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Ingles v Paul Bongioletti Homes Pty Ltd[2022] QCAT 24

Ingles v Paul Bongioletti Homes Pty Ltd[2022] QCAT 24

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ingles v Paul Bongioletti Homes Pty Ltd [2022] QCAT 24

PARTIES:

Roslyn Ann ingles

(applicant)

v

paul bongioletti homes pty ltd

(respondent)

APPLICATION NO/S:

BDL097-19

MATTER TYPE:

Building matters

DELIVERED ON:

25 January 2022

HEARING DATES:

29 October 2021

 

26 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

  1. Roslyn Ann Ingles must complete the following work at her cost, to an extent sufficient to enable completion of the contract works as varied:
    1. (a)
      the connection of electricity and telecommunications to 8 Petaluma Court, Gayndah (the Property); and
    2. (b)
      installation of electricity and air conditioning at the house constructed at the Property.
  2. Paul Bongioletti Homes Pty Ltd must co-operate with Roslyn Ann Ingles to enable compliance by her with the Tribunal’s Order, including by provision of keys and access to the Property.
  3. Roslyn Ann Ingles must advise Paul Bongioletti Homes Pty Ltd in writing when the works the subject of the Tribunal’s Order have been completed.
  4. Paul Bongioletti Homes Pty Ltd must complete the contract works (including the external works set out in the special conditions to the contract) in accordance with the terms of the contract, as varied, between it and Roslyn Ann Ingles dated 20 December 2014.
  5. Paul Bongioletti Homes Pty Ltd must commence work to complete the contract works at the Property within a reasonable time after receipt of advice from Roslyn Ann Ingles that the works to be undertaken by her are complete, but in any event no later than three months after receipt of the advice.
  6. Paul Bongioletti Homes Pty Ltd must complete the contract works with reasonable diligence.
  7. Upon practical completion and in accordance with the terms of the contract dated 20 December 2014, as varied, Roslyn Ann Ingles must pay the remaining progress payment of $9,372.00.
  8. Paul Bongioletti Homes Pty Ltd must pay to Roslyn Ann Ingles the sum of $33,000.00 for liquidated damages within 21 days of date of this Order.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – REPUDIATION – whether contract varied as to payment of deposit – builder estopped from denying variation – whether either party in breach – whether builder repudiated contract – affirmation of contract – specific performance of contract

Domestic Building Contracts Act 2000 (Qld)

Queensland Building and Construction Commission and Other Legislation Amendment Act 2014, s 62

Queensland Building and Construction Commission Act 1991 (Qld), s 77, s 77(2)

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Kennedy v Collings Construction Co Pty Ltd (1989) 7 BCL 25

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

Luxton v Vines (1952) 85 CLR 352

Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570

Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151

Saunders v Roberts [2016] QCATA 145

Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251

APPEARANCES &

REPRESENTATION:

 
 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The applicant Ms Ingles entered into a written contract with Paul Bongioletti Homes Pty Ltd (PBH), dated 20 December 2014 for the construction of a low set dwelling at 8 Petaluma Court, Gayndah. Work commenced in June 2016 and remains incomplete.
  2. [2]
    Ms Ingles case is that the contract price inclusive of GST was $220,000.00, such amount to be partially satisfied by 44,000 trade dollars to a value of $44,000.00. Ms Ingles says that the contract was varied to her credit in an amount of $35,378 and that she has paid the sum of $187,000.00 to PBH.
  3. [3]
    Ms Ingles complains that PBH is in breach of its contract with her in the following respects:
    1. (a)
      the house is incomplete more than 6 years after the contract was entered;
    2. (b)
      PBH did not have a current permit to build the house;
    3. (c)
      building approval lapsed as at June 2018;
    4. (d)
      no certifier’s inspections were obtained at each stage of the build;
    5. (e)
      the certifier could not inspect or certify the works, so that an engineering inspection is required to obtain certification;
    6. (f)
      the building is unlikely to comply with the current building code;
    7. (g)
      the house frame has been affected by being left without sufficient covering for many months;
    8. (h)
      incorrect timber was used for the frame;
    9. (i)
      9 years warranty which would otherwise have been given by the certifier will not be given unless an engineer inspects the slab and frame and confirms compliance;
    10. (j)
      the certified plan has not been followed resulting in the concreter installing pipes in the wrong places;
    11. (k)
      the certifier has said that it will not accept the bathroom, laundry and toilet as they are not in accordance with the certified plan;
    12. (l)
      the wall between the lounge and media room is incorrect and not as per the certified plans;
    13. (m)
      building insurance taken out by PBH was for an incorrect and lower amount than required;
    14. (n)
      due to the length of the build, many of the materials have been subjected to weather, damaged and the premises is in a derelict and unliveable unfinished state.
  4. [4]
    It is alleged that the following work is incomplete:
    1. (a)
      plumbing;
    2. (b)
      electrical;
    3. (c)
      flyscreens to windows and sliding doors;
    4. (d)
      sarking in the roof;
    5. (e)
      driveway;
    6. (f)
      retaining wall on driveway side;
    7. (g)
      turf and landscaping;
    8. (h)
      clothes line;
    9. (i)
      3 bay garage with lighting and power;
    10. (j)
      letter box;
    11. (k)
      fencing;
    12. (l)
      tv antenna;
    13. (m)
      repairs to concrete defects;
    14. (n)
      house to be cleaned.
  5. [5]
    At the hearing of the matter and in her closing submissions Ms Ingles withdrew a complaint in relation to unauthorised variations. Ms Ingles’ statement refers to unauthorised variations related to: ceiling height, the patio not being steel line manufactured and being a lower height than appears on the plan, the position of the laundry and WC and the size of the bathroom being altered from the plan, removal of a wall and double doors in the media room.[1]
  6. [6]
    Ms Ingles has not taken any formal step to terminate the contract.
  7. [7]
    Ms Ingles claims the following relief in her closing submissions:
    1. (a)
      an order that the respondent builder complete the dwelling in accordance with the Building code and provide all necessary certifications within 2 months of a Tribunal order. Completion to be at the respondent’s cost;
    2. (b)
      in the event of failure to comply with an order for completion, the respondent to pay the sum of $151,420.00 damages for loss.
  8. [8]
    The sum of $151,420.00 is calculated by reference to:
    1. (a)
      late completion damages calculated at $50.00 per day to the date of judgment. As at the date of Ms Ingles submissions her claim is based on 1,582 days late completion at $50.00 per day in an amount of $79,100.00; and
    2. (b)
      lost rental in an amount of $72,320.00
  9. [9]
    Evidence on behalf of PBH was given by Mr Bongioletti, a Director of PBH.
  10. [10]
    PBH alleges that the contract with Ms Ingles was varied to credit her with commission owing with respect to a different matter and that she was refunded a sum for flooring to be undertaken by Ms Ingles. PBH says that the varied contract price was $187,000.00 and that it has been paid $108,000.00.
  11. [11]
    PBH does not give Ms Ingles any credit for trade dollars allegedly paid to it in an amount of $44,000.00 and denies that any part of the contract price was to be paid in trade dollars. However, credit for $44,000.00 was given as against the deposit, base stage and part of the frame stage of the contract.
  12. [12]
    As to the damages sought by the applicant it is submitted that the applicant cannot claim both late completion damages and loss of rent as late completion damages are intended to cover losses such as lost rental. In any event PBH denies Ms Ingles is entitled to any damages at all.
  13. [13]
    PBH submits that it is able to complete the building works provided the sum of $44,000.00 and remaining progress payments under the contract are paid and a varied scope of works is entered into taking into account price increases on supplies and contractors since the commencement of the proceedings.
  14. [14]
    PBH submits that the Tribunal can find that the applicant did not pay the deposit pursuant to the contract and therefore the contract is terminated with no order as to damages. I note that PBH has not sought to formally terminate the contract.

