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Schofield v QBCC & Anor[2019] QCAT 73

Schofield v QBCC & Anor[2019] QCAT 73

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Schofield v QBCC & Anor [2019] QCAT 73

PARTIES:

RUSSELL SCHOFIELD

and

KERRIE SCHOFIELD

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

SIMON JOBLING

TRADING AS S.A.J. CONSTRUCTIONS

(second respondent)

APPLICATION NO:

GAR077-18

MATTER TYPE:

General administrative review

DELIVERED ON:

15 March 2019

HEARING DATE:

5 December 2018

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

  1. The decisions of the First Respondent to disallow the claim of the Applicants under the statutory insurance scheme are set aside.
  2. It is declared that the contract was properly terminated by the Applicants on and from 17 October 2017.
  3. The parties may make submissions concerning costs in this matter within 14 days of publication of this decision.

Of CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – whether a building contract properly terminated – grounds for termination – effect of dealings between the parties after termination – extensions of time – unreasonable delay in practical completion – contribution by Owner to delay in practical completion – breach of contract by Contractor – breach of contract by Owner – breach notices – termination notices – Master Builders Residential Building Contract – whether ‘time is of the essence’

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – STATUTORY WARRANTIES FOR RESIDENTIAL BUILDING WORK – grounds to deny claim – termination notices – statutory insurance policy terms

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B; Schedule 1B, s 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 24(1)(b), s 24(1)(c)

Elderslie Property Investments No 2 P/L v Dunn [2008] QCA 158

Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723

Stickney v Keeble [1915] AC 386

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

First Respondent:

S Tabaiwalu, in-house solicitor of the Queensland Building and Construction Commission

Second Respondent

Self-represented

REASONS FOR DECISION

  1. [1]
    Mr Russell and Mrs Kerrie Schofield have lived in a shed on their property at 6 Vines Court, Beerwah, Queensland, since 2014. They planned to have a house built on this property to meet their requirements for a permanent dwelling. For this purpose they contracted with Simon Jobling, who trades as S.A.J. Constructions, to build their house.
  1. [2]
    On 9 March 2016 the Schofields and Mr Jobling entered a Master Builders Residential Building Contract – Level 2 under which Mr Jobling agreed to build the house for the Schofields. The time allowed for the construction of the house was 165 days, which included allowances of 15 days for inclement weather and 30 non-working days. This means that, if nothing further intervened, the house should have been finished to practical completion by 21 August 2016.
  2. [3]
    However, it was agreed by the parties that Mr Jobling would, and it appears that he did, commence the job on 9 August 2016, which meant that the practical completion date became 21 January 2017.
  3. [4]
    The agreed price for the construction of the House was $357,937, including GST.
  4. [5]
    At the date when the contract was entered into Mr Jobling held a Queensland Building and Construction Commission (‘QBCC’) licence of the appropriate class to build the House. Mr Jobling’s licence was suspended by the QBCC for the period 20 July 2017 to 26 July 2017, but nothing relevant to this decision turns on this fact.
  5. [6]
    The contract was a level 2 regulated domestic building contract within the meaning of those terms in Schedule 1B of the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’).
  6. [7]
    There is no dispute that the QBCC issued a Certificate of Insurance under the Queensland Home Warranty Scheme in favour of the Schofields in respect of the house being built under this contract.
  7. [8]
    The Schofields paid Mr Jobling progress payments under the terms of the contract, but this Tribunal does not need to assess the amount paid or owing. As at the date of the hearing of this matter the house had not reached practical completion.
  8. [9]
    Clause 8.3 of the contract says:

The Contractor must bring the Works to Practical Completion by the Date for Practical Completion.

  1. [10]
    Practical completion of a domestic building contract occurs on the day when the subject work is completed:
  1. (a)
    in compliance with the contract, including all plans and specifications for the work and all statutory requirements applying to the work; and
  2. (b)
    without any defects or omissions, other than minor defects or minor omissions that will not unreasonably affect occupation; and
  3. (c)
    if the building owner claims there are minor defects or minor omissions—the building contractor gives the building owner a defects document for the minor defects or minor omissions;[1] and
  1. (d)
    the Builder issues a notice of the date of practical completion and a final inspection has been undertaken.[2]

There was no evidence tendered at the hearing that Mr Jobling had achieved practical completion, so it was uncontested that the work had not reached practical completion by the date of the hearing.

  1. [11]
    Because Mr Jobling did not complete the house to practical completion, and because there are claims by the Schofields that there are remaining defects in the construction of the house, the Schofields submitted to the QBCC a claim under the terms of the Home Warranty Scheme, which is also called the statutory insurance scheme.
  2. [12]
    The Schofields applied to the QBCC for compensation under the statutory insurance scheme on 23 October 2017 following termination of the contract on 17 October 2017. Based on the contract date of 9 March 2016 this is within the two-year period allowed for a valid claim to be made.
  3. [13]
    By letter dated 1 December 2017 the QBCC declined the Schofields indemnity under the statutory insurance scheme on the following basis:

Part 1.2 Termination of Contract

The QBCC is only liable for loss under this Part when the contract is for a fixed price and the insured has properly terminated the contract with the contractor.

As previously advised to you by email, QBCC is unable to make a decision with regard to the position of your contract. As QBCC has not been provided with the necessary information to satisfy the above part of the policy conditions, a claim for non-completion cannot be admitted and has been declined

  1. [14]
    Essentially the QBCC formed the view that it could not be certain as to whether the contract had been properly terminated by the Schofields or, if it had been properly terminated, there was uncertainty concerning the date when the termination took effect.
  2. [15]
    On 21 December 2017 Mrs Schofield replied to the QBCC rejection of the claim and provided considerably more detail about the contract and its performance and invited the QBCC to reconsider its decision to reject their claim.
  3. [16]
    The QBCC treated the Schofields’ submission as a request for an Internal Review and conducted a review of their claim, advising them by letter dated 25 January 2018 that their claim had been further considered and again rejected. The reasons for rejection remained that the QBCC could not be satisfied that the contract had been properly terminated by the insured party. The QBCC identified what it believed to be four key concerns that meant it could not reach a conclusion sufficient to allow a claim: (1) whether the threat to terminate the contract on 24 July 2017[3] was effective as a termination; (2) whether the threat to terminate issued on 3 October and the notice to terminate on 17 October were effective; (3) the consequences of the continuing apparent relationship between the parties after 17 October 2017 including further attempts to resolve the dispute; and (4) the effect, if any, of the contractor’s purported termination of the contract on 20 December 2017. The decision made by the QBCC by its internal review officer was:

QBCC is only liable to pay for loss under this Part when the contract is for a fixed price and the Insured has properly terminated the contract with the contractor…’Properly terminated’ means lawfully under the contract or otherwise at law, upon the contractor default.

