay $11,936.81 (incl GST) calculated as follows for the reasons set out below:
    1. (a)
      Water tank$   400.00 
    2. (b)
      Retaining wall$3,605.89
    3. (c)
      Letterbox$   500.00  
    4. (d)
      Bobcat$1,478.40
    5. (e)
      Aggregate driveway and paths$4,650.52 
    6. (f)
      Laundry trough$   200.00
    7. (g)
      Privacy locks$     22.00
    8. (h)
      Tiles over laundry trough$   330.00
    9. (i)
      Porch$   750.00
  2. [46]
    Mr Van Der Westhuizen claims damages for defective work or incomplete work in that the works performed did not comply with the Contract. In most respects, other than in respect of the letterbox, there is no specific evidence that suggests  that the Home Owners intend to alter the work performed or complete the claimed incomplete work.
  3. [47]
    I specifically requested that both parties’ final submissions address issues in relation to prime cost (PC) and provisional sum (PS) items. Somewhat surprisingly, the Home Owners’ final submissions contend that there are only allowances in Appendix Part B in respect of the driveway and the pathways and notes that Samcol Homes has not pleaded a case in respect of PS allowances nor led any evidence to their relevance.
  4. [48]
    As I understand it, Mr Van Der Westhuizen claims that he is entitled to amounts for adjustments of a number of PC and PS items. The submissions do not specifically address these claims. The Contract Information Statement[29] provides by way of example that where there is an increase in the area of tiles laid the adjustment of the cost of supply is through a PC adjustment but the additional area claimed would be a variation to the contract. It provides a number of examples of adjustments to PS items, which are not variations but adjustments to the contract price.
  5. [49]
    Samcol Homes contends that no claim in respect of PC or PS items can be made by Mr Van Der Westhuizen due to the settlement agreement, upon which it relies and did not set out any other specific argument.
  6. [50]
    Samcol Homes warranted that it would carry out the works under the Contract in accordance with the Plans and Specifications.[30]  Mr Van Der Westhuizen contends that a number of items were not constructed in accordance with the Plans and Specifications.  
  7. [51]
    The Contract provided that Samcol Homes was to rectify defects and omissions, which became apparent and are notified during the defects liability period.[31] 
  8. [52]
    The usual measure of damages for work not performed in accordance with a building contract is the amount, which will put the Home Owners in the same position as if the works had been completed in accordance with the Contract provided the rectification is both reasonable and necessary.[32]  Where the rectification is not both reasonable and necessary damages may be awarded on the basis of a diminution in value.
  9. [53]
    Mr Carpenter’s reports, relied upon by Mr Van Der Westhuizen, for the most part sets out the difference in the reasonable cost of the work the Contract called to be performed compared to the reasonable cost of the work actually performed. Samcol Homes lead little evidence of the actual costs incurred.
  10. [54]
    There is no evidence before me of the cost of rectification i.e. removing what has been built and building what was specified or modifying what has been built so that it accords with what was specified. There is no evidence before me as to any diminution in valuation of the house as a consequence of the work performed. 
  11. [55]
    I accept that evidence as to the savings, which Samcol Homes would have achieved by not building in accordance with terms of the Contract, is some measure of the Home Owner’s loss suffered as it is akin to an adjustment to the Contract sum by way of negative variation.[33]
  12. [56]
    Samcol Homes contends that:
    1. (a)
      it completed the Contract and that by signing the completion certificate the Home Owners have waived their rights. Samcol Homes’ final written submissions do not expand upon this contention. The Home Owners contend that the completion certificate was signed under duress by Ms Van Der Merwe, while Mr Van Der Westhuizen was away overseas.
    2. (b)
      these issues were resolved by way of a settlement agreement, to which Mr Van Der Westhuizen referred in his Application.

Did the Home Owners waive their rights by signing the completion certificate?

  1. [57]
    I am not satisfied that Mr Van Der Westhuizen’s claims are precluded by the signing of the completion certificate dated 10 June 2014 agreeing that Practical Completion was achieved on 6 June 2014.
  2. [58]
    Practical Completion Stage relevantly means

that stage of the Works when the Works are completed in accordance with the Contract and all relevant statutory requirements, apart from minor omissions or minor defects, and the Works are reasonable suitable for habitation.[34]

  1. [59]
    Upon practical completion the parties are to agree a list of minor defects or omissions and where items are raised by the home owners, which the builder does not accept, a further list is to be provided.[35]  There is no evidence before me about any such lists. I accept the evidence that Mr Van Der Westhuizen was primarily responsible for dealing with Samcol Homes except when he was away in South Africa. Ms Van Der Merwe’s evidence was that if her husband asked her to sign a document she did so.   
  2. [60]
    Mr Van Der Westhuizen’s evidence is that he told Ms Van Der Merwe to sign the completion certificate. I accept Mr Van Der Westhuizen’s evidence that he did not have a complete copy of the Contract at the time. Although they made an election to sign the completion certificate and therefore agreed that the Practical Completion Stage had been reached they would not have been in a position to assess whether the works performed were in accordance with the Contract and Samcol Homes, who had not provided a complete copy of the Contract to them, would have been aware they were at such a disadvantage.
  3. [61]
    Mr Carpenter is an experienced builder and visited the property twice. I accept that Mr Carpenter has experience in assessing the quality of building work and the reasonable costs of building work. Mr Ray, an experienced quantity surveyor, gave evidence on behalf of Samcol Homes. His evidence was primarily in regard to Samcol Homes’ counter-application and gave limited evidence about the quantification of Mr Van Der Westhuizen’s claim for damages. I accept that he is experienced in quantification of the costs of building work.

