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Manson v Brett (No 2)[2019] QCAT 411

Manson v Brett (No 2)[2019] QCAT 411

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Manson v Brett & Anor (No. 2) [2019] QCAT 411

PARTIES:

LEE MANSON T/AS MANSON HOMES

 

(applicant)

 

v

 

STEWART BRETT

and

SARAH PURNELL

 

(respondents)

APPLICATION NO/S:

BDL117-14

MATTER TYPE:

Building matters

DELIVERED ON:

18 November 2019

HEARING DATE:

5 November 2018

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

  1. Stewart Brett and Sarah Purnell are to pay to Lee Manson t/as Manson Homes the amount of $25,254.00.
  2. Lee Manson t/as Manson Homes is to provide to Stuart Brett and Sarah Purnell all certificates of inspection in relation to the property at 16 Lynch Street Newmarket, Queensland, which are in his power or possession.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – whether a builder is entitled to payment for sums claimed under a contract or on a quantum meruit basis – whether interest can be paid on a quantum meruit claim – where assessment of a quantum meruit claim by a builder was considered

THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – whether a builder is entitled to payment for sums claimed under a contract or on a quantum meruit basis – whether interest can be paid on a quantum meruit claim – where assessment of a quantum meruit claim by a builder was considered

REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – whether a builder is entitled to payment for sums claimed under a contract or on a quantum meruit basis – whether interest can be paid on a quantum meruit claim – where assessment of a quantum meruit claim by a builder was considered

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – whether damages arose for alleged difference in value on sale of a property as a result of non-provision of inspection certificates – whether the owners are entitled to rent incurred, and for what period, whilst the property was being rectified – whether a claim for Solatium in a building dispute is within the jurisdiction of the Tribunal – where principles as to Solatium were discussed – whether an order should be made for production of inspection certificates

Domestic Building Contracts Act 2000 (Qld), s 84

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h)

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

Austman Ltd v Mount Gibson Mining Ltd [2012] WASC 202

Boncristiano v Lohmann [1998] 4 VR 82

Cavric Pty Ltd t/a Cavalier Homes Mackay v Cameron [2010] QCATA 90

Coshott v Fewings Joinery Pty Ltd (unreported, New South Wales Supreme Court, CA, 15 July 1996)

D Galambos & Son Pty Ltd v McIntyre (1974) 5 ACTR 10

Dyer v Spence [2017] QCAT 211

Kirkby & Anor v Coote & Ors [2005] QSC 197

Lyons v Queensland Building and Construction Commission & Dreamstarter Pty Ltd (in liquidation) [2016] QCAT 218

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

Partington & Anor v Urquhart (No 2) [2018] QCATA 120

Pearce, Ronald Benjamin t/as Freestyle Projects v Caswell [2009] QCCTB 192

Ruxley Electronics & Construction Co Ltd v Forsyth [1966] AC 344

Tamawood Ltd v Paans & Anor [2004] QDC 427

William George Carlsen t/as W & E Carlsen Builders v Tresidder [2015] QCAT 260

XMR Holdings Pty Ltd v Body Corporate for Xanadu [2016] QCAT 27

APPEARANCES &

REPRESENTATION:

 

Applicant:

C Matthews of Counsel, instructed by All Building Law, Solicitors

Respondents:

B Saal of Saal and Associates, Lawyers

REASONS FOR DECISION

  1. [1]
    This matter concerns a long-standing building dispute between Lee Manson t/as Manson Homes (‘the builder’) and Stewart Brett and Sarah Purnell (‘the owners’), as to the renovation of a house at 16 Lynch Street, Newmarket in Brisbane.
  2. [2]
    I conducted an initial hearing in this matter on 13 October 2015 and 10 November 2015, and subsequently gave a decision on 5 August 2016, as to a preliminary question as to whether the owners had validly terminated the building contract. I made an Order as follows:

2. The Tribunal declares that the Contract between Lee Manson trading as Manson Homes and Stewart Brett and Sarah Purnell dated 29 November 2013 was validly terminated by Stewart Brett and Sarah Purnell on 28 April 2014.

  1. [3]
    An appeal against my decision of 5 August 2016 was filed by the builder on 14 September 2016. The Appeal Tribunal made an order on 14 November 2017 dismissing the appeal.
  2. [4]
    The matter then came back for me for hearing of the substantial issues. I conducted an oral hearing on 5 November 2018. This is the further decision in this matter, and deals with the substantive issues.
  3. [5]
    Following the hearing on 5 November 2018, copies of the transcript of the hearing that day were obtained, and submissions were filed by the parties.
  4. [6]
    The submissions of the owners were prepared by Saal and Associates Lawyers, were dated and filed on 21 January 2019, and comprised 56 pages, having 283 paragraphs.
  5. [7]
    The submissions of the builder were prepared by Mr Matthews of Counsel, were dated 7 January 2009 and comprised 51 pages, having 290 paragraphs, and were filed on 6 February 2019, together with a reply to the owners’ submissions dated 5 February 2019, comprising 13 pages and 68 paragraphs.
  6. [8]
    The total submissions filed after the hearing were therefore 120 pages.
  7. [9]
    The parties filed an agreed list of issues on 1 November 2018, which set out the issues to be determined. This decision addresses those issues. The agreed list of issues is as follows:

Further Amended Application

1)  Taking into account the findings of the Queensland Civil and Administrative Tribunal (the Tribunal) in its decision dated 5 August 2016, and the decision of the Queensland Civil and Administrative Appeal Tribunal (the Appeal Tribunal) dated 14 November 2017, is the Applicant entitled to –

1.1 The sum claimed of $107,174.05 or any part thereof; and

1.2 Interest at the rate of 18% from 2 April 2014 to the date of payment on any amount found to be payable?

2)  More particularly, is the Applicant entitled to be paid:–

  1. $85,800.75 for the enclosed stage of the project;
  2. $5,000.00 for plastering works performed on 31 March 2014;
  3. $4,108.00 for plastering works performed on 2 April 2014;
  4. $402.75 invoiced by Finlaysons for doors on 3 April 2014;
  5. $550.00 invoiced by QIS Energy Conservation Systems Pty Ltd on a date unknown;
  6. $7,480.00 invoiced by the Applicant as suspension costs on 7 May 2015;
  7. $1,400.00 paid to ‘Jake’ on 14 May 2014;
  8. $1,277.50 paid to ‘Jake’ on 6 May 2014:
  9. $528.00 invoiced by the Applicant on 7 May 2015 for consultation with the Respondents and the town planner and the designer on a date unknown; and
  10. $3,224.00 invoiced by the Applicant on 7 May 2015 for works carried out pursuant to clause 20.6 of the Contract.

3)  If the applicant is not entitled to be paid anything under the contract, is he entitled to any amount on a ‘quantum meruit’ basis, and if so, how much?

4) If the applicant is entitled to be paid an amount on a ‘quantum meruit’ basis, does the tribunal has power to award interest to be paid on the amount awarded?

5)  Should the Respondents have to pay the Applicant’s costs of his application?

Amended Counter Application

6) Taking into account the decisions of the Tribunal and the Appeal Tribunal, what damages have the Respondents suffered because of the Applicant’s breaches of the contract?

7)  More particularly, are the Respondents entitled to damages:-

  1. In the sum of $80,000 being the difference in the value of two contracts that were obtained for the sale of the property;

7.1 In the sum of $80,000 being the difference in the value of two contracts that were obtained for the sale of the property;

7.2 For any amount that the Applicant is entitled to be paid for work done or by way of a quantum meruit given that it cost them $147,000.00 to complete the contract works after having validly terminated the contract with the Applicant;

7.3 In the sum of $45,780.00 for rent incurred;

7.4 For solatium [sic];

7.5 In the sum of $2,970.00 for extra planning costs incurred.

8)  Should the Applicant be required to provide a copy of all inspection certificates held by him to the Respondents?

9) Should the Applicant be required to pay the Respondents costs of their counterclaim?

Joint experts’ report

  1. [10]
    An experts’ conclave was conducted by a member of the Tribunal, and a joint experts’ report was dated 10 August 2015. The experts, Michael Davies and Jason Thornley, were both quantity surveyors. It is convenient to set out the substantive text of their joint report:

Issues Agreed By Experts

Cost of enclosed stage work if done

6. We agree that the value of the works to enclosure stage if done would be $85,801.00 as per the contract.

Cost to complete

7. We agree that the base value to complete the works is $61,223.00.

Cost to complete after enclosed stage prior to termination of contract

8. We agree that the claimed costs for work done beyond the enclosed stage are reasonable at $10,141.30.

9. We agree that the value to complete the work remaining under the contract is greater than the value of the fixed stage and final stage.

Replace metal roof with a terracotta roof

10. We agree that the cost to complete this work is $21,842.00.

Issues Not Agreed By Experts

Cost of enclosed stage work done

11. Michael Davies believes the works have reached Enclosed Stage.

12. Jason Thornley believes the requirements of the Enclosed Stage may not have been met and its value is $57,901.00 after deducting the works that appear to have not been completed in accordance with the contract drawings (apart from the roof):

 Enclosure stage as per contract  $85,801.00

 Less enclosure works   $27,900.00

Cost to complete

13. Jason Thornley believes that in addition to the base value of $61,223.00 in paragraph 7 to complete the works, completing the works would cost a further $38,400 being:

Additional works   $10,500.00

Additional works to enclosure stage $27,900.00

The builder’s submissions as to his claims

  1. [11]
    The builder’s amended claim is as follows:[1]
  1. That the [owners] pay the [builder] the sum of $107,174.05 for work performed;
  2. In the alternative, an amount assessed on a ‘quantum meruit’ basis being the value of work performed by the [builder] and for which the [owners] took a benefit;
  3. that the owners pay the builder interest on the amounts claimed paragraphs (a) and (b) at the contract default rate applicable from time to time (18%) from 2 April 2014 to the date of payment;
  4. costs.
  1. [12]
    The builder submits that the owners concede that, at the time of termination of the contract, the sum of $147,087.00 had not been paid to the builder.[2]
  2. [13]
    The builder took objection at the hearing to paragraphs 38 to 40 of the affidavit of Stewart Colin Gore Brett sworn 20 August 2018, on the basis that it alleged repudiation of the Contract by the builder, and that this had already been determined by the Tribunal, and the owners were precluded by an issue estoppel from pursuing the issue.
  3. [14]
    The builder claims for work performed under the contract in the sum of $107,174.05 as follows:
  1. Unpaid tax invoice dated 23/3/14 for work completed up to ‘Enclosed Stage‘ (see attachment 1) - $85,800.75
  2. Payment for work completed beyond Enclosed Stage:  $10,141.30

Gyprock $9,108.00

Door Supply $483.30 (this includes 20% margin – see Attachment 3)

Insulation $550.00 (see Attachment 4)