I have decided that the contract has not been validly terminated at the default of the licensee. Therefore, I have decided to disallow the claim under the Queensland Home Warranty Scheme.

What the Schofields are seeking

  1. [17]
    Because they have been denied compensation by the QBCC under the statutory insurance scheme the Schofields are seeking to have to have this Tribunal set aside those decisions of the QBCC declining compensation and declare the date on which the contract was properly terminated, if it has been properly terminated. They seek the following orders:
    1. The decision of the QBCC to disallow the claim under the statutory insurance scheme be set aside; and
    2. It is declared that the contract was properly terminated in accordance with clause 20.2 of the contract or, in the alternative, that the contract was terminated in accordance with the common law.
  2. [18]
    The orders proposed by the Schofields are incomplete because they lack certain relevant detail, but the intent of the orders is sufficiently clear.

History of relevant events

  1. [19]
    There is a history of delay involving the building of the house. The Schofields blame Mr Jobling for these delays, while Mr Jobling asserted that the delays resulted from the conduct of the Schofields. The history of the issues is set out in more detail below.
  2. [20]
    Construction of the house was not completed by Mr Jobling within the 165 days prescribed in the contract and agreed by the parties; in particular, the house was not completed by 21 January 2017.
  3. [21]
    Notices relating to an extension of time for practical completion may be either: a notice for Extension of Time, which could result, for example, from inclement weather, unavailability of material and other factors; or a Variation Notice, which arises when the property owner requests a material change to the previously agreed specifications for the house which affects the time it will take to complete construction of the house.
  4. [22]
    On 24 July 2017 solicitors for the Schofields sent Mr Jobling a letter that said, among other things:

We are also instructed that the Contract provides 165 days for construction with practical completion to be reached on or before 28 February 2017 [sic]. As of the date of this correspondence 345 days have passed since you started works on the site. Accordingly you are also in breach of clauses 20.1(a), (d) and (f) of the Contract.

In accordance with Clause 20.1 we give you notice that you must remedy these breaches within ten (10) Business Days after receiving this notice.

Failure to remedy the above breaches will entitle our client to terminate the Contract, without prejudice to any other rights or remedies they may have against you.

  1. [23]
    By email to the Schofields’ solicitor dated 27 July 2017 Mr Jobling expressed a wish to finish the house and alleged several breaches of the contract by the Schofields.
  2. [24]
    Also on 27 July 2017 Mr Jobling issued Variation Document number 2[4] which listed twelve variations said to be of ‘various dates’, apparently requested by the Schofields, which provided no detail concerning any delay such variations incurred nor their cost. Under clause 12.3 of the contract any such variation must be put in writing by the builder within 5 business days of the agreement to the variation, and before any work on the variation is commenced. Clause 12.4 of the contract requires, among other things, that a variation document include the date of the request for variation, the estimate of delay arising from such variation, and the consequences for the cost of the job. Variation Document number 2 appears not to have been given within the notice period required nor did it provide the detail required.
  3. [25]
    On 4 August 2017 Mr Jobling wrote personally to the Schofields’ solicitor and said, among other things:
    1. We can reach practical completion by 29 September 2017
    2. As for variations, we agree on the 3 you have stated, however the other that were mentioned was merely to show that your clients request was complete. Any extra variations, your clients will have to request a variation of the works and it will be written up on a variation form…
    3. If we do not reach practical completion by the 29 September 2017, we agree we are in breach of clause 20.1(a), (d) and (f) of the contract and your client is entitled to terminate the contract…
  4. [26]
    It is reasonable to infer from this letter there were no outstanding variations apart from one mentioned in the letter that concerned lighting in the main bedroom; that Mr Jobling could complete the job by 29 September 2017; and that he understood he would be in breach of the contract and it could be terminated if he failed to do so, subject to any allowable extensions of time.
  5. [27]
    Solicitors for Mr Jobling sent a letter dated 25 August 2017 to the Schofields’ solicitor which apparently confirmed earlier conversations between the Schofields and Mr Jobling that Mr Jobling is continuing to build the house in accordance with the contract, and:

our respective clients agree that the present Date for Practical Completion pursuant to the contract is 29 September 2017 subject, of course, to any further extensions of time pursuant to the contract.

Attached with this letter were 12 Variation Documents, all dated 20 August 2017, that were largely defective in that most failed to specify one or more relevant details such as the date of the request or the resulting delays and costs and were, thus, of doubtful enforceability. 8 of these variations were said by the solicitor to have been completed, while the remaining 4 Variation Documents, numbered 10, 11, 12, and 13, were said to involve variations to costs, with no mention of any change to schedule.

Extensions of time

  1. [28]
    By about 25 August 2017 Mr Jobling had claimed an extension of time of an additional 126 days, or 75% more than the time originally allowed for practical completion. The variations involved cannot be characterised as sufficiently complex to warrant such an extension of time.
  2. [29]
    In late October 2017 Mr Jobling issued notices 5, 6, 7, 8, and 9 claiming an extension of time: numbers 7, 8, and 9, issued on 20 October 2017, were said to supersede notices 5 and 6, which were issued on 19 October 2017. Notices 7, 8, and 9 claimed extensions of time as follows:
    1. Notice 7: due to a latent condition on site, being a lack of power to the site; between 24 August 2017 and 3 October 2017: delay of 27 business days;
    2. Notice 8: suspension of work for the same reason as listed in Notice 7, being a lack of power to site; between 26 September 2017 and 17 October 2017: delay of 10 business days; and
    3. Notice 9: due to inclement weather: between 13 October 2017 and 20 October 2017: delay of 7 days.
  3. [30]
    Clause 15.1 of the contract required that all such notices be given to the Schofields within 10 days of Mr Jobling becoming, or ought reasonably to have become, aware of the cause and extent of the delay. Further, Schedule 1B, s 42 of the QBCC Act provides:
  1. (1)
    The building contractor under a regulated contract may only claim for an extension of time under the contract if—
  1. (a)
    the delay causing the need for the extension of time was—
  1. (i)
    not reasonably foreseeable and beyond the reasonable control of the contractor; or
  2. (ii)
    caused by the building owner; or
  3. (iii)
    caused by a variation of the contract complying with schedule section 40; and
  1. (b)
    the claim is made to the building owner in writing; and
  2. (c)
    the claim is given to the building owner within 10 business days of the building contractor becoming aware of the cause and extent of the delay or when the building contractor reasonably ought to have become aware of the cause and extent of the delay; and
  3. (d)
    the owner approves the claim in writing.
  1. (2)
    A building contractor under a regulated contract must not seek to rely on an extension of time under the contract unless the contractor claimed for the extension of time in compliance with subsection (1).
  2. (3)
    A building contractor under a regulated contract must give the building owner a signed copy of a claim for an extension of time within 5 business days of the owner approving the claim.
  1. [31]
    Noting that by 20 October 2017 Mr Jobling had been on the job since 9 August 2016 and had managed to undertake construction from this date without earlier complaint about a lack of electricity to the building site, Notices 7 and 8 appear little more than artifice, while Notice 7 was also out of time. Notice 9, claiming 7 days for inclement weather, was advisory was since the contract had already allowed 15 days delay for inclement weather.
  2. [32]
    If the separate extension of time claims made by Mr Jobling in claims 7, 8 and 9 on 20 October 2017, which total 44 days, are added to those made for variations listed in paragraph [28] the total extension of time claim amounts to 170 days, or longer than the original time to complete the entire build. I conclude from this evidence that the claims on which extensions of time were made were largely an artifice, largely issued out of time and therefore not allowable and, insofar as they related to variations, they cannot be characterised as sufficiently complex to warrant the claimed extensions of time. These conclusions raise a question over the probative value of Mr Jobling’s evidence.