Water Tank & Pump 

  1. [62]
    I find that Samcol Homes is to pay the sum of $400 (incl GST).
  2. [63]
    Mr Van Der Westhuizen claims that the 5000 litre water tank and pump as set out in specifications[36] was not installed and that a 3000 litre water tank and inferior pump was installed.
  3. [64]
    Mr Carpenter gave evidence that the difference in the retail price of the tanks was $400[37] and that the pumps were comparable in price and manufacturer’s warranty. There is no evidence before me as to how much Samcol Homes paid for the tank. In the absence of other evidence, I accept Mr Carpenter’s evidence as to the saving which Samcol Homes is likely to have made. The submissions do not articulate the basis of the claim for builder’s margin. I am not satisfied that any amount for builder’s margin should be applied to such a saving.     
  4. [65]
    There was evidence before me that Samcol Homes had previously conceded this minor item and offered to resolve this matter by paying $500, but it was not accepted.

Retaining wall 

  1. [66]
    I find that Samcol Homes is to pay $3,605.89 (incl GST).
  2. [67]
    Mr Van Der Westhuizen claims that an inferior retaining wall was installed and was 10m shorter than specified. The specification describes the wall as[38]

Block Retaining Walls - incl Footings, (as per Engineers drawings) Core filled, Waterproofed & Rendered 44 m2 PS.

  1. [68]
    Appendix Part B of the Contract sets out PS allowances. The retaining wall is not listed as a PS. The use of ‘PS’ in the specificiation is, on balance, a reference to an additional PS. For the reasons set out earlier, the specification is regarded as special conditions and takes precedence.
  2. [69]
    Whilst the Contract is a fixed price contract, the price is subject to adjustments if the actual costs of PC or PS items are either less than the allowance[39] or more than the allowance.[40]  Item 6 of the Contract schedule provides that a contractor’s margin of 20% is to be applied to prime cost items or provisional sum items if adjustments result in an increase to the Contract price. Where there is to be a negative adjustment of a PC or PS item there is no adjustment to the builder’s margin. To the extent that the claimed item is for adjustment of PC or PS items, clause 9.4 provides that where the actual cost is less than the amount allowed the difference is deducted from the Contract Price. No deduction for builder’s margin is to be made.[41]
  3. [70]
    Samcol Homes contends that Mr Van Der Westhuizen agreed to the installation of the concrete sleeper wall and chose the particular type of sleeper. Mr Van Der Westhuizen’s evidence was that he agreed to the installation of the concrete sleeper wall because he was told that it would be cheaper and that the saving would be deducted from amounts to be paid to Samcol Homes. Mr Jacobs denies any such set off was agreed. There is no evidence before me that this change to the scope of works was documented.
  4. [71]
    Mr Carpenter gave evidence that there was no longevity issue with the wall as constructed compared with the specified design. There was evidence before me in the form of an invoice by Samcol Homes’ subcontractor that the wall as constructed was 36.5m. I accept this evidence of the size of the wall as constructed.
  5. [72]
    Mr Ray provided a very detailed calculation of the difference in construction cost. He estimated that the saving in cost of the as constructed wall would be $ 3,278.08 (excl GST).[42]
  6. [73]
    Mr Carpenter’s evidence is that the cost saving would be in the order of $306.47/m. On my calculation, this would equate to $2,298.53 (excl GST) or $2,528.38 (incl GST). I accept Mr Ray’s detailed calculation. For the reasons set out earlier, no amount for builder’s margin should be applied to such a PS adjustment.   

Letterbox

  1. [74]
    I find that Samcol Homes is to pay the sum of $500 (incl GST).
  2. [75]
    Mr Van Der Westhuizen claims that a letterbox was not constructed as set out in the specifications.[43]  The evidence is that he attended to constructing it.
  3. [76]
    The specification does not describe the letterbox other than ‘to Builders Standard’. Samcol Homes contends that the Home Owners failed to provide instructions on their preferred design and therefore, it was not built. There was evidence before me that Samcol Homes had previously offered to resolve this matter by paying $500 and that this was a minor conceded item. Mr Van Der Westhuizen’s evidence was that he did not accept this offer as it was not a standalone offer but part of a settlement offer which included other items, with which he did not agree.        
  4. [77]
    Mr Carpenter’s evidence is that the reasonable costs of constructing the letterbox, which has been installed by the Home Owners, which he described as relatively elaborate, is $552.52 (excl GST).  I am not satisfied that the as constructed letterbox is ‘to Builder’s standard’ and therefore do not accept that the entire amount represents the savings to Samcol Homes. In the absence of other evidence, I accept the amount offered by Samcol Homes for this item as the saving to Samcol Homes for not completing this work.