  1. Costs incurred to employ two (2) staff for two (2) weeks immediately after purported termination of contract by Respondents while no alternate work was available: $7,480.00 (see attachment 5)
  2. Variations: $3,752.00

Consultations   $528.00 (see attachment 6)

Works directed by engineer $3,224.00 (see attachment 7)

  1. [15]
    The builder acknowledges at the outset that he is not entitled to the sum of $85,800.75, representing the unpaid tax invoice for the work completed up to the Enclosed Stage as damages for breach of Contract, because the owners were the ‘innocent party’ in the termination, as the Tribunal found that the builder was in substantial breach, entitling the owners to terminate.[3]
  2. [16]
    In the alternative, the builder seeks payment of the amount of $107,174.05 on the basis of a quantum meruit.
  3. [17]
    His submissions note that the Appeal Tribunal has previously held in almost identical circumstances that a builder has a right to bring a claim for quantum merit notwithstanding the builder not being entitled to make a claim for the enclosed stage or to terminate the contract.[4]
  4. [18]
    He notes that a joint experts’ report, dated 10 August 2015, was produced by Michael Davies, quantity surveyor, and Jason Thornley, quantity surveyor and they agreed that:
  1. the value of the works to the enclosed stage (if done) would be $85,801, as per the Contract
  2. the cost to replace the metal roof with a terracotta roof was $21,842.
  1. [19]
    Mr Davies considered the works had reached the enclosed stage, but Mr Thornley did not.
  2. [20]
    Mr Thornley’s view was that the value of the works which had not been completed in accordance with the contract drawings was in the sum of $27,900.00, and therefore the value of the work completed by the builder under the Enclosed Stage was $57,901.00.
  3. [21]
    The builder submits that Mr Thornley included as part of the reduction the cost of supplying doors from Finlaysons Timber and Hardware Pty Ltd, which were eventually installed by another contractor, and were valued in total at $9,190.00 as follows:

a) Timber bi-fold doors to kitchen area – $5,560.00

b) Timber bi-fold doors to Bed 3 – $3,630.00

  1. [22]
    The builder therefore submits that Mr Thornley’s reduction should only be $18,710.00, leaving the reasonable costs incurred of the enclosed stage works in the sum of $67,091.00.[5]
  2. [23]
    The builder submits that the value of the work performed up to the first stage is therefore either $67,091.00 or $85,801.00, depending upon whether the value of the timber bi-fold doors is included or not.
  3. [24]
    The builder submits that he should be allowed further work to the value of $10,141.30 in the next stage of the contract, as follows:
  1. Gyprock $9,108.00
  2. Door Supply $483.30
  3. Insulation $550.00
  1. [25]
    The builder submits that value of this work was agreed by the experts, and that the owners incorporated this work in the building.
  2. [26]
    The builder submits that the owners’ evidence was that they were not aware of the insulation being delivered or being installed in the work, but that Mr Brett confirmed that he was never able to observe behind the sheeting. The builder submits that his evidence of the supply of the pink batts is the only reliable evidence upon which the tribunal may rely.[6]
  3. [27]
    The builder concedes that he is not entitled to claim for the employment of staff after termination on a quantum meruit basis, as it was not of benefit for and accepted by the owners.
  4. [28]
    The builder claims variations in the total amount of $3,752.00, as follows:
    1. (a)
      Consultations $528.00
    2. (b)
      Works directed by engineer $3,224.00
  5. [29]
    The builder seeks payment for these variations pursuant to section 84 of the Domestic Building Contracts Act 2000 (Qld). That section provides that a variation may be allowed if the variation was originally sought by the owner and the builder has complied with the requirements of the act, or with the approval of the tribunal; or if the variation was not originally sought by the owner, if there are exceptional circumstances, and the contractor would suffer unreasonable hardship if it was not allowed, and it is approved by the Tribunal.
  6. [30]
    The consultations variations were not originally sought by the owner, and the builder submits that there were exceptional circumstances and unreasonable hardship as follows:[7]

96. The consultations related to discussions with the town planner in relation to the roofing material required in the development approval and the requested change by the owners. The exceptional circumstances warranting the recovery of the variation for the consultations claimed was a change in roofing material for which a change in the approval was required. Clearly such an issue was exceptional given the amount of time the Tribunal spent assessing and deciding the evidence which was a primary issue in the preliminary question hearing.

97. The builder would suffer unreasonable hardship because some 10 days after the consultations occurred the owners terminated the Contract, thus not giving the builder an opportunity to make a formal written variation and claim an entitlement under the Contract. This agreement is also relevant on the exceptional circumstances limb.

  1. [31]
    The works directed by the engineer relate to extra tie-downs required to existing house roof rafters. The total claimed is $3,224.00 which includes a builder’s margin of 20% calculated on the sum of $2,770.00.
  2. [32]
    Engineering variations were not originally sought by the owner, and the builder submits that there were exceptional circumstances and unreasonable hardship as follows:[8]

109. The extra tie downs were required pursuant to an instruction by the engineer. The exceptional circumstances warranting the recovery of the variation for the extra tie downs was the urgent nature of the instruction from the engineer and the inability to make a proper written claim as a consequence of the dispute relating to payment which commenced on 4 April 2014.

110. The builder would suffer unreasonable hardship because the owners terminated the Contract shortly after the engineer’s direction and the builder’s carrying out of that work. Thus, the builder was unable to make a formal written variation and claim a proper entitlement to a variation under the Contract prior to termination.

  1. [33]
    The builder in his initial submission claimed interest on amounts which the Tribunal orders the owners to pay to him, noting the default contractual rate of 18%, and seeks interest at that rate on those amounts pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).
  2. [34]
    The builder notes that he may wish to make submissions as to costs, subsequent to the orders of the Tribunal.

The owners submissions as to the builders claims

  1. [35]
    The owners submit that the builder was only entitled to issue his ‘enclosed’ stage claim when he had completed that stage.[9]
  2. [36]
    The owners submit that the issue of repudiation remained a live issue between the parties in the proceedings, and that in light of further evidence it is open for the Tribunal to conclude that the builder did repudiate the contract.[10]
  3. [37]
    As to a claim for quantum meruit the owners say that the builder was not the innocent party, but was the party who committed a substantial breach of the contract, and has to establish a right on his part to be entitled to claim any amount for quantum meruit.[11]
  4. [38]
    The owners submit that the Appeal Tribunal’s decision in Partington is contrary to the decision of the Western Australia Supreme Court in Austman Ltd v Mount Gibson Mining Ltd[12]. They submit that in Austman’s case, the Court found that it was the innocent party who had the right to elect a quantum meruit, and it described the situation where the builder had breached or repudiated the contract and has sought a quantum meruit as ‘unsupportable’.[13]
  5. [39]
    The owners submit that the builder had the ability to obtain payment pursuant to the contract for the work he had performed, and that his default in his breach of the contract has disentitled him to payment pursuant to the contract.[14]
  6. [40]
    The owners go on to submit that there is nothing unconscionable or unjust in the owners retaining work that Manson was legally obliged to undertake, that he undertook pursuant to the contract, and for which he would be entitled to be paid and would have been paid had not he breached contract.[15]
  7. [41]
    The owners comment as to the principles relating to quantum meruit which is based upon the concept of restitution for unjust enrichment, and that to succeed the Court must conduct three broad enquiries:[16]
    1. (a)
      Have the owners been enriched?
    2. (b)
      Has the enrichment been obtained by them at the builder’s expense ?
    3. (c)
      Is the enrichment unjust?
  8. [42]
    The owners comment that it appears that the builder’s claims fall upon the ambit of a cause of action of ‘Work and labour done for, and at the request of or freely accepted by, a defendant’.[17]
  9. [43]
    The owners submit that the first principle relating to restitution is that the mere fact that a benefit has been conferred on a person does not give rise to an obligation by that person to pay the expenditure in providing that benefit, and that it can be said here that the builder has not alleged or identified any vitiating factor that would give rise to his right to claim restitution for unjust enrichment.[18]
  10. [44]
    The owners submit that the concept of free acceptance of the work involves not only the acceptance of work but the failure to take a reasonable opportunity to reject that work.[19]
  11. [45]
    The owners maintain that the builder is not entitled to an amount by way of quantum meruit, or restitution for unjust enrichment, but address the assessment of such an amount in the alternative.[20]
  12. [46]
    The owners note that the the builder seeks to deduct from the assessment by Mr Thornley of uncompleted works of the enclosed stage, an amount of $9,190.00 for bi- fold doors as follows:[21]
    1. (a)
      $5,560.00 for timber bifold doors to the kitchen area, and
    2. (b)
      $3,630.00 for timber bifold doors to bedroom 3.
  13. [47]
    The owners refer to an invoice that the builder has exhibited from Finlaysons relating to the provision of doors, and say that the builder seems to infer that they may be the bi-fold doors referred to by Mr Thornley. The owners say that the builder has not ‘gone so far’ as to submit that they were the bi-fold doors.[22]
  14. [48]
    The owners say that the submission by the builder that Mr Thornley’s estimate of the deduction of $27,900.00 for uncompleted works on the enclosed stage should be reduced by the amount of $9,190 for bi-fold doors, should not be accepted for the following reasons:[23]
    1. (a)
      The invoice from Finlayson’s is for the sale of six doors, each worth $47.50
    2. (b)
      There is no evidence that these doors were the bi-fold doors referred to by Mr Thornley.
    3. (c)
      The description of the doors being 2040mm high by 820mm wide in the case of two of the doors renders it inherently unlikely that these were the bi-fold doors referred to by Mr Thornley
  15. [49]
    Further, the price of these doors ($47.50 each) renders it inherently unlikely that they were the bi-fold doors for which Mr Thornley had allocated a cost of $5,560.00 and $3,630.00 respectively, although those figures would also include installation.
  16. [50]
    As to the builders claim for $9,108.00 for Gyprock, the owners say that the builder is not entitled to that work as part of the contract, as he did not complete the ‘fixing’ stage, and a claim for quantum merit for that amount should not be allowed, as the owners had no reasonable opportunity to reject this work and therefore cannot be said to have freely accepted it.[24]
  17. [51]
    As to the builders claim for $483.30 relating to supplying doors from Finlayson’s, the owners say that under the scope of works the builder would only be entitled to $402.75 as the costs of the doors without a margin of 20%, and that the claim for quantum merit should be rejected as the owners had no reasonable opportunity to reject the provision of the doors.[25]
  18. [52]
    As to the builders claim for $550.00 for the provision of pink batt insulation, the owners repeat their submissions as to quantum meruit, that they had no reasonable opportunity to reject the supply and installation of the installation and therefore cannot be said to have freely accepted it.[26]
  19. [53]
    The owners note that the builder abandoned his claim of $7,480.00 for the cost to employ two staff, and submit that this should reflect on costs.[27]
  20. [54]
    As to the builders claims for variations, the owners submit that the builder should not be allowed to bring such a claim at the late stage of the proceedings, and that had it been brought up earlier they would have sought to adduce evidence in relation to the requirement in s 84(4)(b) of the Domestic Building Contracts Act to show that would have been unfair to them if the builder was awarded an amount in relation to the variations.[28]
  21. [55]
    The owners alternatively submit that the builder is estopped from bringing a claim for variations as it was not brought earlier.[29]
  22. [56]
    As to the claim for $528.00 by the builder for consultations with owners and the town planner and the designer, the owners submit that the first they knew about this alleged variation was when they received the builders claim dated 7 May 2015, over 12 months after the contract had been terminated, and that there was no agreement for a variation.[30] Further, they submit that the builder was contractually required to obtain and pay for any planning approval or building approval.[31] In addition, the owners submit that the claim plus variation was not made in accordance with the Domestic Building Contracts Act[32], and that no exceptional circumstance has been demonstrated.[33]
  23. [57]
    The owners submit that the builder’s submission that he would suffer unreasonable hardship if the variations were not allowed, is preposterous, and that there is no evidence of any hardship the builder would suffer if he was not paid for this work.[34]
  24. [58]
    As to the claim by the builder for $3,224.00 relating to the supply and installation of extra tie-downs required by the engineer, the owners say that the builder, as a qualified and experienced builder, either knew or ought to have known what tie-downs and what number of tie-downs were required for the metal roof he constructed, and that it was within his scope of work that all such tie-downs would be provided and installed.[35]
  25. [59]
    The owners further submit that the requirement for the extra tie-downs arose simply because either the builder did not enquire of the engineer before installing the roof or because he estimated what he thought the engineer would require and got that estimate wrong.[36]
  26. [60]
    The owners submit that it would be unfair to them if they have to pay for the alleged variations because they were not aware the builder was consulting with the town planner and designer, and because the work as to tie-downs was within the scope of works.[37]
  27. [61]
    The owners submit that the Tribunal does not have power to award interest under s 58 of the Civil Proceedings Act 2011[38], or under the Domestic Building Contracts Act.[39]