Jurisdiction

  1. [15]
    I am satisfied that the Tribunal has jurisdiction to determine the dispute between the parties.[2]

Issue for determination

  1. [16]
    The following issues are raised for determination:
    1. (a)
      What are the relevant terms of the contract? In particular is there any agreement that the sum of $44,000.00 was to be paid in trade dollars in satisfaction of part of the contract price.
    2. (b)
      What money has fallen due under the contract and what money has been paid?
    3. (c)
      Is either party in breach of contract?
    4. (d)
      Is the contract at an end?
    5. (e)
      What remedies are available to the applicant?

Further evidence

  1. [17]
    Upon consideration of this matter after the hearing it became apparent that there was insufficient evidence before me on which to make a determination. I directed the parties to file further affidavits addressing matters raised in Directions made on 30 September 2021.
  2. [18]
    Mr Bongioletti provided an affidavit sworn 12 October 2021.[3] Ms Ingles provided an affidavit sworn 28 October 2021.[4]
  3. [19]
    A further hearing was held on 26 November 2021 for the purpose of enabling cross examination by the parties with respect to the new evidence.

The contract

  1. [20]
    The contract entered into between the parties is the HIA QC1 2010 New Home Construction Contract comprising 5 Schedules and General Conditions. Other contract documents specifically noted in the contract are Plans and Engineering and Soil test. I note a handwritten annotation to Schedule 4, Prime cost and provisional sum items and allowance, which says: “Refer to attached specifications”. The specifications include a list of Provisional Cost, or ‘PC', items and a building schedule. On the basis of the annotation, I am prepared to find that the specification list of PC items and the building schedule forms part of the contract.
  2. [21]
    The contract price is $220,000 inclusive of GST to be paid by a series of progress payments set out in Schedule 2.
  3. [22]
    Special Conditions in Schedule 5 provides for an external works allowance of $25,000.00 (inclusive of GST) to cover a shed to which an estimated cost has been given and turf, landscaping, fencing, letterbox, miscellaneous and clothesline at various costs. Slab classification is noted as “M class”.
  4. [23]
    Mr Bongioletti says that the external works form part of the contract works and although an allowance for the cost of the work is allocated it nevertheless forms part of the original contract price of $220,000.00. His evidence is that it was intended the sum of $25,000.00 could be spent as Ms Ingles wished, not necessarily for a set list of tasks or items.
  5. [24]
    Ms Ingles says that she expected to receive all the items listed as part of the contract price. That is not inconsistent with what PBH agreed to provide, except that there is no need for alternative works to be requested. I find that external works to a value of $25,000.00 (inclusive of GST) form part of the contract works including as set out in the special condition a 9 x 6 metre shed to an estimated value of $13,750.00, turf and landscaping to an estimated value of $6,000.00, and fencing, letterbox, and clothesline to the value of the balance.
  6. [25]
    Schedule 1 provides that the start date is two weeks after Council approval of plans. The Building period is 125 days, subject to clause 3 (completion and progress) and clause 16 (delays and extensions of time).
  7. [26]
    Late completion damages are set by default at $50 per day.

Was there any agreement that part of the contract sum would be paid in trade dollars?