V-drain 

  1. [78]
    I am not satisfied that Mr Van Der Westhuizen has established his loss in any particular amount.
  2. [79]
    Mr Van Der Westhuizen claims that the V drain described in the specification on page 11 was not constructed.
  3. [80]
    Samcol Homes concedes that this drain was not constructed as a consequence of hitting rock on the site. It contends that the amount saved by not constructing the specified drain was applied to excavation work to batter and shape the block and that other drainage was installed so a V-drain was not required.
  4. [81]
    Samcol Homes contends that a rock seam was encountered during excavation. Mr Jacobs gave evidence that in the presence of the plumber and excavator, he consulted with Mr Van Der Westhuizen, who agreed to vary the works to lift the level of the house to avoid the extra costs to the Home Owners of breaking through the rock seam.[44]  Mr Van Der Westhuizen gave evidence that he was not consulted at that time. Mr Jacobs provided written corroborating evidence by Mr Booth, the plumber and Mr Walker, the excavator.[45]  Neither Mr Booth or Mr Walker gave oral evidence during the hearing, which does reduce the weight of their evidence, however on balance, I am inclined to prefer Mr Jacobs’ evidence, which was corroborated, that Mr Van Der Westhuizen was consulted and agreed to change the levels and that alternate works were performed.    
  5. [82]
    There is no evidence that Samcol Homes notified the Home Owners of such a latent condition as provided by clause 14.1 of the Contract nor any evidence that Samcol Homes reduced such a variation to writing. Mr Jacobs did not give any specific evidence about how he determined that the savings from not constructing the specified drain were offset by other costs of this undocumented variation.      
  6. [83]
    Mr Carpenter’s evidence was that the reasonable costs of constructing the V drain are $2,882.70 (excl GST). Mr Ray, Samcol Homes’ expert, did not provide an opinion on this item.   Mr Carpenter did not give evidence about the difference in the cost of the work performed as compared to the work not performed. I am not satisfied that Mr Van Der Westhuizen has established an entitlement to any particular amount in respect of this item.

Cut Site House Pad 

  1. [84]
    I am not satisfied that Mr Van Der Westhuizen has established any particular entitlement.
  2. [85]
    Mr Van Der Westhuizen claims that this work, described as Cut Site, House Pad approximately 320m3 @ 12/m3 in the specification on page 11, was not completed.
  3. [86]
    Samcol Homes contends that the cut of the site was completed to the extent required by the level as agreed with Mr Van Der Westhuizen after the rock seam was encountered as referred to earlier in these reasons. Samcol Homes also contends that this work was not a PS item subject to an adjustment. Unlike other items in the specification this item is not specifically identified as a ‘PS’ item. On balance, I find that this item was not a PS item subject to adjustment.
  4. [87]
    Mr Carpenter’s evidence is that the reasonable costs of performing this work are $3,395.20 (excl GST). Mr Ray did not provide an opinion on this item.   Mr Carpenter did not give evidence about the difference in the cost of the work completed as compared to the work not completed as specified. I am not satisfied that Mr Van Der Westhuizen has established an entitlement.

Cut and Box Driveway 

  1. [88]
    I am not satisfied that Mr Van Der Westhuizen has established any entitlement.
  2. [89]
    Mr Van Der Westhuizen claims that this work in the specification on page 11 was not completed. His evidence is that soil was simply compacted and an aggregate slab poured instead.
  3. [90]
    Samcol Homes contends that the cut of the driveway was completed to the extent required by the level as agreed with Mr Van Der Westhuizen after the rock seam was encountered as referred to earlier in these reasons and that as the pad was raised the driveway slope was increased. Mr Jacobs’ evidence, which is corroborated, is that during the discussion with Mr Van Der Westhuizen it was made clear that the driveway would be steeper. Samcol Homes also contends that this work was not a PS item subject to an adjustment. Unlike other items in the specification this item is not specifically identified as a ‘PS’ item. On balance, I find that this item was not a PS item subject to adjustment.
  4. [91]
    Mr Carpenter’s evidence was that the reasonable costs of performing this work are $348.84 (excl GST). Mr Ray did not provide an opinion on this item.   Mr Carpenter did not give evidence about the difference in the cost of the work completed as compared to the work not completed as specified. I am not satisfied that Mr Van Der Westhuizen has established an entitlement.

Move Fill on site and stockpile 

  1. [92]
    I am not satisfied that Mr Van Der Westhuizen has established any entitlement.
  2. [93]
    Mr Van Der Westhuizen claims that this work in the specification, described as “move fill onsite and stockpile 120 m3 incl load trucks, truck hire x 1 truck x 1 day @ 10 hrs/day” on page 11 was not completed. His evidence is that no soil was moved by truck or stockpiled. There was little evidence before me about this item, in particular about the basis of his contention.
  3. [94]
    Samcol Homes contends that the work was completed as part of the fixed price contract and no amount is owing. It contends that this work was not a PS item subject to an adjustment. Unlike other items in the specification this item is not specifically identified as a ‘PS’ item. On balance, I find that this item was not a PS item subject to adjustment.
  4. [95]
    Mr Carpenter’s evidence was that a truck is not required for a suburban block and the reasonable costs of performing this work with an appropriate machine are $2232 (excl GST). Mr Ray did not provide an opinion on this item.   Mr Carpenter did not give evidence about the difference in the cost of the work completed as compared to the work not completed as specified. I am not satisfied that Mr Van Der Westhuizen has established an entitlement.