The owners’ submissions as to their claims

  1. [62]
    The owners submit that there are seven breaches of the contract by the builder:[40]
    1. (a)
      He sought and obtained building approval for a house with a different roof to the one he had contracted to construct;
    2. (b)
      He failed to undertake the contract works by building a roof that did not conform to the building approval that he had obtained; and by constructing a timber floor without a subfloor clearance of less than 400mm for access to termite barriers;
    3. (c)
      He failed to provide the owners with certificates of inspection as soon as practicable after having received them;
    4. (d)
      He claimed an enclosed stage progress claim when that stage had not been completed;
    5. (e)
      He did not install the timber orders that had been specified or the highlight windows above the kitchen bi-fold door;
    6. (f)
      He suspended work when he was not entitled to do so.
  2. [63]
    The result, the owners submit, is that they were left with a partially completed renovation with a steel roof that was not approved and without various inspection certificates that were needed to obtain a form 21.[41]
  3. [64]
    The owners describe the losses they have suffered as, in the view of an ‘ordinary bystander’, to be:[42]
    1. (a)
      the cost to complete the renovation;
    2. (b)
      the costs of either removing and replacing the roof so that it complied with the building approval, or alternatively, obtaining appropriate approval for the roof that the builder had constructed; and
    3. (c)
      any diminution in value of the building caused by the builder’s breaches, including the owners’ inability to obtain a Form 21.
  4. [65]
    The owners claim $147,000.00 to complete the work that the builder had not undertaken. They referred to quotes which they obtained, one from WT Newman for $138,200.00, and one from Massa Construction for $138,815.15.[43]
  5. [66]
    The owners note that the experts view was that the cost to complete the work would be between $61,223.00 and $99,623.00.[44]
  6. [67]
    The owners describe the quotes from the alternate tenderers as ‘real-world’ evidence and submit that evidence should be accepted in preference to the estimates provided by the experts.[45]
  7. [68]
    It is acknowledged by the owners that the quotes from the alternate tenderers were obtained at a time when it was anticipated that the metal roof would have to be removed and replaced.[46]
  8. [69]
    The owners reject the proposition that they failed to mitigate their loss by providing a copy of the experts’ conclave report to the builders who they approached for quotes, as there is no evidence that providing a copy of the conclave report would have had any effect on the quotes.[47]
  9. [70]
    The owners submit that their evidence that they paid the sum of $147,000 to Mr Newman is uncontested, that it was not put to them that they have not paid it, and that their evidence in that respect should be accepted.[48]
  10. [71]
    In reference to a quote which was provided by Mr Newman in 2014, the owners say that the contract with him was entered into some two years later and that it is the contract with Mr Newman that should be had regard to.
  11. [72]
    The owners concede that Mr Manson’s quote did not include any rendering, but say that the plans did require external rendering, and that the plans take precedence over Mr Manson’s quote.[49]
  12. [73]
    The owners argue that the proposition put by the builder that Mr Newman performed additional ‘major variations’ to the contract of works is not supported by any evidence.[50]
  13. [74]
    The owners submit that they engage Mr Newman to undertake the completion work for the contract price of $147,000 which represents the normal and natural damages which they have suffered as a result of the builder’s breach of contract and its termination.[51]
  14. [75]
    As to the cost of obtaining building approval to retain the metal roof, the owners note that they had always wanted a metal roof, and it had been specified in the plans. They note that the experts estimate the cost of removing and replacing the roof at $21,842.00 and that the owners chose a cheaper alternative to incur the cost of town planning process to retain the roof at a cost of $2,970.00 instead.[52]
  15. [76]
    As to the diminution in value of the property due to lack of a certificate of occupancy, the owners submit that as a result of an inspection, the certifier issued Mr Manson with a form 61 notice of non-compliance on 4 July 2017, and Mr Manson was required to attend to the items set out in it, which he did not do.[53] They note those items as:[54]
    1. (a)
      install additional downpipe as per approved plans;
    2. (b)
      the subfloor clearance beneath the timber floors needed to be a minimum of 400mm for access to termite barriers;
    3. (c)
      all certificates of inspection as per the building approval other than the form 15 for window glazing as it had that document;
    4. (d)
      payment of $400 for the final inspection; and
    5. (e)
      reinspection of the above items once resolved.
  16. [77]
    In relation to the failure to provide inspection certificates, the owners submit that both in 2013 through 2017 and to this point in time, the owners had a right to a copy of the certificates of inspection held by the builder.[55] They say that without the certificates from the builder, neither Mr Newman or the owners could obtain a Form 21 final inspection certificate;[56] and note that Mr Manson told Mr McGahan (the first purchaser of the property) that Mr Manson had all the certificates necessary to obtain a Form 21 but that he would not release them until he was paid $110,000.00.[57]
  17. [78]
    The owners say that the issue is that the builder’s refusal to provide the certificates of inspection that he held (being both a breach of clause 11.5 of the Contract and a breach of s 39 of the Domestic Building Contracts Act 2000 (Qld), which in turn constituted a breach of clause 1.1(b) of the contract) prevented the owners, Mr Newman or anyone else from obtaining a Form 21.[58]
  18. [79]
    As to the contracts of sale, they say that the McGahan contract establishes that the value of the property with a Form 21 was at that time $880,000.00, and that the second contract to Mr Robinson and Ms O'Hanlon establishes that the value without a form 21 was $800,000.00.[59]
  19. [80]
    As to the claim for rent, the owners say that they base that upon the rent they paid at $420 per week.[60]
  20. [81]
    The owners submit that their claim for delay damages are not limited to an amount for liquidated damages provided in the contract, as those provisions did not accrue and cannot be relied upon by the builder.[61]
  21. [82]
    The owners deny that they failed to mitigate the damage by obtaining quotes in 2014, but not undertaking the completion work until June 2016. They submit that it was not unreasonable for them to wait until a decision was made as to whether they had validly terminated the contract, as they otherwise may have exposed themselves to both financial obligations to the builder and to the cost of completion which would have been financially devastating for them.[62]
  22. [83]
    As to the claim for Solatium, the owners note decisions of the Tribunal as to the treatment of such a claim[63]. They say that they have not had the benefit of the home they wanted, and had to put up with a partially completed renovation for nearly three years, and were unable to enjoy it even though they did not live in it.[64]
  23. [84]
    The owners submit that the other stressors in their lives, including pregnancy and issues surrounding it, do not prevent an amount being awarded for Solatium, although it may influence the assessment of the amount to be awarded.[65]
  24. [85]
    As to the right to the certificates, the owners say that they have a claim for the mandatory injunction sought, and do not have to show the reasons why they want the certificates, as they are entitled to them.[66]
  25. [86]
    As to interest, the owners say that the builder’s claims are now for quantum meruit and an amount awarded pursuant to s 84 of the Domestic Building Contracts Act 2000 (Qld), and the Tribunal has no power or jurisdiction to award the builder interest on any amount that may be awarded in his favour.[67]
  26. [87]
    Conversely, they say that they are entitled to interest on any amount awarded in their favour by way of damages arising out of the builder’s breaches of the contract, and that the appropriate rate of interest is that set by s 77(3)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) and regulation 34B of the Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Regulations’).[68]