  1. [27]
    Exhibit 4 in the proceedings is Public Ruling DA501.2.1: Treatment of barter or trade dollars, issued by the Commissioner of State Revenue on 20 August 2009. The Ruling explains the nature of trade dollars. Trade dollars are used in place of cash where members of a countertrade organisation accept payment for goods or services in trade dollars.
  2. [28]
    The ruling provides that trade dollars are not legal tender and can only be traded with other member businesses.  They are not redeemable through the trade exchange for cash. The rules of the countertrade organisation will specify a rate for converting trade dollars into Australian dollar equivalents. The Ruling provides that generally, one trade dollar equals one Australian dollar. The Ruling notes that the Australian Taxation Office applies a conversion rate based on the fair market value of goods or services. Transactions using trade dollars are dutiable and income received in trade dollars is subject to taxation.
  3. [29]
    Ms Ingles evidence is that on 20 December 2014, it was agreed between her and Mr Bongioletti, that 20% of the contract would be paid in trade dollars in an amount of $44,000.00. Ms Ingles refers to that sum as a deposit.
  4. [30]
    Mr Bongioletti denies that there was any discussion pre-contract about use of barter dollars or trade dollars. However, it became apparent from Mr Bongioletti’s further affidavit, and his evidence on the last hearing day, that Mr Bongioletti agreed the contract was varied so that a deposit of $44,000.00 would be paid by Ms Ingles and the sum of $44,000.00 would be and was in fact offset against progress payments under the contract.[5]
  5. [31]
    Ms Ingles evidence, not refuted by Mr Bongioletti, is that a 20% deposit amounting to $44,000.00 was agreed to be paid in advance to cover the deposit, base and part of the frame stage of the progress payments under the contract, with the result that the frame stage progress payment was adjusted back to $22,000.00.
  6. [32]
    The point of contention between the parties is whether the agreed payment of $44,000.00 would be paid in trade dollars.
  7. [33]
    As evidence of the alleged agreement Ms Ingles relies upon the following matters.

Receipt for $44,000.00

  1. [34]
    Ms Ingles relies upon a receipt from PBH, dated 20 December 2014, signed by Mr Bongioletti for the sum of $44,000.00 inclusive of GST. The receipt bears a handwritten notation that the receipt is: “re 8 Petaluma Gayndah”.[6]
  2. [35]
    Ms Ingles says that the receipt is a receipt for 44,000 trade dollars.
  3. [36]
    Mr Bongioletti’s evidence is that the receipt was provided prior to any money being received by PBH. He says that Ms Ingles told him the transfer was coming and that she needed the receipt for her financing bank, so she could prove her 20% cash deposit to the Bank. He says that he issued the receipt pursuant to Ms Ingles request and the money never arrived thereafter.
  4. [37]
    Ms Ingles confirmed in evidence at the hearing that provision of a receipt by PBH enabled her to get a loan.
  5. [38]
    Ms Ingles’ evidence is that she informed her finance broker that consideration for the deposit under the contract was provided in trade dollars and she was informed that did not matter so long as there was evidence of payment by a receipt.
  6. [39]
    I note from the documents produced by the ANZ Bank pursuant to a Notice to Produce that Ms Ingles obtained a loan stated to be to refinance land and for construction, in an amount of $228,000.00 on 9 February 2015. The valuer’s report shows the purchase price of the land on 10 November 2014 as $64,000.00.

B2B Barter cheque

  1. [40]
    As evidence that the alleged agreement with PBH was carried into effect, Ms Ingles relies upon a copy of a B2B Barter cheque in favour of the “Seller” Paul Bongioletti Homes Pty Ltd for an amount of 44,000 B2B barter dollars from the “Buyer” Coast 2 Coast Property Sales. The Cheque is signed by Ms Ingles. The cheque is dated 20 December 2014.  The cheque bears the following notation:

All transactions are subject to the trading rules of B2B Barter Pty Ltd…

Please mail cheque within 14 days to B2B Barter PO Box 1670 Sunshine Plaza…[7]

  1. [41]
    In cross examination it was put to Ms Ingles that B2B Barter did not exist prior to 2016, yet the B2B Barter cheque bears the date 20 December 2014. Ms Ingles said that as at 20 December 2014 another trade organisation Empire Trade was used for trade dollars however it went into liquidation and as a result a fresh cheque was drawn with B2B Barter. Ms Ingles said that when work started, she gave Mr Bongioletti a new cheque. The process from that point was that the trade dollars were held in a trust account until PBH transferred the trade dollars into PBH’s account.
  2. [42]
    Ms Ingles’ evidence is that on 17 November 2016 she discovered that the deposit had not been banked by PBH and it sat in the holding account of the barter provider. She says that she took active steps to ensure the deposit continued to be held by the provider to ensure that the monies would be available for PBH when it chose to bank the monies. As at the date of Ms Ingles statement dated 3 April 2020, she notes that PBH had not banked the trade dollars to its account.
  3. [43]
    Mr Bongioletti’s evidence is that he had never seen the cheque in question until it was provided to his solicitor as part of the proceedings.
  4. [44]
    PBH’s submission is that Ms Ingles’ explanation for the B2B Barter cheque dated 20 December 2014 is not clear, and that the Tribunal can infer Ms Ingles has misdated the cheque and that the credibility of all her evidence is called into question.