Bobcat hours  

  1. [96]
    I find that an amount of $1,344 (excl GST) or $1,478.40 (incl GST) is owing to Mr Van Der Westhuizen in respect of this item.
  2. [97]
    Mr Van Der Westhuizen claims that this work, described as ‘PS – 24 bobcat hours’, in the specification on page 11 was not completed. His evidence is that the bobcat only worked for 10 hours.
  3. [98]
    Samcol Homes contends that the work was part of the fixed price contract and no amount is owing. It does not specifically dispute that the bobcat only worked for 10 hours. Whilst bobcat costs are not included as a PS item in Appendix B of the Contract, the use of ‘PS’ is, on balance, a reference to an additional PS. For the reasons set out earlier, the specification is regarded as special conditions and takes precedence.
  4. [99]
    Mr Carpenter’s evidence was that the reasonable costs of a bobcat per hour was $96 and that an adjustment of $1,344 (excl GST) should be made. Mr Ray did not provide an opinion on this item. I accept Mr Carpenter’s evidence.    For the reasons set out earlier, no amount for builder’s margin should be applied to such a PS adjustment.  

Aggregate driveway and paths 

  1. [100]
    I find that Samcol Homes is to pay the amount of $4,650.52 (incl GST) in respect of this item.
  2. [101]
    Mr Van Der Westhuizen claims that he was overcharged for these items.
  3. [102]
    Samcol Homes contends that this work formed part of the fixed price contract and that nothing is owing.
  4. [103]
    Appendix Part B sets out a PS for exposed aggregate driveway as $11,200 for 67m2, which equates to $167/m2 and exposed aggregate pathways as $3,677 for 23m2, which equates to $159.87/m2, being a total of $14,877 (incl GST). Whilst the Contract is a fixed price contract the price is subject to adjustments if the actual costs of prime cost or provisional sum items are either less than the allowance[46] or more than the allowance.[47] 
  5. [104]
    Mr Van Der Westhuizen’s evidence is that Samcol Homes did not provide evidence of its actual costs at the time it claimed for this work contrary to clause 9.7. Evidence of Samcol Homes actual costs are not before me.
  6. [105]
    The experts accepted that the total area of aggregate driveways and paths constructed is approximately 90m2.
  7. [106]
    Mr Carpenter’s evidence is that the reasonable cost of such work is $83.32 per m2 plus $1,798.[48]  On my calculation, this equates to $9,296.80 or 10,226.48 (incl GST) and results in a deduction to the Contract sum of $4,650.52.[49] For the reasons set out earlier, no amount for builder’s margin should be applied to such a PS adjustment.  

Laundry Trough 

  1. [107]
    I find that $200 (incl GST) is payable by Samcol Homes in respect of this item.
  2. [108]
    Mr Van Der Westhuizen claims that the specified item as described on page 5 of the specification is an Abey 45 litre stainless steel dropped into cabinetry.
  3. [109]
    The photographs confirm that the configuration of the laundry sink is not as specified. The cabinetry and top is shorter and an upright laundry tub is installed at the end the cabinetry. Page 7 of the specification provides that the laundry top is to be laminate but a stone top has been installed.    The experts agreed that as installed it was a cheaper installation than as specified as there was less cabinetry, which would be partially offset by the better bench top. The experts agreed that the likely cost saving to Samcol Homes is $200.[50]  I accept the experts’ evidence. I am not satisfied that any amount for builder’s margin should be applied to such a saving.   

Privacy locks in 4 doors 

  1. [110]
    I find Samcol Homes is to pay $22 (incl GST) in respect of this item.
  2. [111]
    Mr Van Der Westhuizen claims that the wrong product has been installed.
  3. [112]
    Samcol Homes contends that the correct product was installed.
  4. [113]
    Mr Carpenter’s evidence is that page 6 of the specification refers to Daintree B series internal door furniture and matching privacy round/square roses but that he was unable to locate specifications for the installation of privacy locks, which unless specified differently would usually only be fitted to toilet and bathroom doors. In the table to Mr Carpenter’s report, he sets out that the difference in the costs of privacy locks and the handles installed are $5 each. In the absence of any contrary evidence, I accept this assessment and Mr Van Der Westhuizen’s evidence that there were four doors. I am not satisfied that any amount for builder’s margin should be applied to such a saving.   

Range hood 

  1. [114]
    I am not satisfied any amount is owing in respect of this item.
  2. [115]
    Mr Van Der Westhuizen claims that the wrong product has been installed.
  3. [116]
    Samcol Homes contends that it has a discretion as the specification provides appliances are ‘builder’s range’.
  4. [117]
    Mr Carpenter’s evidence is that page 8 of the specification provides for the installation of a builder’s range 60cm stainless steel range hood and that he was unable to find a specific reference to a type or manufacturer.
  5. [118]
    There is insufficient evidence to establish a breach or any loss.   

Laundry Tiles over Trough 

  1. [119]
    I find that $330 (incl GST) is payable by Samcol Homes in respect of this item.
  2. [120]
    Mr Van Der Westhuizen claims that the specification at page 9 provided for two rows of tiles but only one row of tiles was installed.
  3. [121]
    Samcol Homes contends that a larger tile was used, which was equivalent in height to two rows.
  4. [122]
    Mr Carpenter’s evidence is that a single 300 mm high tile is installed and that the reasonable cost of installing a second row of tiles is $300 (excl GST). Mr Carpenter’s oral evidence is essentially that a 300mm tile is a common size.
  5. [123]
    The specification at page 9 provides the Home Owners could select tiles from the builder’s preferred supplier up to $30m2. There is no specific restriction on the size of tile or extent of tiling unlike in respect of the kitchen splashback.  
  6. [124]
    On balance, I find that a second row of the tiles selected ought to have been installed in compliance with the specification and accept Mr Carpenter’s evidence. I am not satisfied that any amount for builder’s margin should be applied to such a saving.