The builder’s submissions as to the owners’ claims

  1. [88]
    The builder submits that the claim made by the owners for $80,000, being the reduction in value of the property by the renovation works not being certified must fail because:[69]
    1. (a)
      the cause of the difference in value between the two sale contracts was in fact the misrepresentation by the real estate agent in advertising the first sale contract (not any breach by the builder);
    2. (b)
      the contract was terminated prior to the fixing stage and practical completion such that the builder was never contractually obliged to obtain the Form 21 final inspection certificate;
    3. (c)
      the cause of action for loss in value may have been made against either:
      1. the real estate agent for the misrepresentation; or
      2. in the alternative, William T Newman, who assumed responsibility for the renovation works subsequent to the owners terminating the contract with the builder;
    4. (d)
      in the premises, the loss claimed under this head of damage was not suffered as a consequence of any breach of contract by the builder;
    5. (e)
      alternatively, the owners failed to adduce evidence in support of the change in value of the property required to be given by an expert;
    6. (f)
      in the further alternative, the loss claimed under this head of damage is too remote to sound in damages against the builder.
  2. [89]
    The builder submits that for the owners to recover damages for breach of contract they must show a causal connection between the builder’s alleged breach and the loss claimed, and that where an intervening act breaks the chain of causation, the defendant will not be liable for the loss.[70]
  3. [90]
    Further, the builder submits that the owner must show that the loss was not too remote and refers to the test of damages set out in Hadley v Baxendale[71] as to whether the loss and damage:[72]
    1. (a)
      arose naturally according to the usual course of things from the breach of contract itself; and
    2. (b)
      may reasonably have been supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it.
  4. [91]
    The builder submits that as a consequence of the marketing of the property leading to the first contract of sale, and the work conducted by the builder who completed the works, that the owners may have commenced proceedings against either of those parties; and that the cause of action for the difference between the value of the two sale contracts cannot be maintained against the builder and ought to have been claimed against those other parties:[73]
    1. (a)
      the real estate agent either for breach of contract or negligence in making the misrepresentation to the prospective buyer; or
    2. (b)
      William T Newman for a breach of contract to provide all relevant inspection certificates or complete the work required to obtain a Form 21, final inspection certificate.
  5. [92]
    As to remoteness, the builder submits that it may be inferred from the owners’ case and the evidence they rely upon, that at the time of entry into the contract it was never their intention to sell the property.[74]
  6. [93]
    The builder submits that it was arguably within contemplation of the parties that, if the builder failed to provide the relevant inspection certificates and breached clause 11.5 of the contract, a loss which may flow therefrom would be additional costs to obtain the appropriate inspection certificates; but that it is inconceivable that the parties contemplated that the loss of the value of the property would flow from a failure to provide relevant inspection certificates.[75]
  7. [94]
    The builder suggests that had the owners adduced evidence of representing to the builder at the time of entry to the contract their intention to complete the renovations and immediately sell the property to make a profit, loss alleged to have been suffered may have been in the contemplation of both parties, however that case is not alleged or made out.[76]
  8. [95]
    As to the quantum of any loss, the builder says that the market value is a matter of opinion evidence, requiring a sufficient degree of specialised knowledge to render expert evidence admissible, and that the owners were required to adduce opinion evidence from a suitably qualified expert as to the value of the property at each of the dates of the first sale contract and the second sale contract, which they did not do.[77]
  9. [96]
    As to the claim by the owners for the costs to complete the contract works, the builder notes that the owners accept that at the date of termination of the contract on 28 April 2014, the amount of $147,087.00 was, but for the termination, payable to the builder in the future pursuant to the contract, for the enclosed stage, fixing stage and final stage.[78]
  10. [97]
    The builder submits that the balance payable to it cannot be set off against the amount of $147,000.00 paid by the owners to William T Newman to complete the works, as the amount paid to Mr Newman was excessive and unreasonable.[79]
  11. [98]
    The builder suggests that the failure by the owners to provide the Experts Conclave Report to builders who were providing quotes to complete the work, demonstrates a failure by the owners to take reasonable steps to mitigate their loss.[80]
  12. [99]
    The builder submits that there are important differences between the William T Newman quote and the Manson Homes quote (which formed part of the contract), as to the provision of a new solar hot water unit to be fitted to the roof, the extent of painting inside and out, and the inclusion of major variations including the closing in of an existing window on the north side of the dwelling.[81]
  13. [100]
    As to the claim for $45,780.04 rent incurred whilst the property was being renovated, the builder says that the owner is entitled to damages for late completion is limited to the sum governed by clause 31.1 and item 11 of the contract.[82] He says that for the owners to claim a benefit in excess of those provisions would be too remote.
  14. [101]
    Further, the builder says that the owners are not entitled to claim loss for the period from 30 April 2014 (the end of the building period) to 1 June 2016 as they failed to engage Mr Newman until 29 April 2016.[83]
  15. [102]
    The builder says that even if a claim was allowed, the damage allowed would be limited to a claim of $350 per week (based on $50 per day, item 11 of schedule one of the contract) for a period of 35 weeks, being a total of $12,250.00.[84]
  16. [103]
    As to the owners’ claim for Solatium, the builder says the claim for $10,000.00 must fail because either the facts do not support such a claim or, the basis of the claim is not supported by a cause of action under which the Tribunal has jurisdiction.[85]
  17. [104]
    The builder submits that the general rule is that damages for anxiety, disappointment and distress are not recoverable for breach of contract, and that the owners have not met the legal evidential burden overcoming the general rule.[86]
  18. [105]
    The builder categorises the owners’ claim as not truly a claim for Solatium, but rather a claim for damage for personal injury (being a psychological decompensation), and that the Tribunal lacks jurisdiction to hear such claims, and the owners have not complied with the procedures to pursue such a claim under the Personal Injury and Proceedings Act 2002 (Qld) or have given notice of the intention to bring a personal injury claim.[87]
  19. [106]
    As to the claim for extra planning costs of $2,970.00, the builder says that the owners obtained a benefit by having a metal roof installed, that the engagement of Mr Newman was an intervening act which broke the chain of causation, and that the owners obtained a benefit by obtaining a better price on sale with the construction of a metal roof as opposed to a terracotta roof.[88]
  20. [107]
    The builder says that the relief sought by requiring the builder to provide a copy of all certificates is of no utility as the owners are no longer the registered owners of the property, and have adduced no evidence of the current owners requiring copies of the certificates. The builder says that it would be an unnecessary burden on the builder requiring him to produce certificates which have no utility.[89]
  21. [108]
    As to costs, the builder submits that the appropriate time for making submissions on costs is subsequent to the orders of the tribunal on the substantive questions.[90]

The builder’s submissions in reply to the owners’ submissions

  1. [109]
    The builder objected to the owners raising that the tribunal was not bound by its previous finding as to an allegation of a repudiation of the contract by the builder, and that the issue was still a live issue between the parties. The builder contended that the issue had been decided by the preliminary question, and that any submissions made by the owners in support of a repudiation argument ought to be disregarded.[91]
  2. [110]
    The builder took issue with the owners’ submission that the Tribunal ought to follow the Western Australian Supreme Court decision of Austman rather than the QCAT Appeal Tribunal decision of Partington & Anor v Urquhart (No 2) (‘Partington No 2’).[92] The builder noted that the latter decision had held (in almost identical circumstances) that a builder had a right to bring a claim for quantum merit notwithstanding the builder not being entitled to make a claim for the enclosed stage or to terminate the contract. [93]
  3. [111]
    The builder argued that the quantum meruit claim is for unjust enrichment, and that the builder is entitled to maintain such a claim under restitution.[94]
  4. [112]
    As to damages claimed by the owners, the builder submits that the owner is only entitled to recover damages which represent its loss flowing from the termination (being the difference between the cost of completing the outstanding work, less the amount of the contract price remaining unpaid) not the losses claimed by the owners which were not caused by the builder’s alleged breaches.[95]
  5. [113]
    In relation to the costs claimed by the owners to complete the work, the builder says that the utility of the builder’s quote which formed part of the contract is the ability to determine the differences and work required under that contract and the Newman contract.[96]
  6. [114]
    In relation to the diminution in value of the property claimed by the owners, the builder says that the real estate agent’s misrepresentation caused the first sale contract to be terminated, and that was conceded by Mr Brett in his evidence and under cross examination.[97]
  7. [115]
    In relation to the claim for rent by the owners, the builder says it would be nonsense to allow the owners to claim damages arising from late completion where they elected to terminate the contract prior to the contract date for practical completion.[98]
  8. [116]
    The builder further says that loss as to delay damages must have been in the contemplation of the parties at the time they made the contract, as to the probable result of the breach of it.[99]
  9. [117]
    As to mitigation of loss by the owners, the builder says that the owners were in a position to mitigate the loss by engaging Mr Newman in or about July 2014, rather than waiting for the decision of the Tribunal on the issue of whether they had validly terminated the contract.[100]
  10. [118]
    In relation to the inspection certificates, the builder says the contract has come to an end and the owners have sold the property, and the relief sought by the owners is therefore of no utility. The builder further submits that a court will only grant an injunction requiring performance of a positive obligation when the plaintiff shows that damages would be inadequate, whereas here the owners have specifically sought damages for the diminution in value of the property which they have now sold and a mandatory injunction requiring the performance of a positive obligation ought not be ordered.[101]
  11. [119]
    On the question of costs, the builder submits that a number of considerations will be relevant in the exercise of the discretion in awarding costs, which will not be known until a decision is made, and reserves its right provide further written submissions on that question.[102]

Discussion

  1. [120]
    I will discuss the issues raised in the agreed list of issues in the course of separately discussing the builder’s claims and the owners’ claims.

The builder’s claims

  1. [121]
    The builder claims the amount of $107,174.05 together with interest at the rate of 18% from 2 April 2014 to the date of payment. That claim is expressed as being alternatively for work performed under the contract, or as an amount assessed on a ‘quantum meruit’ basis.
  2. [122]
    In my decision of 5 August 2016, I found that the owners were not required to pay the progress claim for the enclosed stage claim at the time it was made.[103]
  3. [123]
    I have found some difficulty in determining how the builder’s claim of $107,174.05 is calculated. The total of the amounts claimed by the builder, as set out in the agreed list of issues, are $85,800.75 for the enclosed stage of the project, plus what adds to a total of $23,970.25 for other claims, which gives a total of $109,771.00. There is therefore a difference of $2,596.95 greater in the list of issues than the builder’s claim.
  4. [124]
    The claim by the builder for a progress payment for the enclosed stage of the project, in the amount of $85,800.75, was dated 23 March 2014.
  5. [125]
    The balance of the claim, in the amount of $23,970.25 as set out in the agreed list of issues, is comprised of the following amounts:
    1. (a)
      $5,000.00 for plastering works performed on 31 March 2014;
    2. (b)
      $4,108.00 for plastering works performed on 2 April 2014;
    3. (c)
      $402.75 invoiced by Finlaysons for doors on 3 April 2014;
    4. (d)
      $550.00 invoiced by QIS Energy Conservation Systems Pty Ltd on a date unknown;
    5. (e)
      $7,480.00 invoiced by the Applicant as suspension costs on 7 May 2015;
    6. (f)
      $1,400.00 paid to ‘Jake’ on 14 May 2014;
    7. (g)
      $1,277.50 paid to ‘Jake’ on 6 May 2014;
    8. (h)
      $528.00 invoiced by the Applicant on 7 May 2015 for consultation with the Respondents and the town planner and the designer on a date unknown; and
    9. (i)
      $3,224.00 invoiced by the Applicant on 7 May 2015 for works carried out pursuant to clause 20.6 of the Contract.
  6. [126]
    The builder sets out his claim in his submissions, as noted before, as adding up to $107,174.05 which includes an additional $21,373.30 for amounts other than the Enclosed Stage claim of $85,800.75 as follows:
  1. Unpaid tax invoice dated 23/3/14 for work completed up to ‘Enclosed Stage” (see attachment 1) - $85,800.75
  2. Payment for work completed beyond Enclosed Stage:  $10,141.30

Gyprock $9,108.00

Door Supply $483.30 (this includes 20% margin – see Attachment 3)

Insulation $550.00 (see Attachment 4)

  1. Costs incurred to employ two (2) staff for two (2) weeks immediately after purported termination of contract by Respondents while no alternate work was available: $7,480.00 (see attachment 5)
  2. Variations: $3,752.00

Consultations   $528.00 (see attachment 6)

Works directed by engineer $3,224.00 (see attachment 7)

  1. [127]
    Whilst I found in my earlier decision that the owners were not required to pay for the enclosed stage of the project at the time it was claimed, it is clear that the builder had performed work which formed part of the enclosed stage.
  2. [128]
    The builder has conceded that he is not entitled to the sum of $85,800.75 representing the unpaid tax invoice for the work completed up to the enclosed stage as damages for breach of contract.
  3. [129]
    As noted by the builder, the Appeal Tribunal has previously held that a builder has a right to bring a claim for quantum merit notwithstanding the builder not being entitled to make a claim for the enclosed stage or to terminate the contract. The Appeal Tribunal said as follows:[104]

[200] Having concluded that builder was not entitled to make the enclosed stage progress claim or terminate the contract, it follows that the builder had no entitlement to damages for breach of contract from the homeowners. Accordingly, we must turn to consider whether the builder is, nonetheless, entitled in the alternative, to restitutionary relief by way of a claim on a quantum meruit. We note that the issue of quantum meruit, although raised, was not considered by the Tribunal at first instance138 or by the original Appeal Tribunal.