Practical completion date

  1. [33]
    Based on the apparent agreement between the parties to extend the date for practical completion, and taking account of the variation documents mentioned above, I am satisfied that the parties had agreed to continue the existing contract, which had remained on foot throughout, substituting 29 September 2017 as the date for practical completion, subject to, as Mr Jobling’s solicitors noted, ‘any further extensions of time pursuant to the contract’. [emphasis added]
  2. [34]
    By letter dated 30 August 2017 to Mr Jobling’s solicitor the Schofields’ solicitor agreed with the extension of time for practical completion mentioned in Mr Jobling’s solicitor’s letter, and reiterated:

… your client is not entitled to any further extension of time under the Contract. If the works are not completed on or before 29 September 2017 our client will terminate the contract.

  1. [35]
    On 25 September Mr Jobling issued 3 notices to the Schofields alleging delays caused by the Schofields resulting from their ‘interferences of works’ and their ‘failure to connect mains power to the site’. In no case was the delay caused by this alleged conduct by the Schofields specified. A further two notices were issued by Mr Jobling dealing with the same issues on 26 September 2017 neither of which claimed any extension of time for delay.
  2. [36]
    A letter from Mr Jobling to the Schofields dated 26 September 2017 and sent by email gave notice that Mr Jobling was suspending work on site because of a claimed substantial breach of the contract by the Schofields, namely, ‘Your substantial breach is your failure to connect mains power to the site as required pursuant to the contract’. The Schofields were given 10 business days to remedy this alleged substantial breach, although Mr Jobling did not identify a consequence if they failed to do so. The Schofields had mains power connected to the site by 3 October 2017.[5]
  3. [37]
    By email dated 3 October 2017 the Schofields’ solicitor contacted Mr Jobling’s solicitor alleging, among other things, that Mr Jobling had unlawfully suspended work on the contract and, in particular:

To be clear our client will terminate the contract in accordance with clause 20.2 without prejudice to any other rights or remedies they may have if Practical Completion is not reached on or before 17 October 2017. [emphasis in original].

  1. [38]
    On 17 October 2017 the Schofields’ solicitor sent a notice, in the form of a letter sent by email to Mr Jobling personally, purporting to terminate the contract under clause 20.2:

… by reason of the failure by you to remedy the breaches referred to in the Notice to Remedy Breach dated 24 July 2017 and 3 October 2017 pursuant to clauses 20.1(a), (b), (d) and (f) of the Contract …

These alleged breaches involve:

  1. (a)
    cl 20.1(a): fails to proceed with the Works with due diligence or in a competent manner;
  2. (b)
    cl 20.1(b): unlawfully suspends the carrying out of the Works;
  3. (c)
    cl 20.1(d): is unable to complete the works;
  4. (d)
    cl 20.1(f): is otherwise in Substantial Breach of this Contract
  1. [39]
    By letter dated 17 October 2017, the solicitor for Mr Jobling asserted that the termination notice given by the Schofields was not a valid notice ‘… for the reasons contained in our email to you dated 8 August 2017, and because the Schofields ‘… have not provided particulars of the alleged Substantial Breaches that we requested in our email to you dated 8 August 2017.’
  2. [40]
    The email dated 8 August 2017 from Mr Jobling’s solicitor to the Schofields’ solicitor raised the following concerns about the Notice to Remedy Breach dated 24 July 2017 issued by the Schofields:

That the notice from the Schofields was not a valid notice because:

  1. (a)
    it was not given to our client in the manner prescribed;
  2. (b)
    it does not describe each alleged Substantial Breach; and
  3. (c)
    it does not state the Owners intention, as required by Clause 20.1(h); and

in respect of the purported breaches described:

  1. (a)
    what are the breaches relevant to clause 20.1(f)? You will appreciate that our client is unable to remedy breaches that are not properly described;
  2. (b)
    our client is able to complete the Works; and
  3. (c)
    our client has not failed to proceed with the Works with due diligence or in a competent manner.
  1. [41]
    Clause 20.1(h) of the contract specified that 10 business days must be allowed for the contractor, in this case Mr Jobling, to remedy the breach.[6] The Notice to Remedy Breach was issued by the Schofields on 3 October 2017 and the termination notice was issued on 17 October 2017.
  2. [42]
    By letter dated 20 October 2017 addressed to the Schofields’ solicitor, Mr Jobling’s solicitor asserted that the termination notice dated 17 October 2017 issued on behalf of the Schofields was ineffective because it was issued prior to the expiration of the 10 business day period allowed for remedy by Mr Jobling of the alleged breaches.
  3. [43]
    The Acts Interpretation Act 1954 (Qld) provides guidance concerning what 10 business days means. While this Act applies to legislation such as the QBCC Act, it can be a guide to the meaning the meaning of terms in contracts. The relevant provision is s 38(1) of the Act, which states:

If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—

(a) if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and

(b) in any other case—by including the day on which the purpose is to be fulfilled.

  1. [44]
    The provision as to notice in the contract deals with ‘days’ and not ‘clear days’, therefore par (a) does not apply, while par (b) does apply. Using this formulation, calculating the period allowed for remediation allowed excludes 4 October 2017, but includes 17 October 2017. Given that there are 4 non-business days in the relevant period, the Schofields had allowed Mr Jobling 9 days in which to remedy the alleged breach.
  2. [45]
    This conclusion is supported by Chitty on Contracts which says that:[7]

Where a person under an obligation to do an act has to do it on or before a specified day, he has the whole of that day to fulfil that obligation, viz until midnight.

Mr Jobling therefore had until midnight on 17 October 2017 to bring the job to practical completion and the Schofields’ solicitor’s letter, sent on 17 October 2017, purporting to terminate the contract was premature. Being an instrument that relied upon the earlier notice of intention to terminate dated 3 October 2017, by not allowing the period required to elapse before it purported to be effective, it was ineffective.