Tile Frieze 

  1. [125]
    I am not satisfied that any amount is payable by Samcol Homes in respect of this item.
  2. [126]
    Mr Van Der Westhuizen claims that the specification at page 9 provided an allowance for ‘16lm @ $12 per lineal meter’ but only 4m of half size tiles were installed.
  3. [127]
    Samcol Homes contends the tiles were supplied as per the terms of the Contract. Mr Jacobs’ evidence is that 23.49 lm of frieze tiles at $23.49 per lineal meter were supplied and installed.[51]
  4. [128]
    Samcol Homes claimed that the tiles chosen by the Home Owners were more expensive than the allowance such that the cost was $305.59 compared to the allowance of $192.[52]  There is a reference to invoices in Exhibit 8 but they are not in evidence before me.
  5. [129]
    There is conflicting evidence in respect of the area installed. Under cross-examination, Mr Van Der Westhuizen stated that he would prefer Mr Carpenter to give evidence about how many lineal meters of tiles were supplied and installed. Mr Ray’s report[53] states that 16lm were installed at $23.49 per lm. Mr Carpenter’s supplementary report[54] states that he performed an onsite check measure, which indicated approximately 10lm had been installed. Subsequently a conclave was convened and a joint expert report was prepared, in which the experts both agreed that the reasonable costs of the frieze tiles was more than the allowance.[55]    The joint report supersedes Mr Carpenter’s earlier evidence. I accept the experts’ evidence contained in the joint report.

Porch 

  1. [130]
    I find that $750 (incl GST) is payable by Samcol Homes in respect of this item.
  2. [131]
    Mr Van Der Westhuizen claims that the porch was not erected in accordance with the developer’s covenants.
  3. [132]
    Samcol Homes accepts that the house was not constructed in strict compliance with the developer’s covenants as approximately 1m2 of roof was not constructed and has previously offered $750 to compensate the Home Owners, which was rejected.
  4. [133]
    Mr Carpenter’s evidence is that he was not provided with documents, which would allow him to provide an opinion.
  5. [134]
    There is insufficient evidence to establish loss in an amount different to that offered by Samcol Homes. I am not satisfied that any amount for builder’s margin should be applied to such a saving.   

Gully pits 

  1. [135]
    I am not satisfied that any amount is owing by Samcol Homes in respect of this item.
  2. [136]
    Mr Van Der Westhuizen claims that additional gully pits were not installed as described in the specification on page 11.
  3. [137]
    Samcol Homes contends that there are two storm water drains including two additional gully drains, which were installed.
  4. [138]
    Mr Carpenter’s evidence is that the specification on page 11 provides for ‘stormwater drainage pits as required’ and that the Home Owners informed him that they had installed two additional drainage pits since the works were handed over. He provides evidence of the reasonable costs of installing the additional pits in the sum of $256.38 (excl GST) but does not give evidence about whether they were both reasonably required.
  5. [139]
    I am not satisfied that Mr Van Der Westhuizen has established a breach of the Contract.

Waste disposal unit 

  1. [140]
    I find no amount is owing by Samcol Homes in respect of this item.
  2. [141]
    Mr Van Der Westhuizen claims a waste disposal unit was not installed and no deduction to the contract price was made.
  3. [142]
    The signed specification was dated 28 August 2013[56] and on page one the contract price was noted as $399,000 (incl GST). On page five, the reference to the waste disposal unit was struck through and initialled. I accept Mr Jacob’s evidence that this deletion caused the contract price to be adjusted by $300 to arrive at the final contract price of $398,700 (incl GST).
  4. [143]
    Mr Carpenter’s evidence is that the reasonable costs of installing a waste disposal unit would be $461.05, including a retail price of $250 for the unit. I find that no further adjustment is required.

PS & PC items 

  1. [144]
    I find that no amount is payable by Samcol Homes in respect of light fittings and carpets.
  2. [145]
    Mr Van Der Westhuizen claims that an adjustment to the contract price may be required for light fittings, carpets, block retaining walls, driveway, pathway, bobcat hours, tile laying and tile supply. Mr Van Der Westhuizen’s evidence is that Samcol Homes did not provide evidence of its actual costs at the time it claimed for this work contrary to clause 9.7. Little evidence of Samcol Homes’ actual costs are before me.
  3. [146]
    Samcol Homes contends that this work formed part of the fixed price contract and that cost is irrelevant.
  4. [147]
    As referred to earlier, whilst the Contract is a fixed price contract the price is subject to adjustments if the actual costs of PC or PS items are either less than or more than the allowance.
  5. [148]
    Block retaining walls, driveway, pathway, bobcat hours, tile laying and tile supply items have been claimed as separate items and are dealt with earlier in these reasons.

Light Fittings

  1. [149]
    I am not satisfied any amount is payable by Samcol Homes in respect of this item.
  2. [150]
    Page 4 of the specification sets out ‘47 x light fitting supply allowance pc $1,900’. On balance, I accept that the parties intended this to be treated as a PC item despite it not being included in Appendix A. For the reasons set out earlier in these reasons, the specification is to be regarded as special conditions, which takes precedence.
  3. [151]
    Mr Carpenter’s Supplementary report[57] provides evidence of the reasonable costs of the labour for installing lights supplied but does not provide any alternative costing for the light fitting supply. The Joint Experts’ report accepts the PC item cost of $42.42 per item.[58] 
  4. [152]
    On my calculation, the reasonable costs exceed the PC allowance. There is insufficient evidence upon which I can rely to find that an adjustment in Mr Van Der Westhuizen’s favour is required.