B2B Barter Tax Invoice/Statement

  1. [45]
    Ms Ingles also relies on a B2B Barter Tax Invoice/Statement dated 17 November 2016 for Roslyn Ann Ingles Coast 2 Coast Property Sales, showing a year to date trade volume of $100,956.70, authorisations of -$95,000.00 and spending available of $5,956.70. Under the heading “Authorisations” are two references. Both bear the date 17 November 2016 and refer to the Member - Paul Bongioletti Homes Pty Ltd. The first purported transaction is noted as “Deposit Gympie” and is recorded as a purchase of $51,000.00. The second purported transaction is noted as “Deposit Gayndah” and is recorded as a purchase of $44,000.00.
  2. [46]
    PBH’s submissions are that the statement only shows the amount declared in 2016. It is said the evidence of the applicant as to how this occurred ought be dismissed as unreliable.  The inference to be drawn from the evidence is that the B2B Barter statement notes a date in 2016 because B2B Barter was not in existence at the time when the applicant said she paid the 44,000 trade dollars to PBH in 2014.
  3. [47]
    Mr Bongioletti’s evidence is that PBH was a member of B2B Barter and prior to that Empire Trade. However, he said that PBH ceased paying fees to remove themselves as a member and that occurred a couple of years ago. I understand that to mean sometime in late 2018.

Conduct

  1. [48]
    Ms Ingles submits that PBH commenced the build having received trade dollars. It is submitted that there is no evidence put to the Tribunal that he disputed trade dollars as part of the contract, prior to Mr Bongioletti’s affidavit sworn 10 June 2020.
  2. [49]
    Mr Bongioletti’s evidence is that he had not received any money (or even trade dollars) from Ms Ingles when he provided the receipt on 20 November 2014.
  3. [50]
    When asked in cross examination why he started and continued the house if he had an issue with trade dollars, Mr Bongioletti said that he wanted to minimize the stress to Ms Ingles and Ms Watson. He said that he was prepared to make no money and to do a variation at the end to mitigate cost and the time frame of the job. Mr Bongioletti’s evidence is also that in the course of construction changes were made which mitigated cost, such as changing the ceiling height.
  4. [51]
    During the hearing Mr Bongioletti was asked why the house had not been completed. His evidence is that if trade dollars had value, he would have been able to complete the job. He said if the $44,000.00 had value the parties would not be here today.