  1. [46]
    That does not, however, end the analysis because the issue of the importance of time in the contract and whether time can ever be or become of the essence in a domestic building contract such as this must be considered. Schedule 1B of the QBCC Act dealing with domestic building contracts imposes a statutory warranty in relation to time, that:[8]

The building contractor warrants that the subject work will be carried out with reasonable diligence.

  1. [47]
    Clause 8.3 of the contract says:

The Contractor must bring the Works to Practical Completion by the Date for Practical Completion.

While cl 10.1(d) of the contract states that the contractor will carry out the works:

with reasonable diligence.

  1. [48]
    Both the contract and the statute require completion to be carried out with reasonable diligence and, in the case of contract cl 8.3, after a specific interval. It is doubtful that this formulation as to obligations concerning time makes time the essence of this contract, although the absence of liquidated damages arising from the builder’s delay suggests otherwise.[9]
  2. [49]
    The instant contract is a divisible contract: the builder was to be, and was in fact, paid according to the completion of stages of the house. However, the owners, the Schofields, were contractually constrained from taking possession of the property and using it until practical completion had been reached by the builder and the contracted price paid in full by the owner.[10] The contract did not provide that time was the essence of the contract. Schedule 1B of the QBCC act dealing with domestic building contracts speaks only of reasonable diligence on this point, although the rigour required in the event that a builder seeks an extension of time suggests that time is, at least, important in the contract.[11]
  3. [50]
    Time can become the essence of a contract after it has commenced, as explained in Chitty on Contracts:[12]

Where time was not originally of the essence of a contract, but one party has been guilty of undue delay, the other party may give notice requiring the contract to be performed within a reasonable time. Notice can be served at the moment of breach: it is not necessary to wait until there has been an unreasonable delay by the party in breach before serving the notice.

  1. [51]
    The principal basis for this is approach may be found in the speech of Lord Parker of Waddington in Stickney v Keeble,[13] where his Lordship said:

The time limited by such a notice is sometimes referred to as having become, by virtue of the notice, of the essence of the contract. In considering whether the time so limited is a reasonable time the Court will consider all the circumstances of the case. No doubt what remains to be done at the date of the notice is of importance, but it is by no means the only relevant fact. The fact that the purchaser has continually been pressing for completion, or has before given similar notices which he has waived, or that it is specially important to him to obtain early completion, are equally relevant facts: Macbryde v Weekes (1856) 22 Beav 533. Indeed, the dominant principle has always been that equity will only grant specific performance if, under all the circumstances, it is just and equitable to do so. It would be unjust and inequitable to allow the vendor to put forward his own unnecessary delay in the face of the purchaser’s frequent requests for expedition as a ground for allowing him further time or as rendering the time limited by such a notice as that to which I have referred an unreasonable time.

  1. [52]
    This approach has been applied in Queensland in a case before the Queensland Court of Appeal: Elderslie Property Investments No 2 P/L v Dunn.[14]
  2. [53]
    While his Lordship in Stickney v Keeble was referring to a case involving the sale of land where time had not been the essence of the contract, the same approach applies here. That is, when an owner has made repeated complaints about the builder’s delay in completing construction and serves a demand for completion by a specific date, a failure to complete by that date may be sufficient failure of a term of the contract to give rise to a right of the aggrieved party to terminate the contract forthwith, taking account of relevant surrounding factors.
  3. [54]
    In the case here, the delay in completing the house to practical completion was a breach of a term[15] of the contract but for the Schofields’ indulgence in permitting practical completion to be extended on several occasions. Certainly the parties had agreed that practical completion would be extended to 29 September 2017 and that the Schofields could terminate the contract unilaterally if that date were not met. By this stage Mr Jobling had been given ample time to complete the job and ample notice of the consequences of failing to do so. If nothing more had to be considered, the Schofields were entitled to give Mr Jobling a notice of termination on 30 September 2017, but they did not do so. They indulged Mr Jobling a little more by allowing him additional time to complete the job. They did not issue a notice of intention to terminate until 3 October 2017.
  4. [55]
    Having issued a notice of intention to terminate under cl 20.1(h) of the contract the Schofields had to allow Mr Jobling 10 business days after he received the Schofields’ notice in which to remedy his breach. The Schofields’ solicitor issued a premature termination notice on Mr Jobling on 17 October 2017 that was, insofar as it purported to rely on the contract, ineffective as noted in paragraph [45].
  5. [56]
    However, applying the approach adopted in Stickney v Keeble, the issue of whether the termination notice dated 20 October 2017 has efficacy becomes: was the notice given by the Schofields’ solicitor effective, notwithstanding that it was defective as an instrument relying on compliance with the termination provisions in the contract?
  6. [57]
    The approach in Stickney v Keeble discussed above, and to be applied here is: when an owner has made repeated complaints about the builder’s delay in completing construction and serves a demand for completion by a specific date, a failure to complete by that date may be sufficient failure of a term of the contract to give rise to a right of the aggrieved party to terminate the contract forthwith, taking account of relevant surrounding factors.
  7. [58]
    In terms of this and the formulation stated in paragraph [53], the Schofields would be entitled to terminate the contract providing the following elements are satisfied:
    1. There had been repeated complaints by the Schofields about Mr Jobling’s delay in reaching practical completion; and
    2. There had been a demand served for completion by a specific date; and
    3. There was a failure to achieve practical completion by the date given; and
    4. It is appropriate, taking account of relevant surrounding factors, for the contract to be terminated.
  8. [59]
    As noted above, the Schofields’ solicitor had advised Mr Jobling on 30 August 2017: ‘If the works are not completed on or before 29 September 2017 our client will terminate the contract’ and, when they were not completed by that date, sent another letter on 3 October 2017 saying ‘… our client will terminate the contract in accordance with clause 20.2 without prejudice to any other rights or remedies they may have if Practical Completion is not reached on or before 17 October 2017’.
  9. [60]
    The Schofields advised Mr Jobling that they would terminate the contract by
    29 September 2017 unless it was completed. It was not completed by that date and, in fact, little progress was made between the date of the demand by the Schofields and 29 September 2017. But, in an attempt to have their house built, the Schofields granted the indulgence of a further extension of time to Mr Jobling.
  10. [61]
    Despite this indulgence of the Schofields, Mr Jobling did not, in fact, complete the job by 17 October 2017 nor, as it turns out, by the date of the hearing. By 17 October 2017 when the Schofields issued their notice terminating the contract Mr Jobling had been placed on notice about the Schofields’ concern about delays in practical completion on no fewer than five occasions: 21 July 2017, 24 July 2017,
    8 August 2017, 30 August 2017, and 3 October 2017.
  11. [62]
    Based on these facts I am satisfied that the Schofields had made repeated complaints about Mr Jobling’s delay in reaching practical completion, that the Schofields had made a demand for practical completion by 17 October 2017 from which they did not resile, and that, in fact, there was a failure to achieve practical completion by the date demanded.
  12. [63]
    Taking account of the number of occasions when the Schofields complained about the delay, the artifice Mr Jobling used in raising claims for extensions of time and variations late in the contract period and out of time, the fact that the job had not reached practical completion by 17 October 2017 despite the indulgence on this point granted by the Schofields, I find that the termination notice issued by the Schofields, through their solicitor, dated 17 October 2017 terminating the contract on and from that date was effective, based on the approach in Stickney v Keeble.
  13. [64]
    As an aside, I note that Mr Jobling gave the Schofields notice on 26 September 2017 that he had suspended work on the contract because, as he said, the Schofields were in substantial breach of the contract:

Your substantial breach is your failure to connect mains power to the site as required pursuant to the contract.