Carpet

  1. [153]
    I find that no amount is payable by Samcol Homes in respect of this item.
  2. [154]
    Appendix Part B sets out a PS for carpet purchase as $155 Lm. Page 9 of the specification similarly notes PC allowance supply/install $155 lm for carpet.
  3. [155]
    Mr Carpenter’s evidence is that the carpet allowance is at the lower end of the carpet quality range and that the carpet fitted is better quality than one might expect for the price allowed in the specification.
  4. [156]
    There is no evidence upon which I can rely to find that an adjustment in Mr Van Der Westhuizen’s favour is required.

Pool fencing to council standards

  1. [157]
    I find that no amount is payable by Samcol Homes in respect of this item.
  2. [158]
    Mr Van Der Westhuizen claims that the pool fence was not constructed to council standards.
  3. [159]
    Samcol Homes contends that the pool fence complied as a safety certificate was obtained dated 28 July 2014.
  4. [160]
    Mr Carpenter’s evidence is that he is not aware of non-compliance issues and could not provide evidence of cost to remedy. There is insufficient evidence upon which I can rely to find a breach of Contract or any loss.

Double invoicing of council fees 

  1. [161]
    I find that local authority fees formed part of the contract price.
  2. [162]
    Mr Van Der Westhuizen claims that Samcol Homes have claimed for these fees twice. Samcol Homes disputes this. 
  3. [163]
    A Samcol Homes invoice no 132714 dated 10 December 2013 is in evidence before me claiming for council fees.[59]  A further invoice also no 132714 dated 10 December 2013, removed the charge for council fees, is also in evidence before me.[60]
  4. [164]
    Page 2 of the specification provides that allowance has been made for local authority fees.  Mr Van Der Westhuizen refused to pay the invoiced amount for council fees. Samcol Homes has not made a claim for council fees in this proceeding.    

Is Samcol Homes entitled to recover amounts for Signed Variations - $11,196.50?

  1. [165]
    I am not satisfied any amount is recoverable from the Home Owners in respect of these variations. On this basis I am not satisfied that interest under the terms of the Contract is payable. However, in assessing the Home Owners’ damages claim the amounts in respect of agreed but non-compliant variations is to be taken into account.
  2. [166]
    Samcol Homes claims $11,196.50 is owing by the Home Owners in respect of 3 signed variations. It claims that the variations comply with the Domestic Building Contracts Act 2000 (Qld) (‘DBC Act’). The Home Owners claim that the work was commenced prior to the variations being signed and therefore the variations do not comply with the DBC Act.[61]  Alternatively, Samcol Homes contends that the amount is payable pursuant to a settlement agreement.
  3. [167]
    Mr Jacobs’ evidence is that it was his practice to not commence variation works until the variation was signed and he believes these works were not commenced until they were signed. Samcol Homes’ claims for undocumented variations casts some doubt upon Mr Jacobs’ evidence. Mr Van Der Westhuizen’s evidence was that the works were commenced before they were presented for signature.[62]  Ms Van Der Merwe’s evidence under cross-examination was less emphatic. This is unsurprising as her husband primarily dealt with Mr Jacobs.
  4. [168]
    Mr Jacobs did not produce any contemporaneous documents such as diary entries to support his contention.
  5. [169]
    Variation document 2 in respect of a timber retaining wall – southern boundary was signed by Samcol Homes on 21 January 2014. Ms Van Der Merwe signed the variation but no date has been inserted. The invoice for this variation for $3,630 was also dated 21 January 2014.[63] 
  6. [170]
    Variation document 3 in respect of retaining walls and boundary fences was signed by Samcol Homes on 10 April 2014 but was signed by the Home Owners on 23 April 2014. The invoice for this variation for $4,581.50 was dated 11 April 2014.[64] 
  7. [171]
    Variation document 4 in respect of exposed aggregate concrete around the pool was signed by Samcol Homes on 9 May 2014 but the date it was signed by the Home Owners is unclear. The invoice for this variation for $2,985 was also dated 9 May 2014.[65]   
  8. [172]
    Mr Van Der Westhuizen contended that he agreed to the variations on the basis of Mr Jacobs’ representation that the variation costs would be set off against the savings to be made from the change to the block retaining wall. The claim in respect of the change to the block retaining wall has been dealt with earlier in these reasons.
  9. [173]
    I am not satisfied that the written variations were agreed to by the Home Owners prior to commencement of the works. To the extent that the variations were only signed by Ms Van Der Merwe I accept her evidence that she signed documents when requested by Mr Van Der Westhuizen. In this regard I do not accept the contention that she did not act as his agent.  
  10. [174]
    The Appeal Tribunal in Greer’s case[66] found that:
    1. (a)
      the contractor ‘had no right to recover amounts for the unpaid non-compliant variations in the absence of the tribunal’s approval.’[67] 
    2. (b)
      ‘there is a distinction to be drawn between the right of a building contractor to recover an amount for a non-compliant variation and the amount payable under the contract as varied’.[68]  The latter is relevant to the assessment of the owner’s loss as ‘Part 7 of the DBC Act does not prohibit parties from freely entering into agreements for variation works that may not comply with the stated provisions.’[69]  Non-compliance does not make any variation agreements illegal nor the performance of the variation work illegal unlike the provisions in section 42 of the Queensland Building and Construction Commission Act 1991 (Qld). The DBC Act contemplates that non-compliant variations may found an entitlement to extend time.[70]
    3. (c)
      a contractor who received payment for non-compliant variation work is not required to disgorge the amount to the owner by operation of s 84(2) of the DBC Act.[71]
  11. [175]
    The Appeal Tribunal in Greer’s case further observed:[72]