Prior course of dealings

  1. [52]
    Ms Ingles submits that both parties had experience of using trade dollars and that it is not credible for Mr Bongioletti to say in his evidence in chief that at the time he had little or no understanding of trade dollars.
  2. [53]
    Ms Ingles relies on an email dated 8 November 2014 which the applicant submits records an offer by PBH to build a home for the applicant for the sum of $315,000.00, $71,000.00 trade inclusive. The email was not in evidence before me. The respondent did not acknowledge the email when it was put to him in cross-examination. I do not rely on the alleged email in my consideration of the matter.
  3. [54]
    Ms Ingles submits that numerous contracts were entered into by PBH over the past seven years where PB used trade dollars, including Bartercard, Empire, B2B trade dollars.
  4. [55]
    Ms Ingles refers specifically to Exhibit 3, and in particular a Deed of Agreement: B2B Trade Sale between Karam Boutique Residential and PBH. The Deed of Agreement forming part of Exhibit 3 is undated however it refers to a contract for the purchase of lot 30 in a development known as Repose on Breton at Coopers Plains. The Deed provides that PBH will pay to the seller Karam Boutique Residential, B2B trade dollars (said to mean trade exchange vouchers issued by B2B Trade Exchange or its assigns) as the deposit of $46,800.00 and further payment of the balance in B2B trade dollars in an amount of $46,800.00. By reference to the Form 8 relating to the purchase that transaction occurred on 10 November 2017. Exhibit 3 also includes a copy of a Property Agents and Motor Dealers Act 2000 (Qld) Trust Account Receipt dated 10 November 2017 issued by C2C Property Sales (Roz Ingles) in the sum of $46,800.00 as a 10% deposit on Lot 30, Repose on Breton.
  5. [56]
    Mr Bongioletti says that the Repose on Breton contract did not go ahead.
  6. [57]
    PBH’s submissions are that evidence PBH has been involved in “trade deals” previously indicates that if trade was part of the contract in question there would be a separate trade deed signed by all parties as revealed by the Repose contract. Further, there is no reason why a special condition could not be contained in the contract whereby the purchase price is varied to include a trade. It is said that on balance it is unlikely the contract had any term varied to include trade dollars.
  7. [58]
    Ms Ingles evidence is that she has dealt with PBH on a number of occasions over the past ten years and it has been standard practice for Mr Bongioletti to take B2B trade dollars in deals. Ms Ingles says that in 2013 she sold, as agent, ten of PBH’s units in Bundaberg with $605,000.00 B2B trade included in the agreement.
  8. [59]
    Ms Ingles relies on the B2B Barter Statement, annexure B of Exhibit 2 which refers to PBH as a member of that countertrade organisation.
  9. [60]
    PBH’s submissions are that it admits that trade dollars were used on the Walker Street project, which was well prior to the contract now in dispute, however as those trade dollars were of no practical use to PBH the contracts entered into with Repose were simply a way for PBH to try and recoup some loss by using trade dollars he was required to accept on the Walker Street project. Mr Bongioletti’s evidence is that PBH withdrew its intention to use trade dollars in that investment because no credible banker would accept trade dollars. At this time, he received accounting advice to the effect that trade dollars had no economic value, so he wiped them from his balance sheet.
  10. [61]
    Ms Ingles evidence is that PBH had previously advertised using trade dollars and that he advertised the use of trade dollars in respect to the Walker Street project in Bundaberg. Ms Ingles relies on Mr Bongioletti’s evidence at the hearing that he discussed trade dollars with his accountant concerning the Walker Street project. Mr Bongioletti’s evidence is that he did not cash in any barter dollars from the Walker Street project.
  11. [62]
    Mr Bongioletti’s evidence is that he is not aware of any trade contractors who accept trade dollars and that trade dollars have no value to him.  His evidence is also that if he receipted trade dollars, he would be liable to pay tax in Australian dollars, despite the fact that he could not spend the trade dollars within the building industry in Bundaberg. Mr Bongioletti says that there was no market for trade dollars in regional Queensland. PBH submits that in these circumstances it would be entirely unfathomable to consider that a builder would agree to accept nearly one quarter of a contract price by way of a trade for something that he cannot use to fund either labour or supplies for the construction.
  12. [63]
    It is said by Ms Ingles that PBH accepted trade dollars in construction of a house for Sharon Watson in Gayndah.
  13. [64]
    Ms Watson’s contract is attached to Mr Bongioletti’s statement.[8] The contract does not refer to trade dollars, nor has a Deed of Agreement for use of trade dollars been attached to, or referred to, in the contract.
  14. [65]
    At the hearing Mr Bongioletti denied the assertion. Ms Watson did not give evidence.
  15. [66]
    It is submitted by Ms Ingles that PBH understood and was knowledgeable of trade dollars and accepted at the time of entering into the contract that trade dollars would constitute part of the consideration. PBH says that there is no evidence that the original agreement included trade dollars.