  1. [65]
    As I find in paragraph [81], infra, this claim is without substance. Mr Jobling’s purported reason for suspending work has no foundation and is not effective. It does not supersede the Schofields’ entitlement to terminate the contract on 17 October 2017.
  2. [66]
    I am satisfied that Mr Jobling’s conduct generally in his dealings with the Schofields could be characterised as dissembling. He attempted, as the contract neared termination, to create instances where he could claim fault concerning the conduct of the Schofields in an attempt to deflect criticism of, in particular, his delay in achieving practical completion.
  3. [67]
    If there were no further issues to address, I conclude that, on and from 17 October 2017, the contract between the Schofields and Mr Jobling was terminated. However, there remain the claims by Mr Jobling that delays to practical completion were caused, or substantially caused, by the conduct of the Schofields, which is considered below.

Were the notices served by the Schofields valid?

  1. [68]
    Before proceeding further I need to address the claim by Mr Jobling’s solicitor that there were defects in the notices given by the Schofields to Mr Jobling.
  2. [69]
    Mr Jobling’s solicitor in a letter dated 20 October 2017 to the Schofields’ solicitor reiterated the view that the termination of 17 October was invalid and of no effect because:
    1. (a)
      If the Schofields were relying on the notice dated 24 July 2017, then that notice was not a valid notice because:
      1. it was not given to our client in them manner prescribed;
      2. it does not describe each alleged Substantial Breach; and
      3. it does not state the Owners intention, as required by Clause 20.1(h); and
    2. (b)
      They further assert that the notice of 3 October 2017 was invalid because, despite the requirements under contract clause 20.1, it was not given:
      1. to the contractor [Mr Jobling] but to his solicitor; or
      2. in one of the methods specified in the contract, being by hand, registered post or facsimile transmission.
  3. [70]
    In purporting to terminate the contract on 17 October 2017 the Schofields said that they were relying on the notices given by them on 8 August 2017 and 3 October 2017 although, as identified above, the letter to Mr Jobling dated 30 August 2017 had also put Mr Jobling on notice concerning the requirement to finish the job by
    29 September 2017. Mr Jobling claimed the notices of 8 August 2017 and 3 October were invalid because of the concerns expressed in paragraph [68] above. In this regard, cl 20.1 required that ‘… the Owner may give a written notice to the Contractor by hand, registered post or facsimile transmission’. The relevant notice was sent using email by the Schofields’ solicitor to Mr Jobling’s solicitor.
  4. [71]
    The notice to remedy breach issued by the Schofields on 8 August 2017 was defective because of the concerns that were identified by Mr Jobling’s solicitor to which the Schofields’ solicitor did not respond and was, in any event, superseded by subsequent events. The Schofields cannot rely on this notice alone to terminate the contract, although it placed Mr Jobling on notice as to the valid concerns of the Schofields.
  5. [72]
    Turning to the notice to remedy breach issued by the Schofields on 3 October 2017, the only concerns expressed by Mr Jobling’s solicitor concerned the manner and form of service. However, a notice served on a legal practitioner who is on the record as acting for a client is good service on the client. The matter is put beyond dispute here by the statement made by Brendan Bathersby, a solicitor acting for Mr Jobling when, on 8 August 2017, he stated in an email to the Schofields’ solicitor, ‘Please note our interest in this matter and direct all future correspondence in favour of our client, to us’.
  6. [73]
    Mr Jobling did not complain that he did not receive the notice, but objected to the medium of service, saying that service by email was not one of the media allowed by cl 20.1. Such an argument is unmeritorious because the parties had engaged in email correspondence for some time without previous concern, while the use of email in this instance placed no party at a disadvantage. In any event, cl 23 of the contract puts the validity of email as a proper and allowed medium of correspondence in this case beyond doubt; cl 23.4(b) provides:

The parties agree that any written notice, or other document, to be given by a party under this contract may be given and received via facsimile transmission or email, or both.

  1. [74]
    In their letter dated 8 August 2017, Mr Jobling’s solicitors complained that the Schofields’ notice dated 24 July 2017 did not ‘… describe each alleged Substantial Breach.’ Mr Jobling’s solicitors in their letter dated 20 October 2017 did not similarly complain that the Schofields had failed to describe the alleged breach because, I am confident, it was evident that the breach alleged involved the substantial delay in achieving practical completion.
  2. [75]
    The claims by Mr Jobling, through his solicitor, that the notices issued to Mr Jobling by or on behalf of the Schofields were defective in the specific instances raised has no merit.

Mr Jobling’s claims

  1. [76]
    Based on his Statement of Evidence filed 3 October 2018, his notice to the Schofields dated 1 December 2017, and his testimony, Mr Jobling contended that the reasons for the delay in practical completion arose from the following causes:
    1. (a)
      The Schofields were not concerned by delays in the performance by Mr Jobling of the contract;
    2. (b)
      The Schofields failed to perform their obligations under the contract in a timely manner;
    3. (c)
      The Schofields failed to supply electricity to the site as they were required to do;
    4. (d)
      The Schofields failed to supply water to the site as they were required to do;
    5. (e)
      By their conduct the Schofields set aside the terms of the contract;
    6. (f)
      The Schofields failed to pay the bills rendered by Mr Jobling within the time frames required by the contract;
    7. (g)
      The Schofields led Mr Jobling to believe that ‘there was no issue as to lack of written notices’ required under the contract being given to the Schofields by Mr Jobling;
    8. (h)
      The Schofields interfered with the carrying out of the work;
    9. (i)
      The Schofields unlawfully entered the site;
    10. (j)
      The Schofields excluded Mr Jobling from the site; and
    11. (k)
      The Schofields engaged the subcontractors used by Mr Jobling directly in order to complete the construction.
  2. [77]
    These assertions by Mr Jobling are analysed because, if correct, they may affect the validity of the termination of the contract by the Schofields on 17 October 2017. Having addressed these contentions, there remains to be analysed the implications, if any, arising from the dealings between the parties after 17 October 2017, including Mr Jobling’s purported termination of the contract on 20 December 2017, and the effect these actions may have, if any, on the Schofields’ right to a remedy.
  3. [78]
    Mr Jobling’s eleven assertions (in clause [76] (a) to (k), above) concerning the conduct of the Schofields, and the effect their alleged conduct had in regard to the termination of the contract effective from 17 October 2017, are analysed below.