A party suing for damages for breach of a contract may only recover for the net loss sustained, that is, the value of the benefit of the contract fully performed less the contract price for securing such performance.

In Commonwealth v Amann Aviation Pty Ltd the High Court held that the corollary of the rule in Robinson v Harman is that a plaintiff is not entitled, by the award of damages upon breach, to be placed in a superior position to that which he or she would have been in had the contract been performed.

  1. [176]
    In light of the Appeal Tribunal’s findings, the amount of $11,196.50 is to be set off against the Home Owner’s claim for damages.
  2. [177]
    Samcol Homes’ final submissions contend that Mr Van Der Westhuizen agreed to pay these amounts as part of the consideration of the settlement agreement. There was little evidence as to the terms of the settlement agreement. I am not satisfied that the reference to ‘the rest’ is sufficiently clear for me to be satisfied that Mr Van Der Westhuizen agreed to pay these amounts together with interest under the Contract at the rate of 15% per annum as part of such a settlement agreement.

Is Samcol Homes entitled to recover for Plans - $2,970 (incl GST)?

  1. [178]
    I am not satisfied that Samcol Homes has established any entitlement to be paid for the plans.
  2. [179]
    Samcol Homes points to item 5(a) of the Contract that the Home Owners were to supply the plans. Its evidence is, and I accept, that as the Home Owners were short of funds, it agreed to and did pay for the plans to ensure the progress of the works and it invoiced the Home Owners for these costs.
  3. [180]
    Item 5(a) of the Contract does not expressly provide a right of recovery if the contractor supplies and pays for the plans when the Home Owners were to supply them. Such a change would constitute a variation to the Contract. There is no evidence before me that the variation complied with the terms of the Contract. There is insufficient evidence before me to be satisfied that Samcol Homes complied with the provisions of the DBC Act in respect of this claim.   There is no variation document signed by the Home Owners agreeing to such a variation.
  4. [181]
    Alternatively, in its final submissions it contends that this amount is owed pursuant to a settlement agreement referred to in the Application.[73]
  5. [182]
    As stated earlier in these reasons, the reference to ‘the rest’ is not sufficiently clear for me to be satisfied that Mr Van Der Westhuizen agreed to pay this amount as part of such a settlement agreement.

Is Samcol Homes entitled to make a Quantum Meruit Claim?

  1. [183]
    I find that no amount is due to Samcol Homes in respect of its quantum meruit claim. In the absence of the Tribunal’s approval of a claim under section 84 of the DBC Act, Samcol Homes is not entitled to recover for unpaid noncompliant variations.
  2. [184]
    Samcol Homes claims it performed work at the request of the Home Owners to their benefit.[74]  It acknowledges that such works were not the subject of written variations as required under the Contract and under the DBC Act.
  3. [185]
    At the commencement of the hearing, Samcol Homes unsuccessfully applied for leave to amend its Counter Application to include a claim under section 84 of the DBC Act.  Samcol Homes contends that a claim in quantum meruit is available to it and relies upon comments made in the Court of Appeal decision CMF Projects Pty Ltd v Riggall & Anor.[75]  In that case, the Court of Appeal was concerned with the operation of section 55 of the DBC Act in relation to cost plus contracts.
  4. [186]
    The Court of Appeal found that the language of section 55 did not indicate in a very clear way an intention to take away the right of the contractor to recover by way of a quantum meruit claim.[76]  Samcol Homes contends that the terms of section 84 are sufficiently similar to those in section 55 so that I ought to be satisfied that section 84 similarly does not exclude a claim by way of quantum meruit. 
  5. [187]
    I do not accept this submission. His Honour Gotterson JA in CMF Projects distinguished the wording of section 55 and section 84 of the DBC Act by finding:

The DBCA was enacted after the decision in Pavey, Marshall and Sutton were published. The formulations of ss 55 and 84 were informed by those decisions. The choice of different formulations with known different consequences is apt to suggest that the respective provisions were intended to operate with different effect.[77]

  1. [188]
    Further His Honour Gotterson JA clearly accepted that

Under s 84(2)(b), the building contractor may recover an amount only with the approval of QCAT, and not by a quantum meruit claim in a court.[78]

  1. [189]
    I find the preferable construction of section 84 of the DBC Act is that it excludes recovery by a contractor of amounts by way of quantum meruit. The legislative intention is clearly to exclude such a claim. Section 84(2) and 84(3) of the DBC Act set out the circumstances under which a contractor may recover amounts. Importantly both section 84(2)(a) and (b) and section 84(3)(a) and (b) commence with the word ‘only’.
  2. [190]
    In these circumstances, I make no findings in respect of the quantification of the claims.