[201] The High Court in Pavey & Matthews Pty Ltd v Paul139 held that the right to recover on a quantum meruit does not depend on an implied contract, but rather on a claim to restitution or one based on unjust enrichment140 The basis for the action lies in the defendant’s acceptance of works performed by the party claiming a quantum meruit141 It is not enough to show that the work was beneficial to the defendant142

[202] We are satisfied that the Partingtons accepted the benefit of the work done by the builder. They have utilised and built on the work done by the builder in the enclosed stage, and although rectifying it where necessary, have otherwise had the benefit of it.

[203] The contractor in such a case is entitled to recover the fair and reasonable value of the work performed. The assessment of this value is a question of fact to be determined according to all the relevant circumstances143 This ordinarily will involve an assessment of the reasonable cost of the benefit provided144 In the case of materials, this will be the fair market price145 and in the case of work, reasonable remuneration at current rates146

  1. [130]
    The owners have submitted that I should not follow the decision of the QCAT Appeal Tribunal in Partington, and should follow their interpretation of the decision of the Western Australian Supreme Court in Austman.
  2. [131]
    I do not accept that simply because the decision in Austman was not cited in the QCAT Appeal Tribunal decision that Partington was decided per incuriam and cannot be considered to be good law, as submitted by the owners.[105] The decision in Partington (made in 2018) was based upon consideration of Queensland legislation, and the mere fact that a single judge decision of a Supreme Court of a different state (made in 2012) is not referred to in a decision, does not reduce the validity of a Queensland decision – it could not be realistically suggested that every decision on a legal topic must refer to every other possibly similar decision in any jurisdiction in Australia. A single judge decision of a different State is not binding upon the QCAT Appeal Tribunal in any event.
  3. [132]
    I will follow the decision of the QCAT Appeal Tribunal in Partington, and accept that the builder may claim on a quantum meruit where the owners have utilised and built on the work done by the builder in a stage, and have had the benefit of it.
  4. [133]
    I consider that a similar situation exists in this matter, and that the builder is entitled on a quantum meruit basis to reimbursement for the work he performed in the enclosed stage, which the owners have utilised and had the benefit of.
  5. [134]
    Further, I note that the view of the Appeal Tribunal is consistent with the recent decision of the High Court in Mann v Paterson Constructions Pty Ltd [2019] HCA 32, delivered on 9 October 2019. The majority (comprising Gageler, Nettle , Gordon, and Edelman J) held that in respect of incomplete stages, the builder was entitled to recover payment for the incomplete stages on restitution upon a claim of quantum meruit.
  6. [135]
    Nettle, Gordon and Edelman J said at [176]:

[176] Generally speaking, a construction contract which is divided into stages, and under which the total contract price is apportioned between the stages by means of specified progress payments payable at the completion of each stage, is viewed as containing divisible obligations of performance [236]. In that event, where at the point of termination of the contract by the builder's acceptance of the principal’s repudiation some stages of the contract have been completed, such that progress payments have accrued due in respect of those stages, there will be no total failure of consideration in respect of those stages. The builder will have no right of recovery in restitution in respect of those stages, and the builder's rights in respect of those completed stages will generally be limited to debt for recovery of the amounts accrued due or damages for breach of contract. But if there are any uncompleted stages, there will be a total failure of consideration in respect of those stages due to the failure of the builder's right to complete the performance and earn the price. In that event, there will be nothing due under the contract in relation to those stages, and restitution as upon a quantum meruit will lie in respect of work and labour done towards completion of those uncompleted stages.

  1. [136]
    I generally prefer the assessment of the value of the works conducted within the enclosed stage to be that of Mr Thornley, as I have found that the enclosed stage was not completed (which was Mr Thornley’s view), however I do not accept his assessment unreservedly.
  2. [137]
    Mr Thornley considered that the value of the works which had not been completed was $27,900.00. However, included within that amount is $9,190.00 for supply of timber bi-fold doors to the kitchen area and bedroom 3.
  3. [138]
    The owners submit that the bi-fold doors identified by the builder are not shown to be the same bi-fold doors referred to by Mr Thornley.
  4. [139]
    The owners raise doubts as to the identity of the doors noting that the price of $9,190.00 for bi-fold doors is very high, as the invoice from Finlayson’s is for the sale of six doors, each worth $47.50 (a total of $285.00); and that the description of the doors being 2040mm high by 820mm wide makes it unlikely, in the case of two of the doors.
  5. [140]
    Mr Thornley’s assessment of reasonable price for the bi-fold doors includes installation. The mere cost of doors as shown on the invoice from Finlayson’s is not by itself determinative, as Mr Thornley’s estimate is not for supply of material and labour separately.
  6. [141]
    Whilst there is an apparent difference in size as to two of the doors, it is conceivable that they may have been modified to fit the frames, or that the frames themselves were modified to fit the doors, so the mere difference in size is also not determinative.
  7. [142]
    Mr Thornley has attributed prices to 2 sets of bi-fold doors. The builder has identified these as doors within the enclosed stage. The owners have not identified any other bi-fold doors which Mr Thornley could have been referring to, or which the Finlayson’s invoice related to.
  8. [143]
    In the absence of any substantiated alternate scenario, I accept that the bi-fold doors referred to by Mr Thornley, and those referred to by the builder, are the same doors.
  9. [144]
    I therefore accept the builder’s submission that the timber bi-fold doors, which were to be obtained from Finlayson’s Timber and Hardware Pty Ltd, and which were eventually installed by another contractor, should not be included in the valuation of the uncompleted works.
  10. [145]
    I therefore consider that the amount of completed works under the enclosed stage is $85,801.00 (which the experts agreed was the value of the completed enclosed stage) minus the amount of $18,710.00 (being Mr Thornley’s value of uncompleted works of $27,900.00 less the amount of $9,190.00 for the bi-fold doors) which is $67,091.00.
  11. [146]
    I allow the amount of $67,091.00 in favour of the builder, as the value of work performed under the enclosed stage, on the basis of a quantum meruit.
  12. [147]
    The experts agreed that the claimed costs for work done beyond the enclosed stage are reasonable at $10,141.30. That is the total of the amount claimed by the builder for further work as follows:
    1. (a)
      Gyprock   $ 9,108.00
    2. (b)
      Door Supply  $    483.30
    3. (c)
      Insulation  $    550.00
  13. [148]
    I consider that the builder is entitled to be paid for the Gyprock and Door Supply on a quantum meruit basis.
  14. [149]
    The owners cast doubt upon the supply of the insulation, but the builder points to the invoice for its supply, and says that it was installed. There is no direct evidence causing the builder’s claim for the supply to be not accepted. I therefore allow the claim for insulation.
  15. [150]
    I accept the experts’ assessment of the further works to be $10,141.30, and allow that amount in favour of the builder.
  16. [151]
    The claim by the builder for the costs of employing two staff for two weeks  immediately after purported termination of contract by the owners, (in the amount of $7,480.00), cannot succeed, as I have found that the contract was properly terminated by the owners. The builder concedes that point, and I do not allow that amount.
  17. [152]
    The builder claims variations for consultations in the amount of $528.00 and works directed by the engineer of $3,224.00. There are not written variation signed by the owners for either of these claims. In order to make such a claim the builder would have to show that there were exceptional circumstances for not obtaining the variation in writing, and that the contractor would suffer unreasonable hardship if it was not allowed, and the claim be approved by the tribunal.[106]
  18. [153]
    The builder’s claim as to consultations related to discussions with the town planner in relation to the roofing material. I considered the question as to the amendment of the roofing material (which led to the need for further consultation with the town planner) in my decision on the preliminary point as follows:

[147] I am not satisfied that the owners did at any time agree to amending the plans to show a tile roof. They clearly wanted a metal roof all along. If the question had been clearly put to them in January 2014 as to whether they agreed to amending the plans to show a tile roof, they would have asked many questions, and there is no evidence that they did so.

[148] Further, the later behaviour of the owners suggests that they would have immediately sought advice from other persons, as they did when the problem came into focus in March 2014, such as from a Town Planner. That did not occur, on their evidence, in January 2014, which reinforces the strong implication that the owners were oblivious of both the fact, and the consequences, of the changing of the plans by the builder.

[149] A different course of action was open to the builder when he became aware in January 2014 of the need to obtain Development Approval – instead of proceeding to amend the plans, and to then construct a metal roof without approval, he could have invoked Clause 15 of the Contract as to unforeseen circumstances and have asked for a variation.

[150] The builder says that a variation was not issued when the work was done because of urgency. The Contract provides in Clause 19.6 that:

Notwithstanding the above, the contractor is not required to create a variation document before carrying out the varied work if that work is required to be carried out urgently and it is not reasonably practicable in the particular circumstances to do so.

[151] However, he does not identify any basis for urgency. The building apparently already had a satisfactory tile roof on it in January, so the building was not exposed to the elements. Further, there is no correspondence from the builder referring to urgency at the time, and no reason shown as to why it was not reasonably practicable to issue a variation before commencing the works.