The Schofields were not concerned by delays in the performance by Mr Jobling of the contract

  1. [79]
    In fact there are numerous occasions when the Schofields raised concerns with Mr Jobling about his progress on this job. This is evident in messages between Mrs Schofield and Mr Jobling dating from as early as 15 December 2016; and again on 17 February 2017, 8 March 2017, 9 March 2017, 24 April 2017, communications during May 2017 involving the QBCC dispute resolution centre and the parties, and in communications between the Schofields’ solicitor and Mr Jobling during July 2017 and beyond which were noted above. There is no evidence that the Schofields were not concerned by delays in the contract; on the contrary, the evidence shows beyond doubt that they were concerned about delays almost from the date the work began.

The Schofields failed to perform their obligations under the contract in a timely manner

  1. [80]
    The principal obligation of the Schofields was to pay Mr Jobling. Apart from the last invoice, over which there appears to be some dispute, the Schofields paid each of
    Mr Jobling’s invoices. The Commonwealth Bank was financing the build and had to approve each payment. The contract required payment within 5 days of the invoice. Of the 5 invoices for which evidence is available they were paid, respectively, within 19 days, 16 days, 12 days, and 6 days, with the fifth paid 2 months later, at a time when the parties were in dispute. This is not evidence of a failure to meet their obligations, particularly with a financier involved. Mr Jobling referred to Appendices 15, 24 and 25 of his written submission to support this assertion in general terms. Appendix 15 was an SMS dated 16 March 2017 from the Schofields promising to supply certain details concerning the interior, without any expression of concern about delay mentioned by Mr Jobling; Appendix 24 was an SMS dated 27 December 2016 concerning the possibility of changing certain colours; and Appendix 25 was an exchange of SMS messages starting on 9 January 2017 in which Mr Jobling requested the Schofields to make an election as to cladding type. Mr Jobling sought full payment at fixing stage when 85% of the work had been completed. The financier declined to pay the claim in full or part, which led to some delay that was not attributable to the Schofields. I find no merit in this assertion by Mr Jobling.

The Schofields failed to supply electricity to the site as they were required to do

  1. [81]
    The Schofields had mains power connected to the site on 3 October 2017. Between 9 August 2016 and 3 October 2017 Mr Jobling appears to have made do with an alternative electrical power source such as the power extension cord provided by the Schofields for the purpose of assisting the construction. The fact that concern over the supply of electricity appears to have been raised by Mr Jobling for the first time after July 2017, at a time during which the construction had been progressing, albeit long delayed, is suggestive of him raising an issue in order to use it as an excuse rather than a genuine reason for any delay. The matter may be resolved by reference to the specification associated with the contract which states, on page 1, ‘Provision for site power: By Builder’. The ‘site’ is defined in the contract as meaning ‘… that part of the Land necessary to be occupied and used by the Contractor for the construction of the Works’. It is reasonable to conclude from this that Mr Jobling, not the Schofields, was obliged to ensure the availability of electricity needed by the builder during construction. The specification goes on to state, on page 1, ‘Provision for power to site: By Owner’. This should properly be read as obliging the Schofields as being responsible for the supply of permanent power to the site, which is a different thing, not being that required for the period of the build. In this way the contract made clear that the cost of providing permanent power to the site was to be met by the Schofields and not by the builder. On the balance of probabilities I believe these provisions are intended to be read in the way I have read them, so that the Schofields had no obligation to supply power to Mr Jobling during the course of construction. Even if this conclusion is wrong, the Schofields did, in fact supply site power by providing an extension cord and, further, any lack of electricity, if it occurred, caused no delay to the job. When asked at the hearing whether the lack of electricity and water caused any delays to the construction Mr Jobling replied, ‘Not directly, but they all add up’. I am satisfied, that the assertion by Mr Jobling that the Schofields failed to meet their contractual obligation to supply electricity to the site is without merit.

The Schofields failed to supply water to the site as they were required to do

  1. [82]
    As in the case of power, the Schofields, who lived close by to the building site, provided a hose for the use of Mr Jobling throughout the building period. Mr Jobling asserted that this was insufficient and did not meet his needs or the requirements of the contract. He suggested that his concern over the supply of water was evident from 11 March 2017, as evidenced from an SMS shown in Appendix 14 of his documents. But in this SMS Mr Jobling said to Mrs Schofield, in reference to the needs of the plasterers, ‘Can you put a garden hose over the fence for water for them’. In fact, as in the case of the supply of electricity, Mr Jobling only raised the supply of water as an issue after July 2017, again giving rise to a strong doubt that any alleged lack of water to site had caused him any inconvenience at all. And, as before, the specification associated with the contract declared the responsibilities to be, ‘Provision for site water: By Builder’, ‘Provision for water to site: By Owner’. Thus, on the balance of probabilities, it was Mr Jobling’s obligation to provide the water needed during the period of construction, not the Schofields’. Even if this conclusion is wrong, the Schofields provided site water for the benefit of Mr Jobling sufficient for him to complete the construction of the house as evidenced by his ability to rely on this during the period when he was building the house. As in the case of his complaint about the lack of electricity provided to site, I am satisfied that this assertion by Mr Jobling is also without merit.

By their conduct the Schofields set aside the terms of the contract

  1. [83]
    Mr Jobling has not provided details to support this broad assertion, nor was there anything in his testimony to support it, nor does he provide guidance as to when he suggests such a termination may have occurred. He appears to invite the Tribunal to agree with his assertion based on the whole of the evidence. However, taken as a whole the evidence disclosed that the Schofields conducted their dealings with
    Mr Jobling in a reasoned, polite, and civil manner, albeit with increasing frustration concerning the delay involved in completing the job. I am not satisfied that the conduct of the Schofields is such that they can be said to have set aside the terms of the contract apart from the occasions when they have, with reason and purpose, threatened and acted to terminate the contract. I am satisfied that this broad assertion by Mr Jobling is without merit.

The Schofields failed to pay the bills rendered by Mr Jobling within the time frames required by the contract

  1. [84]
    For the same reasons noted in paragraph [80] above, this assertion has no merit.