Interest 

  1. [191]
    I find that Samcol Homes is to pay Mr Van Der Westhuizen interest in the amount of $368.60 accrued to 27 June 2019.
  2. [192]
    Mr Van Der Westhuizen claims that interest is payable on damages as assessed. The net damages assessed are $740.31.
  3. [193]
    For the purposes of awarding interest on damages,[79] interest is payable on and from the day after the day that the amount became payable until and including the day the amount is paid, relevantly, at the rate of 10% per annum as the Contract did not provide for a rate of interest on amounts owing to the Home Owners.[80]    
  4. [194]
    The evidence is that the Home Owners took possession of the house on or about 10 June 2014 having paid the contract sum. Many of the items of damage relate to works not having been completed in accordance with the Contract. In these circumstances, I find that the Home Owners entitlement to damages accrued as at possession. On my calculation interest has accrued at the rate of $0.20 per day from 11 June 2014 to 27 June 2019, a period of 1843 days.

Summary

  1. [195]
    Samcol Homes is to pay Mr Van Der Westhuizen $1,108.91.[81]

Costs

  1. [196]
    Although some submissions as to costs have been made by the parties I have provided directions to facilitate any application for costs to be made once the parties have read these reasons. Each party has had some success in claims made and defended.

Footnotes

[1]  The first dated 5 September 2013 and the second dated 6 September 2013.

[2]  Filed 29 October 2015, Exhibit 1.

[3]  Filed 19 November 2015, Exhibit 9.

[4]  Filed 30 June 2016, Exhibit 7.

[5]  Exhibit 8.

[6]David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) (2009) ALR 661.

[7]  Clause 3.2.

[8]  Clause 3.3.

[9]  Appendix Part J – Special Conditions.

[10]Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 77(3)(a).

[11]  Ibid, s 77(3)(b).

[12]  Ibid, s 77(3)(c).

[13]  Ibid, s 77(3)(d).

[14]  Ibid, s 77(3)(e).

[15]  Exhibit 2, IVW3.

[16]  Exhibit 2, IVW6, page 1 of 10.

[17]  Exhibit 9, [2].

[18]  Exhibit 10, [3(m)].

[19]  Exhibit 2, IVW6, page 1 of 10.

[20]  Exhibit 4, [10].

[21]  Exhibit 2, [17].

[22]  Exhibit 8.

[23]  Exhibit 10, in particular [6].

[24]Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337.

[25]  QBCC Act, s 77.

[26]  Exhibit 2, part of attachment IVW3.

[27]Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196.

[28]  Exhibit 8.

[29]  Exhibit 10, SH1, pages 40-41.

[30]  Clause 10.1(a)(iii).

[31]  Clause 19.1.

[32]Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272.

[33]Dyer v Spence [2017] QCAT 211.

[34]  Clause 1.

[35]  Clause 17.5.

[36]  Exhibit 3, IVW9, Document 2B, page 10.

[37]  Exhibit 5, page 9 states retail price comparisons include GST.

[38]  Exhibit 3, IVW9, Document 2B, page 11.

[39]  Clause 9.4.

[40] Clause 9.5.

[41]  Exhibit 10, SH1, page 25 of 31.

[42]  Exhibit 14.

[43]  Exhibit 3, IVW9, page 10.

[44]  Exhibit 10, [26].

[45]  Exhibit 10, SH8.

[46]  Clause 9.4.

[47] Clause 9.5.

[48]  Exhibit 5, page 15.

[49]  $14,877 less $10,226.48.

[50]  Exhibit 15, item 19.

[51]  Exhibit 10, page 12.

[52]  Exhibit 8.

[53]  Exhibit 12.

[54]  Exhibit 6.

[55]  Exhibit 15, item 21.

[56]  Forms part of Exhibit 3.

[57]  Exhibit 6.

[58]  Exhibit 15, item 12.

[59]  Document 10.

[60]  Ibid.

[61]  DBC Act, s 79.

[62]  Exhibit 3.

[63]  Exhibit 10, part of attachment SH6.

[64]  Ibid.

[65]  Ibid.

[66]  [2018] QCATA 196.

[67]  Ibid, [78].

[68]  Ibid, [79] (emphasis in original).

[69]  Ibid, [68].

[70]  DBC Act, s 18(6).

[71]  [2018] QCATA 196, [102].

[72]  Ibid, [52] - [53] (citations omitted).

[73]  Filed 29 October 2015, Exhibit 1.

[74]  The Home Owners denied that some of the work was performed at their request.

[75]  [2016] 1 Qd R 187.

[76]  Ibid.

[77]  Ibid, 200 [46].

[78]  Ibid, 198 [37].

[79]  QBCC Act s 77(3)(c).

[80]Queensland Building and Construction Commission Regulation 2003 (Qld) s 34B. Clause 11.9 and Item 19 of the schedule provides interest is payable on amounts owed by the Home Owners to Samcol Homes at the rate of 15% per annum.

[81]  Damages in the amount of $740.31 (damages awarded at $11,936.81 less signed variations $11,196.50) plus interest in the amount of $368.60.

Close

Editorial Notes

  • Published Case Name:

    Ian Van Der Westhuizen v Samcol Homes Pty Ltd and Sonia Van Der Merwe

  • Shortened Case Name:

    Van Der Westhuizen v Samcol Homes Pty Ltd

  • MNC:

    [2019] QCAT 171

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    27 Jun 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.