  1. [154]
    I maintain that view as to the amendment of the roofing material, and I consider that the builder proceeded to fit the metal roof without approval, without consultation with the owners, and without any demonstrated urgency.
  2. [155]
    I consequently do not consider that the builder is entitled to claim for time spent in further consultation with town planners, arising from his actions which had prolonged and confused the situation, and which are not demonstrated to have been urgent. I therefore do not allow the variation for consultation.
  3. [156]
    The works directed by the engineer related to the installation of extra tie downs. The need for extra tie downs related to fitting the metal roof. The builder in a statement of evidence related the events as follows:[107]

18. By March 2014 the roof has been replaced with colorbond [sic] and Cornell Engineers undertake an inspection at the request of the applicant. The engineers require tiedown for battens and rafters to wall and floor in existing roof only (not extended roof) and that the rafter connections be strapped (doc 10);

19. On 13.3.14 a preliminary inspection of the existing roof frame by Cornells suggested the tiedown and strapping further battens (doc 12);

20. On 14.3.14 the applicant carries out the extra tie down as requested by the engineer.

  1. [157]
    There are two aspects to the builder’s proceeding to fit the metal roof:
    1. (a)
      As I have found, there was no demonstrated urgency to fit a metal roof.
    2. (b)
      The builder having decided to fit a metal roof, he should have done so in a responsible way with appropriate caution, and should have obtained engineering advice (if required) before he did so.
  2. [158]
    I accept the owners submissions that fitting a metal roof was within the scope of works, and should have been anticipated and allowed for by the builder.
  3. [159]
    I am not satisfied that it is appropriate to approve a variation for the works directed by the engineer, where there was no demonstrated urgency for the works to be conducted without a signed variation, and where the tie-downs were required in the normal course of works.
  4. [160]
    I therefore do not allow an amount for the variation for works directed by the engineer.
  5. [161]
    Accordingly, I award the amount of $77,232.30 to the builder for his claim, calculated as follows:
    1. (a)
      Work completed within enclosed stage $67,091.00
    2. (b)
      Work completed beyond enclosed stage  $10,141.30

Interest

  1. [162]
    The builder initially sought interest at the rate of 18% from 2 April 2014 to the date of payment on any amount found to be payable. However, the builder now submits that it seeks interest on all sums pursuant to section 58 of the Civil Proceedings Act 2011 (Qld).
  2. [163]
    The owners submit that the Tribunal has no power to award interest either:
    1. (a)
      On money paid by way of restitution or on a quantum meruit basis, as there is no specific position provision in the QBCC Act, or the QBCC Regulations, providing for such interest.
    2. (b)
      Under the Civil Proceedings Act 2011 (Qld).
  3. [164]
    In Lyons v Queensland Building and Construction Commission & Dreamstarter Pty Ltd (in liquidation)[108] the Tribunal did not consider that it had power to award interest under the Civil Proceedings Act 2011 (Qld):

[162] I do not think s 58 of the Civil Proceedings Act 2011 applies to this Tribunal. S 3 of the Act says that unless otherwise expressly provided, the Act applies to civil proceedings in the Supreme, District and Magistrates Courts. There is no express provision in relation to the Tribunal in relation to the power to award interest. I reject Mr Lyons argument that the definition of “court” in the Act is capable of a wider interpretation in the absence of an express provision.

  1. [165]
    I am not satisfied that it has been demonstrated that the Tribunal has power to award interest on the quantum meruit award, or under the Civil Proceedings Act 2011 (Qld), and decline to order interest on any of the amounts allowed to the builder.

Costs

  1. [166]
    I will not deal with costs in these reasons, as costs are discretionary and need to be the subject of specific submissions made after consideration of these Reasons if any application for costs is subsequently made.

The owners’ claims

  1. [167]
    The owners claim various amounts as damages. These are set out in the agreed list of issues as follows:

(7.1) In the sum of $80,000 being the difference in the value of two contracts that were obtained for the sale of the property;

(7.2) For any amount that the Applicant is entitled to be paid for work done or by way of a quantum meruit given that it cost them $147,000.00 to complete the contract works after having validly terminated the contract with the Applicant;

(7.3) In the sum of $45,780.00 for rent incurred;

(7.4) For solatium [sic];

(7.5) In the sum of $2,970.00 for extra planning costs incurred.

  1. [168]
    In addition, the owners seek an order for provision of all inspection certificates held by the builder, and costs.
  2. [169]
    I will consider each of these claims in turn.

Difference in value on sale of the property

  1. [170]
    The owners engaged a different builder, Mr Newman, to complete the house after they terminated the contract with Mr Manson. However, as Mr Manson had not provided inspection certificates, the owners say that neither they nor Mr Newman could obtain a Form 21 final building certificate.
  2. [171]
    After the home was finished by Mr Newman, the owners listed it for sale with a real estate agent. The owners say that their anticipation was that any prospective buyer would be told that house did not have a Form 21 final building certificate, but that the real estate agent procured a contract for a sale price of $880,000.00 with a buyer named Mr McGahan, without disclosing that fact.
  3. [172]
    It appears that upon discovering that the property did not have a Form 21 final building certificate, Mr McGahan withdrew from the contract.
  4. [173]
    The property was subsequently re-listed for sale with a clear disclosure that there was not a Form 21 final building certificate for the property, and a new contract was entered into with different buyers for $800,000.00.
  5. [174]
    The owners submit that the $80,000 difference between the two contracts can be seen to represent the financial cost of the property not having a Form 21 final building certificate.
  6. [175]
    The builder says that the claim for loss in value may have been made against the real estate agent for misrepresentation, or against the subsequent builder Mr Newman, who assumed responsibility for the works. The builder also says that there is not expert evidence of the loss of value, and that the loss is too remote to sound in damages against him.
  7. [176]
    I cannot be satisfied that a loss of $80,000 is established merely by having regard to the two sales contracts. There may have been many factors which influenced the sale price at the time of each contract. It is possible that the market for houses of that type in that area may have suffered a decline in the time period between the two contracts. It is also possible that Mr McGahan may have had second thoughts about the purchase generally, and was able to use the alleged misrepresentation as a basis to withdraw from the contract, and the absence of a Form 21 final building certificate was not the sole cause for his withdrawal.
  8. [177]
    In order to establish a loss of value, expert advice from a professional valuer, or at least from an experienced real estate agent having knowledge of market in that area, would be needed to establish the effect of the absence of a Form 21 final building certificate on a sale to a ready, willing and able buyer.
  9. [178]
    It has not been established, for example, that the sale price to Mr McGahan was itself a reasonable market price, and was not a higher than market price. In the absence of expert evidence it cannot be assumed that the second sale was not in fact indicative of what was at all times a reasonable market price for the property even with a Form 21 final building certificate.
  10. [179]
    As I cannot be satisfied that cogent evidence has been adduced to establish that a loss resulted as a direct result of the failure to provide inspection certificates, I do not allow this claim.

Extra building costs incurred

  1. [180]
    The owners accept that at the date of termination of the contract on 28 April 2014 the amount of $147,087.00 would have been payable to the builder for the enclosed stage, fixing stage and final stage under the contract, but for the breaches by the builder.
  2. [181]
    I have found that the builder is entitled to the amount of $77,232.30 for work he performed (including the enclosed stage). The balance of the amount that the builder would have been entitled to under the contract would therefore have been $69,854.70 (being $147,087.00 minus $77,232.30).
  3. [182]
    The owners paid an amount to Mr Newman of $147,000.00 to complete the works. The owners had obtained a quote from Mr Newman for $138,200.00, and a quote from Massa construction for $138,815.15. They seek to calculate their extra cost based on the final amount paid to Mr Newman, rather than either of the quotes.
  4. [183]
    The owners acknowledge that the quotes from Mr Newman and Massa Construction were obtained at a time when it was anticipated that the metal roof would have to be removed and replaced. The experts agreed that the cost to replace the metal roof with a terracotta roof would be $21,842.00.
  5. [184]
    As approval was ultimately obtained to retain the metal roof, the quotes should be reduced by the cost of replacement of it, as that work was not done, to indicate the actual cost of work to complete the house without replacing the metal roof. The reduced quotes would therefore be from Mr Newman for $116,358.00 (being $138,200.00 minus $21,842.00) and from Massa Construction for $116,973.15 (being $138,815.15 minus $21,842.00).
  6. [185]
    The experts agreed that the base cost to complete the works was $61,223.00. Mr Davies believed that was the full cost of completion.
  7. [186]
    Mr Thorley expressed the view that in addition to the base value, additional works in the amount of $38,400 would be needed to complete the house, making a total cost of $99,623.00.
  8. [187]
    There is therefore an extremely wide discrepancy between the various assessments of the additional cost incurred, or which should have been incurred, by the owners in completing the house without replacing the metal roof:
    1. (a)
      Mr Davies $ 61,223.00
    2. (b)
      Mr Thornley $ 99,623.00
    3. (c)
      Quote from Mr Newman $116,358.00
    4. (d)
      Quote from Massa Construction $116,973.50
    5. (e)
      Final price Mr Newman  $147,000.00
  9. [188]
    It is very difficult to reconcile the disparity between these varying calculations of the cost of completion. The owners submit that regard should be had to only the final price paid to Mr Newman. That price is so much greater than any of the other propositions, that it is difficult to accept, in the absence of a compelling explanation as to why it is more than double the estimate of Mr Davies, and significantly more than any of the other prices.
  10. [189]
    The owners submit that the final price paid to Mr Newman is the real price, and that the quote from Mr Newman was two years earlier. There is no explanation however as to why Mr Newman’s price itself escalated from $116,358.00 to $147,000.00 in two years.
  11. [190]
    If the amount of $69,854.70 that I have calculated as the amount which the builder would have been entitled to in order to complete the works under the contract, is deducted from the amounts that have been proposed as the cost of completing the works, then the amount extra that the owners paid, or should have paid, over the contract price, on the various propositions is as follows:
    1. (a)
      Mr Davies     ($ 8,631.40)
    2. (b)
      Mr Thornley    $29,768.30
    3. (c)
      Quote from Mr Newman   $46,503.30
    4. (d)
      Quote from Massa Constructions  $47,118.80
    5. (e)
      Final price Mr Newman   $77,145.30
  12. [191]
    The builder submits that there are important differences between the quote from Mr Newman and his quote which the contract was based upon, as to the provision of a new solar hot water unit to be fit to the roof, extent of painting inside and out, and inclusion of major variations including the closing in on existing window on the north side of the dwelling.
  13. [192]
    The only logical explanation as to why the quotes from Mr Newman and Massa Constructions are so much greater than the original contract is that either building costs greatly escalated in the intervening time, or that the later quotes were for different or additional works.
  14. [193]
    No evidence was adduced as to the increase of building costs between the time of the contract and the time of the later quotes.
  15. [194]
    I cannot be satisfied that the later quotes were for the same work as provided for in the original contract with the builder, and have not been provided with any plausible explanation as to why the final price from Mr Newman was so much greater than his quote. That brings me back to the estimates of the experts.
  16. [195]
    I again prefer the estimate of Mr Thornley, as I accept his views as to the state of completion of the enclosed stage and as to the additional works.
  17. [196]
    I will therefore adopt the estimate of Mr Thornley and apply a balance of value of work remaining under the contract of $69,854.70 as discussed, resulting in an extra cost falling on the owners as a result of the breach of contract of the builder of $29,768.30 as calculated above.
  18. [197]
    The owners are entitled to recover the excess cost over the contract price as damages as a result of the termination of the contract.
  19. [198]
    I allow $29,768.30 to the owners as damages for the extra cost of completion arising from the termination.