The Schofields led Mr Jobling to believe that ‘there was no issue as to lack of written notices’ required under the contract being given to the Schofields by Mr Jobling

  1. [85]
    Mr Jobling has not provided evidence to support this broad assertion nor the consequences that flow from it. The tenor of the relations and communications between the parties does not suggest that the Schofields were or would be satisfied with the informality that this assertion implies, and they do not appear to have encouraged Mr Jobling in such a belief. If Mr Jobling genuinely formed such a belief it is not consistent with the relationship between the parties. A degree of informality may commonly infect some of the correspondence and behaviour between parties to a building contract because of the need to maintain cordial relations in order to encourage progress. There is no justifiable reason for Mr Jobling to conclude that the Schofields intended or, objectively did, consent to dispensing with the formal requirements of the contract. This assertion is without merit.

The Schofields interfered with the carrying out of the work

  1. [86]
    Mr Jobling identified Appendices 5, 15, 21, 23, 24, and 25 of his written submission as evidence for this assertion. Appendix 5 comprises three documents: a note by apprentice carpenter Dylan Betts dated 1 November 2017; a letter dated 31 October 2017; and an email from a cabinetmaker dated 22 September 2017. The note by the apprentice carpenter said, ‘Whilst working at Vines Court the clients of the house which was undergoing construction would interfere with works and bad mouth the builder and ask for keys and take time out of everyone’s day which would hinder progression of the job’. The alleged conduct of the Schofields described in this note are so vague as to details and dates as to be of no evidentiary value. The letter from the plumber, insofar as it concerns alleged interference with the construction said, ‘I have worked at the above property and noted that the residents are living on site in a shed. The owner Russell was often home for long periods of time, he spent this time following myself and other trades while we worked complaining about the builder’. There is nothing in this letter to suggest that the Schofields interfered with the carrying out of the work, whether or not such alleged conduct by Mr Schofield may have been annoying. The email from the cabinetmaker advised Mr Jobling that, as a result of Schofields having told the cabinetmaker that ‘… lawyers are involved …’, the cabinetmaker was not confident that Mr Jobling could pay him, and that no further credit would be extended. None of this evidence is sufficient to justify a conclusion that the Schofields acted in a manner that could constitute interference with the work.
  2. [87]
    Appendix 15 is a brief SMS dated 16 March 2017 in which the Schofields advised Mr Jobling about their choice of internal finishings. This appears irrelevant to any claim of interference by the Schofields. Appendix 21 is an SMS dated 12 May 2017 from Mrs Schofield to Mr Jobling that, concerning delays in the work, stated, ‘This has taken a toll on my health stress wise so don’t expect me to be very friendly from now on – just want my home…’. This comment constitutes frustration, not interference in the work. Appendix 23 comprises 16 pages: 6 pages offering three quotes dated 23 January 2017 (2 quotes) and 28 January 2017 (1 quote) for an entry door, 3 pages of associated drawings, a one page email from the door manufacturer to Mr Jobling, a 2 page invoice dated 3 March 2017, and a further 4 pages of email correspondence in February and March 2017 concerning changes to the entry door. These documents disclose changes sough by the Schofields to the entry door and how this was handled between them, Mr Jobling, and the door manufacturer. There is nothing in the documents that suggests anything that would not be expected during a normal house-build. In his testimony Mr Jobling stated that the Schofields only made one change concerning selection of the door. If there had been concerns over the Schofields’ decision concerning the selection of an entry door, Mr Jobling could have been dealt with it by a claim for variation and an extension of time; it is not interference in the construction. Appendix 24 is an exchange of SMS dated 27 December 2016 in which Mrs Schofield asked, ‘… just thinking about window door colours – instead of woodland grey was thinking black – is it too late to change?’. This is not evidence of interference in the construction. Appendix 25 is an SMS exchange dated 9-13 January 2017 between the parties involving the selection of external cladding commencing with a request by Mr Jobling for the Schofields to make a selection. This is not evidence of interference in the construction. In summary, none of the evidence raised by Mr Jobling constituted an interference by the Schofields in the carrying out of the work by Mr Jobling.

The Schofields unlawfully entered the site

  1. [88]
    Mr Jobling’s evidence for this is in Appendix 16 of his documents. Appendix 16 is an email dated 3 November 2016 from the Schofields to Mr Jobling in which they state that they ‘… did a walk around yesterday …’ and listed some details concerning lighting and electrical that they wished to have done at the house. This document does not provide evidence of any unlawful accessing of the site by the Schofields, indeed, the conduct now complained of by Mr Jobling does not seem to have been of concern to him when it occurred. In his written statement dated 11 June 2018 Andrew Green, a carpenter subcontracted to Mr Jobling, stated that ‘At no time did I witness Simon Jobling try to prevent Russell or Kerry Schofield entering the job site …’. In his testimony at the hearing Mr Green confirmed the comment in his written statement that there were no barricades, safety signs or fences around the job site during the period when Mr Green was at the site, up to February 2017, and again in April 2017. There is no substantive evidence to support the assertion by
    Mr Jobling that the Schofields unlawfully entered the site, Mr Jobling did not appear to object to the alleged conduct, if it occurred, at the time, while there was no evidence of any consequences arising from the alleged conduct. This assertion by Mr Jobling is without merit.

The Schofields excluded Mr Jobling from the site

  1. [89]
    Mr Jobling has provided no evidence concerning the Schofields excluding him from the site before 17 October 2017 when they purported to terminate the contract. After that date the issue becomes irrelevant as the contract had been properly terminated.

The Schofields engaged the subcontractors used by Mr Jobling directly in order to complete the construction

  1. [90]
    The evidence of this occurring, arose on two occasions: when subcontractors required direct payment from the Schofields due to the subcontractors’ concern about the ability of Mr Jobling to pay them; and after negotiations concerning Mr Jobling completing the job had broken down in late 2017 when Mr Jobling purported to terminate the contract on 20 December 2017. Neither of these instances gives rise to any presumption of improper conduct by the Schofields, nor is there any evidence of any adverse consequences affecting Mr Jobling from this conduct when it occurred.
  2. [91]
    Based on this analysis I am satisfied that the evidence disclosed that the Schofields had not breached the contract or, if they had, that such breaches were trivial and had no substantive effect upon either party’s ability to perform their obligations and, further, that the Schofields did not contribute to the delay in any substantive form to Mr Jobling achieving practical completion.
  3. [92]
    It follows, therefore, that there is nothing in the conduct of the Schofields that permits me to conclude that they were responsible for the delay involved in completing the contract, certainly after 30 August 2017 when the parties had agreed to completion of the job by 29 September 2017 subject to any further allowable delays. It further follows that there is no reason to displace the conclusion that the Schofields properly terminated the contract on and from 17 October 2017.