Rent incurred

  1. [199]
    The owners base their claim of $45,780.00 for rent at $420.00 per week, for the period when they had to obtain alternate accommodation after the anticipated completion date with the builder. That equates to 109 weeks.
  2. [200]
    The contract with the builder contained an amount for liquidated damages for late completion. The owners submit that the provision does not apply where the contract is terminated for the builder’s default, and cannot be relied upon by the builder.
  3. [201]
    The builder says that the late completion clause in clause 31.1 and item 11 of the contract does apply, and limits the damages claimable by the owners. The builder submits that the damage allowed would be limited to a claim of $350 per week (based on $50 per day for a period of 35 weeks), being a total of $12,250.00.
  4. [202]
    The owners’ claim is for a period from 30 April 2014 (the end of the building period) to 1 June 2016. The builder notes that Mr Newman was not engaged to complete the works until 29 April 2016.
  5. [203]
    Clause 31 of the contract provides as follows:

Clause 31 Late Completion Damages

When the owner is entitled

31 If the works do not reach practical completion by the end of the building period the owner is entitled to liquidated damages in the sum specified in item 11 for each day after the end of the building period to and including the earlier of

(a) the date of practical completion

(b) the date this contract is ended: and

(c) the date that the owner takes control or possession of or uses the site or any part of the site.

  1. [204]
    The question of whether rent was claimable, or whether the owner was limited to liquidated damages under the contract, in the event of a breach by the builder was considered by the Appeal Tribunal in Partington (No 2) where the Appeal Tribunal commented:[109]

[229] That said, the contract provides for late completion damages in clause 32, by way of liquidated damages as specified in Item 11. Where an amount is not specified, as is the case here, the contract provides that the amount is $15.00 per day. Liquidated damages for delay are not uncommonly a substitute for common law damages. Although Mrs Partington asserted that she had wanted provision for reimbursement of rent in the event of delay in the contract, she acknowledged that the contract provided for liquidated damages for late completion. The liquidated damages provided for are not a penalty. We have concluded that on a proper construction of the contract, the only damages that may be claimed by the homeowners for late completion are the liquidated damages provided for in the contract.

  1. [205]
    The situation in Partington (No 2) was different, as, in that case, the Appeal Tribunal held that the contract was not lawfully terminated by the builder. However, the owner had not terminated the contract. In this matter the owner has terminated the contract, which ends the building period, so there is no further application for liquidated damages.
  2. [206]
    The general principles as to damages apply in a building dispute. Those principles were noted by the Appeal Tribunal in Cavric Pty Ltd t/a Cavalier Homes Mackay v Cameron[110] as:

[18] Both parties accepted that the starting point for the principles governing the assessment of damages was that discussed in Haines v Bendall:

The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured parties should receive compensation in the sum which, so far as money can do, would put that party in the same position as he or she would have been if the contract had been performed or the tort not committed.

  1. [207]
    The Appeal Tribunal went on in Cavric to allow lost rental due to delay in relation to a property that the builder knew was intended to be used as an investment property (after deduction of a figure for interest costs).
  2. [208]
    I consider that the owners are entitled to damages for late completion, on the principles as referred to in Cavric, and that their actual loss of $420 per week, being the cost of rent (which has not been challenged as a reasonable amount) should be the cost allowed, rather than costs under the contract as liquidated damages, where the contract was terminated due to default by the builder.
  3. [209]
    The date for practical completion under the contract was within 138 days of commencement.[111] Practical completion was never achieved by the builder. The builder suspended works on 2 April 2014. The parties agree that the works should have reached practical completion under the contract by 30 April 2014.
  4. [210]
    I consider that the date from which the owners’ right to damages for late completion runs is from the anticipated date for practical completion, being 30 April 2014. The question then becomes as to what date those damages should run.
  5. [211]
    The owners submit that their entitlement to rent that they had to pay, by way of general damages, ‘subject to any distant entitling matters’ runs from 30 April 2014 to the date that the works reached practical completion.[112]
  6. [212]
    A consideration in this matter is the extensive period of time that passed before Mr Newman commenced work to complete the house. The builder says that the owners could have mitigated their loss by engaging Mr Newman in or about July 2014, rather than waiting for the decision of the tribunal on the issue of whether they had validly terminated the contract. The owners say that as a matter of their financial capability, they could not take the risk of doing so until they knew their legal position as to termination.
  7. [213]
    The argument by the builder that the owners could have mitigated their loss, and that damages for late completion should only run for a reasonable time until a new builder commenced work, is a plausible argument.
  8. [214]
    The builder asserts that the owners accept that they had approximately $146,250.00 available to them for payment to an alternate contractor to complete the works.[113]
  9. [215]
    At the time of termination the owners had not paid the builder a total of $147,087.00 for stages of the work which they had contracted to pay by the end of the building period as follows:

Enclosed stage  $85,800.75

Fixing stage  $49,029.00

Final stage   $12,257.25

  1. [216]
    It must therefore be assumed that the owners had access to funding to the extent of $147,087.00 to pay the builder if the contract had proceeded without interruption.
  2. [217]
    The argument of the builder that the owners did have a financial capacity to engage another builder therefore does have some weight.
  3. [218]
    The quote from Mr Newman was dated 5 June 2014. The builder submits that the inference which the tribunal should draw is that the owners were in a position to mitigate their loss by engaging Mr Newman in or about July 2014, and that acting reasonably, the owners ought to have engaged Mr Newman who would have completed the work by the end of September, and this would have led the owners only incurring rent for a period of approximately five months after the contract ended.[114]
  4. [219]
    I accept those submissions of the builder as to the reasonable period which should be allowed, and will allow damages from 30 April 2014 to 30 September 2014, which is a period of five months, or approximately 22 weeks.
  5. [220]
    I therefore consider that the damages that the owners are entitled to as damages for late completion are $420 per week rent for 22 weeks, being an amount of $9,240.00.

Solatium

  1. [221]
    The owners claim an unspecified amount for Solatium. This is a claim that is often expressed as being for distress, disappointment and inconvenience.
  1. [222]
    The basis of such claims was considered by the Tribunal in William George Carlsen t/as W & E Carlsen Builders v Tresidder (‘Carlsen’)[115] and noted a line of authority which allowed such claims in building disputes:

[238] In Tamawood Ltd v Paans & Anor[116] dealing with a house that by reason of its construction became flooded in heavy rain, McGill DCJ was of the view that damages could be awarded for consequential losses because of this including damages for inconvenience and mental distress directly related to that inconvenience. And he opined that loss of amenity damages of the type awarded in Ruxley could be awarded if diminution in value of the property could not be shown.[117]

[239] In Kirkby & Anor v Coote & Ors[118] an agreed sum of $20,000.00 for inconvenience and distress was awarded to the owner of a house with such inadequate footings that there was a risk of the house collapsing.

[240] Mr Taylor cites Pearce, Ronald Benjamin t/as Freestyle Projects v Caswell[119] where Member Morzone (now Morzone DCJ) citing Ruxley, awarded damages for the stress and discomfort of not having a home to move into until almost 12 months after the due date for completion, plus the anxiety that arose because of totally unsatisfactory workmanship.

[241] In D Galambos & Son Pty Ltd v McIntyre[120] damages were awarded in circumstances where the homeowner was unable to make habitable rooms out of certain areas of the dwelling.

[242] In Coshott v Fewings Joinery Pty Ltd[121] damages were awarded for inconvenience caused by the need for remedial work and for the disappointment of not getting the quality result bargained for where it was unreasonable to remedy the breach.

[243] In Boncristiano v Lohmann[122] damages were awarded for stress caused by physical inconvenience because the builder had built an inadequately supported house, with incorrectly fitted weatherboards.

  1. [223]
    The Tribunal considered that no fixed rules applied for such claims, and proceeded to allow such a claim:

[250] For my part, I do not regard any of the authorities as setting out any binding rules or established principles when considering whether an award is appropriate for distress, disappointment or inconvenience in a contract for domestic building work.

[253] I propose therefore in this case to assess the proper level of compensation to the Respondents to compensate them for their non-financial loss for the breach of contract unbound by any restrictive rules.

  1. [224]
    Similarly, the Tribunal in Dyer v Spence[123] allowed such a claim.
  2. [225]
    The process of construction or renovation of a home can be a traumatic and very personal matter for the parties involved. The mere fact that the parties may have become upset or disappointed with each other, or with the work, will not in itself give rise to a claim for Solatium, which is a relatively unusual claim in matters of these types, and would only apply in clear cases where the consequences are marked, and have a clear degree of significance.
  3. [226]
    In this matter the owners say that the effect of the difficult process of construction, and the disputes with the builder, together with the consequent delays and increase in costs, placed both personal and financial strains upon them. Mr Brett was a student at relevant times, and his wife was pregnant with two children at various times during the length of time that the building process in these proceedings have occupied.
  4. [227]
    Ms Purnell poignantly expressed the effect of the matters on her and her husband in cross examination. She was asked about some personal matters relating to Mr Brett and to her health, and discussion she had with a counsellor, and responded as follows:[124]

Mr Matthews: And some of those things you discussed weren’t related to the building dispute?

Ms Purnell: I had gestational diabetes in my first pregnancy, so I wasn’t really worried about that. I was more worried about my partner’s health and getting through the litigation. Because that builder had so many delays, with a boat cruise excuse. Everything was a delay. Whether it was his submissions; whether it was his evidence; whether it was his conduct. Everything delayed it to make it going into five years to this day.

Mr Matthews: And it’s – what you’ve really said in your affidavit, and you would agree with me that it was that financial stress and the litigation that…?

Ms Purnell: Because we were paying a mortgage, rent, and lawyers. What family can afford that with a baby? That man left us on the side of the road with a two-week-old baby in an uninhabitable house. We tried to resolve it. We said we will give you – our solicitor said you give us $6,000, we will pay $6,000 for a new roof and it was done. He was going to get his $80,000. We tried to resolve it at mediation. He has put our life through sheer hell, our children through sheer hell. This is going on five years because that man there is guilty and he delayed the procedures.

  1. [228]
    The builder submits that such damages are not recoverable for breach of contract, and that the owners have not met the legal evidential burden overcoming the general rule, and further that the owners’ claim should be seen as a claim for damage for personal injury (being a psychological decompensation), and that the Tribunal lacks jurisdiction to hear such a claim, which should be pursued under the procedures under the Personal Injury and Proceedings Act 2002 (Qld).
  2. [229]
    I am satisfied, on the basis of the authorities referred to, that the tribunal does have jurisdiction to make an award for Solatium as general damages resulting from a breach of contract in a building dispute. I am further satisfied that the owners’ claim under that head in this matter is properly brought, and is made out.
  3. [230]
    I am satisfied that the owners have suffered extensive anxiety and stress, far beyond that which could be seen to be the result of a routine building dispute. The personal effect upon the owners has been marked and significant.
  4. [231]
    Whilst it might be described as hyperbole, I see force and basis in Ms Purnell’s anguished expression that ‘that man left us on the side of the road with a two-week-old baby in an uninhabitable house’.
  5. [232]
    The builder has contested the accuracy of conversations with the owners, and where required I have preferred the evidence of the owners. The effect of the matter upon the owners has been significant.
  6. [233]
    I am satisfied that it is appropriate to make an award in favour of the owners for Solatium in this matter.
  7. [234]
    The assessment of such an award is one that must be made having regard to the circumstances, and is not a matter of mathematical calculation. I am conscious of the builder’s submissions that other personal factors may impinge upon the owners’ responses. These are considerations the tribunal has to take into account, as noted in Carlsen:[125]

[263] There is no doubt from the manner in which they gave evidence, both Mr and Mrs Tresidder displayed symptoms of distress and upset but I agree with Mr McKinstry’s submissions that there are probably multiple causes of this. It is important for me to compensate for the non-financial loss caused by Mr Carlsen’s breach of contract and not for loss caused by other things.