Implications of dealings between the parties after 17 October 2017

  1. [93]
    In relation to the termination of the contract by law on 17 October 2017 the question remaining is: what are the implications, if any, of the dealings between the parties after 17 October 2017 and Mr Jobling’s purported termination of the contract on
    20 December 2017?
  2. [94]
    I concluded in paragraph [67] above that the contract had been lawfully and validly terminated by the Schofields on 17 October 2017 subject to examination of the claims by Mr Jobling concerning proper service of the notices giving rise to the termination, and whether the Schofields had contributed to the delay in practical completion or otherwise breached the contract.
  3. [95]
    I concluded in paragraph [75] that all notices had been properly served by the Schofields on Mr Jobling.
  4. [96]
    In paragraph [92] I concluded that the Schofields did not make any tangible contribution to the breach by Mr Jobling of the contract between the parties and I therefore concluded that the Schofields were lawfully entitled to terminate the contract, and properly did so, on 17 October 2017. I believe that this answers the first two concerns of the QBCC raised in its Internal Review.
  5. [97]
    There was additional difficulty for the QBCC in deciding the effect of the termination, and therefore the Schofields’ right to compensation, given the continuing dealings between the parties after 17 October 2017 and Mr Jobling’s purported termination on 21 December 2017.
  6. [98]
    The legal rule is that once a contract has been properly terminated it is at an end and, apart from secondary rights that may arise under its terms, it is defunct, it has no further effect, and it cannot be revived. In this case the proper and lawful termination of the contract by the Schofields had the effect of terminating the contract on and from 17 October 2017. Any subsequent dealings between the parties may give rise to a new contract, but the old contract cannot be revived. Any agreement among the parties to revive the terms of a terminated contract creates a new contract.
  7. [99]
    Neil and Chin explain this in relation to a unilateral termination:[16]

The common law principle is that, because giving a valid notice of termination is a unilateral act, it takes effect in accordance with its terms. This principle may be modified by statute. Where it applies, the common law principle means that notice does not depend for its effect on acceptance by the person to whom it is directed, and may not be unilaterally withdrawn once received. Nor can a second, and different, notice be given; the right to terminate a contract by the giving of notice, once exercised, is exhausted.

  1. [100]
    The proper view on the effect of reviving a contract is expressed in Carter on Contract where it is stated:[17]

Once the promisee has exercised a right to terminate and the parties have been discharged, the promisee cannot go back on the election. Neither party is permitted to reinstate the contractual obligations of the parties unilaterally. The parties may together reach an agreement for reinstatement, but the agreement involves the formation of a new contract.

  1. [101]
    The conclusion of Rich, Dixon and Evatt JJ in the High Court case of Newbon v City Mutual Life Assurance Society Ltd[18] is to the same effect as these learned authors.
  2. [102]
    The contract between the Schofields and Mr Jobling was properly and lawfully terminated by the Schofields on and from 17 October 2017. There may have been later dealings between the parties in an attempt to resolve their dispute, but the contract was at an end, and there is no evidence that the parties intended or did enter into a new contract for the purpose of completing the construction of the house. Even if they had entered into a new contract it did not and could not revive the original contract. For completeness I find that the purported termination of the contract by Mr Jobling on 20 December 2017 was redundant and of no effect.
  3. [103]
    I believe that these conclusions answer the last two concerns raised by the QBCC in its Internal Review in favour of the Schofields.

Decisions by the QBCC

  1. [104]
    The QBCC has made two decisions concerning the claim by the Schofields for compensation under the statutory insurance scheme:
    1. (a)
      The decision to deny the Schofields’ claim on 1 December 2017; and
    2. (b)
      The decision of the Internal Review on 25 January 2018 to deny the Schofields’ claim.
  2. [105]
    For the elimination of doubt, each of these two decisions is hereby set aside.

Decision

  1. [106]
    Section 24(1) of the QCAT Act says that in a proceeding for a review of a reviewable decision, the tribunal may:
  1. (a)
    confirm or amend the decision; or
  2. (b)
    set aside the decision and substitute its own decision; or
  3. (c)
    set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
  1. [107]
    Relying on the power given in s 24(1)(b) and (c) the Tribunal makes the following decisions in respect of this application to review:
    1. (a)
      The decisions of the First Respondent to disallow the claim of the Applicants under the statutory insurance scheme are set aside; and
    2. (b)
      It is declared that the contract was properly terminated by the Applicants on 17 October 2017.

Costs

  1. [108]
    The parties made no submissions at the hearing in regard to costs.
  2. [109]
    The parties may make submissions concerning costs in this matter within 14 days of publication of this decision.
  3. [110]
    If no party makes a submission as to costs within 14 days of publication of this decision no costs order will be made and each party is to bear its own costs in relation to this matter.

Footnotes

[1]QBCC Act 1999, Schedule 1B, s 1, definition of practical completion.

[2]Contract cl 17.1.

[3]Noted in the QBCC letter as 21 July 2017.

[4]Variation Document number 1, dated 4 May 2017, concerned agreed variations requested by the Schofields on 3 October 2016 (although emails dated 6 July 2017 between the Schofields and Mr Jobling place this date as 28 April 2017) that, apart from the failure by Mr Jobling to issue the notice within the required 5 business days, appears in order. The additional $8,523.00 involved in this variation was paid by the Schofields to Mr Jobling on 6 July 2017.

[5]In regard to the consequences of the alleged failure by the Schofields to supply electricity to site, this is considered elsewhere in this decision: see paragraphs [31] and 0.

[6]QBCC Act, Schedule 1B, s 42 prescribes the same interval.

[7]Chitty on Contracts (Thomson Reuters, 33rd edition, volume 1, 2018) par 21-023, p 1604.

[8]QBCC Act, Schedule 1B, s 25.

[9]Contract, Item 18.

[10]Contract, cl 17.7, 17.8.

[11]QBCC Act Schedule 1B, s 42.

[12]Chitty on Contracts (Thomson Reuters, 33rd edition, volume 1, 2018) par 21-014, p 1597.

[13][1915] AC 386.

[14][2008] QCA 158.

[15]Indeed, it may be the breach of a condition of the contract, but this point does not need to be analysed at this time.

[16]Neil, I and Chin, D, The Modern Contract of Employment (LawBook Co, Sydney, 2nd ed, 2017) [10.71].

[17]J W Carter, LexisNexis, Carter on Contract (at 9 November 2018) [38.020].

[18]Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723, 733.

Close

Editorial Notes

  • Published Case Name:

    Russell & Kerrie Schofield v QBCC & Simon Jobling T/A S.A.J Constructions

  • Shortened Case Name:

    Schofield v QBCC & Anor

  • MNC:

    [2019] QCAT 73

  • Court:

    QCAT

  • Judge(s):

    Member Dr Collier

  • Date:

    15 Mar 2019

Appeal Status

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

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