[264] There are only two issues therefore for which it is appropriate to make an award for non-financial loss. They are respectively, the distress, disappointment and inconvenience caused by the leaks, by the shower arrangement and by the need to remake the shower and move the toilet bowl. For these matters I award the Respondents $1,500.00.

  1. [235]
    In Carlsen, an award of $1,500 was made, but I consider the claim in this matter to be far more extensive and pervasive, which leads to a significantly higher award.
  2. [236]
    I consider that an appropriate award for Solatium to the owners in this matter is $10,000.00, having regard to the significant extent of distress, disappointment and inconvenience caused to them, and having regard to the context of the building contract being for an amount of $245,145.00.
  3. [237]
    I allow the amount of $10,000.00 to the owners for Solatium.

Extra planning costs

  1. [238]
    The owners obtained additional planning advice as to retention of the metal roof which the builder had installed without permission. The cost of that additional advice was $2,970.00.
  2. [239]
    The owners submit that this additional planning costs was a cheaper alternative to the cost of removing and replacing the roof.
  3. [240]
    The builder says that the owners obtained a benefit by having a metal roof installed.
  4. [241]
    The owners had wanted a metal roof on the building from inception. Whilst it may be said that the owners ultimately obtained the roof they would have preferred, the route towards achieving that result was protracted and convoluted, due to the pre-emptory and unauthorised action of the builder in installing a metal roof without approval.
  5. [242]
    I consider that the owners acted prudently in attaining the additional planning approval, and thereby mitigated the cost of completion of the building. I consider that the additional planning cost of $2,970.00 was required as a consequence of the default of the builder, and allow that amount to the owners.
  6. [243]
    I allow the amount of $2,970.00 to the owners as extra planning costs.

Provision of copy of all inspection certificates

  1. [244]
    The owners seek a direction that the builder provide a copy of all inspection certificates to them.
  2. [245]
    The builder says that such relief is of no utility as the owners are no longer the registered owners of the property, and have adduced no evidence of the current owners requiring copies of certificates, and that it would be an unnecessary burden upon him to produce the certificates.
  3. [246]
    I am unable to ascertain any point at which the builder has actually denied that he has any such certificates. In all likelihood, the builder does have such certificates.
  4. [247]
    I consider that the owners are entitled to be provided with such certificates as a matter of course. It is not for the builder to determine whether they have a need for them or not. Rather, the onus is on the builder to show any proper basis upon which he should not hand over the certificates, particularly in the circumstances where the builder has been paid payments to date, and as a consequence of this decision will be allowed further payment on a quantum meruit basis.
  5. [248]
    I am satisfied that it is appropriate that an order be made that the builder provide to the owners all certificates of inspection in relation to the property which are in his power or possession.

Interest

  1. [249]
    The owners refer to seeking interest under the QBCC Act and QBCC Regulations in their submissions, but, such a claim is not contained in the agreed list of issues, and was not canvassed at the hearing or in the builder’s submissions.
  2. [250]
    In those circumstances, I do not allow interest on the amounts I have allowed to the owners.

Costs

  1. [251]
    As I previously indicated, the question of costs is one which is to be determined subsequent to delivery of these reasons, if an application is made.

Summary

  1. [252]
    I am satisfied that certain claims of the builder have been made out, and am also satisfied that certain claims of the owners have been made out.
  2. [253]
    I allow the following claims to the builder:

Work completed within enclosed stage $67,091.00

Work completed beyond enclosed stage $10,141.30

TOTAL $77,232.30

  1. [254]
    I allow the following claims to the owners:

Extra building costs incurred $29,768.30

Rent incurred  $ 9,240.00

Solatium $10,000.00

Extra planning costs $2,970.00

TOTAL $51,978.30

  1. [255]
    The result is that the owners are to pay to the builder the difference between the amount of the builder’s claims which have been allowed in the sum of $77,232.30, and the amount of their claims which have been allowed in the sum of $51,978.60, being an amount of $25,254.00.
  2. [256]
    I make the following orders:
  1. Stewart Brett and Sarah Purnell are to pay to Lee Manson t/as Manson Homes the amount of $25,254.00.
  2. Lee Manson t/as Manson Homes is to provide to Stuart Brett and Sarah Purnell all certificates of inspection in relation to the property at 16 Lynch Street Newmarket, Queensland, which are in his power or possession.
  1. [257]
    The parties may make a claim for costs subsequent to the making of these orders, even if the proceeding has ended, pursuant to section 106 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. [258]
    I will not pre-empt the possible outcome of any application for costs by any party, as submissions would be sought at the appropriate time if any applications were made, but draw the parties attention to the initial proposition contained in section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that each party usually bears their own costs in a Tribunal proceeding, and that the relative measure of success of each party may be a factor that is considered in exercising discretion as to costs under that Act, and under section 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld).

Footnotes

[1] Final written submissions of the applicant [15].

[2] Ibid [17].

[3] Ibid [37].

[4]Partington & Anor v Urquhart (No 2) [2018] QCATA 120, [200]-[207].

[5] Ibid [56].

[6] Ibid [73].

[7] Ibid [96] and [97].

[8] Ibid [109] and [110].

[9] Respondents submissions filed 21 January 2019, [21].

[10] Ibid [29].

[11] Ibid [33].

[12] [2012] WASC 202.

[13] Ibid [36].

[14] Ibid [42].

[15] Ibid [42].

[16] Ibid [48].

[17] Ibid [52].

[18] Ibid [56] and [57].

[19] Ibid [62].

[20] Ibid [63].

[21] Ibid [66].

[22] Ibid [66] and [67].

[23] Ibid [68].

[24] Ibid [72] and [73].

[25] Ibid [76] and [78].

[26] Ibid [79].

[27] Ibid [82].

[28] Ibid [88].

[29] Ibid [89].

[30] Ibid [98].

[31] Ibid [101].

[32] Ibid [103].

[33] Ibid [111].

[34] Ibid [116].

[35] Ibid [118].

[36] Ibid [120].

[37] Ibid [146] and [147].

[38] Ref XMR Holdings Pty Ltd v Body Corporate for Xanadu [2016] QCAT 27, Lyons v Queensland Building and Construction Commission & Dreamstarter  Pty Ltd (in liquidation) [2016] QCAT 218.

[39] Ibid [164].

[40] Respondents’ submissions filed 21 January 2019, [167].

[41] Ibid [170].

[42] Ibid [171].

[43] Ibid [174].

[44] Ibid [174].

[45] Ibid [176].

[46] Ibid [177].

[47] Ibid [181], [182].

[48] Ibid [185].

[49] Ibid [192].

[50] Ibid [193].

[51] Ibid [202].

[52] Ibid [204].

[53] Ibid [209].

[54] Ibid [210].

[55] Ibid [215].

[56] Ibid [231].

[57] Ibid [232].

[58] Ibid [235].

[59] Ibid [237].

[60] Ibid [242].

[61] Ibid [252].

[62] Ibid [259].

[63]William George Carlsen t/as W & E Carlsen Builders v Tresidder [2015] QCAT 260; Dyer v Spence [2017] QCAT 211.

[64] Ibid [267].

[65] Ibid [271].

[66] Ibid [275].

[67] Ibid [281].

[68] Ibid [282].

[69] Ibid [128].

[70] Final written submissions of the builder filed 6 February 2019, [129], [130].

[71] 156 ER 145,151.

[72] Final written submissions of the builder, filed 6 February 2019, [134].

[73] Ibid [166], [167].

[74] Ibid [171].

[75] Ibid [173], [174].

[76] Ibid [174].

[77] Ibid [177].

[78] Ibid [183].

[79] Ibid [187].

[80] Ibid [204].

[81] Ibid [208].

[82] Ibid [218].

[83] Ibid [237].

[84] Ibid [243].

[85] Ibid [247].

[86] Ibid [264]-[265].

[87] Ibid [270].

[88] Ibid [276]-[278].

[89] Ibid [283].

[90] Ibid [285].

[91] Builder’s written submissions in reply dated 5 February 2019, [15].

[92] [2018] QCATA 120.

[93] Ibid [17].

[94] Ibid [25].

[95] Ibid [54].

[96] Ibid [58].

[97] Ibid [61].

[98] Ibid [62].

[99] Ibid [63].

[100] Ibid [64].

[101] Ibid [65]-[66].

[102] Ibid [67]-[68].

[103] [2016] QCAT 282, [225].

[104]Partington & Anor v Urquhart (No 2) [2018] QCATA 120, [200]-[203].

[105]Respondent submissions filed 21 January 2019 at [35].

[106] Domestic Building Contracts Act 2000 (Qld), s 84.

[107] Statement of Evidence of Lee Manson, dated 2 October 2014.

[108] [2016] QCAT 218, [162].

[109] [2018] QCATA 120, [229].

[110] [2010] QCATA 90, [18].

[111] Schedule One, Item 10, Contract Dated 29 November 2013.

[112] Respondents submissions, filed 21 January 2019, [255].

[113] Final written submissions of the Applicant, dated 6 February 2019, [239].

[114] Ibid [242].

[115] [2015] QCAT 260.

[116] [2004] QDC 427.

[117]Ruxley Electronics & Construction Co Ltd v Forsyth [1996] AC 344, [59], [60].

[118] [2005] QSC 197.

[119] [2009] QCCTB 192.

[120] (1974) 5 ACTR 10.

[121] Unreported, New South Wales Supreme court, CA, 15 July 1996.

[122] [1998] VR 82.

[123] [2017] QCAT 211.

[124] Transcript 5 November 2018, 1-87.

[125]William George Carlsen t/as W & E Carlsen Builders v Tresidder [2015] QCAT 260, [263]-[264].

Close

Editorial Notes

  • Published Case Name:

    Lee Manson t/as Manson Homes v Stewart Brett and Sarah Purnell (No 2)

  • Shortened Case Name:

    Manson v Brett (No 2)

  • MNC:

    [2019] QCAT 411

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    18 Nov 2019

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