Findings

  1. [67]
    The problem for both parties is that the alleged variation to the written contract was not put into writing. It is necessary for me to draw an inference on the facts before me as to what was the most likely agreement between the parties.
  2. [68]
    The facts which suggest there was no agreement that the sum of $44,000.00 would be paid in trade dollars are that:
    1. (a)
      the written contract does not anywhere refer to trade dollars or provide for payment of any part of the contract sum by trade dollars. The deposit and progress payments required under the contract are expressed by reference to Australian currency.
    2. (b)
      The form of contract used by the parties is a formal written document signed by both parties. The contract is dated 20 December 2014. The contract allows for special conditions and special conditions were in fact endorsed on the contract. No special condition was inserted in relation to part payment of the contract price by trade dollars. The contract appears complete on its face.
    3. (c)
      No Deed of Agreement similar to the Deed used in the Repose on Breton transaction was entered into.
    4. (d)
      The contract itself provides at clause 37.6 that except as provided at law or in equity or elsewhere in the contract, none of the provisions of the contract may be varied, waived, discharged or released, except with the prior written consent of the parties. There is no evidence of any written consent.
    5. (e)
      Ms Ingles has not given particulars of the agreement with Mr Bongioletti on behalf of PBH about the use of trade dollars including what was said in that discussion.  An oral agreement was not raised in Ms Ingles’ material. That assertion arose at the hearing. Ms Ingles statement of evidence refers to the written contract providing that the deposit being the sum of $44,000.00 was to be paid in B2B Barter dollars.[9] Patently that is not correct.
    6. (f)
      The receipt relied upon by Ms Ingles as evidence of an acknowledgement of receipt by PBH of 44,000 trade dollars on 20 December 2014 in purported satisfaction of the agreement, does not refer to trade dollars. The amount on the receipt is referred to by reference to the symbol “$” which I find to be a reference to Australian dollars because it is not prefaced with the word “trade”.[10]
  3. [69]
    There are countervailing facts and evidence on which I rely, and I make the following findings of fact:
    1. (a)
      Mr Bongioletti was a member of Empire Trade in 2014 and later of B2B Barter. He acknowledges that he used trade dollars in his business.
    2. (b)
      The sum of 44,000 trade dollars was deposited with BSB Barter on 17 November 2016 available to be drawn upon by PBH.
    3. (c)
      One trade dollar is treated as one Australian dollar by users of trade dollars.
    4. (d)
      Mr Bongioletti commenced work without PBH issuing an invoice for the deposit in accordance with the payment schedule in the contract, nor did PBH issue an invoice for the sum of $44,000.00 said by both Mr Bongioletti and Ms Ingles to be the varied deposit under the contract.
    5. (e)
      The sum of $44,000.00 was accounted for in the payments made under the contract.
    6. (f)
      On 15 March 2018 PBH entered into a written variation and in compliance with a request on 16 March 2018, a representative of PBH handwrote on the variation document for the purpose of submission to Ms Ingles bank: “Adjust contract price – cost of build from $220,000 – to $196,372 completion payment was $33k now to be $9,372 plus fixout payment still to be $44k to complet (sic) job.” The variation does not indicate any moneys remain owing for the deposit or completed contract works.
    7. (g)
      The first tax invoice issued by PBH was dated 28 July 2017 in an amount of $17,000.00. By reference to the schedule of progress payments in the contract, $17,000.00 can be arrived at in the following way and is consistent with the evidence of Ms Ingles:

Deposit $11,000.00

Base stage $22,000.00

Frame stage $33,000.00

$66,000.00

Less varied Deposit $44,000.00

$22,000.00

Less agreed adjustment

for moneys owed by PBH

to Ms Ingles $5,000.00

Amount owing  $17,000.00

  1. (h)
    Mr Bongioletti gave evidence that once he received accounting advice that trade dollars were of no economic value, he wiped them from his balance sheet. That advice appears to have been received around the time of the Repose contract in late 2017 and is consistent with Mr Bongioletti’s evidence of withdrawing as a member of B2B Barter in approximately 2018. The evidence is consistent with a change in position in relation to the value and use of trade dollars in the PBH business, in contrast to an earlier practice at the time the contract was entered and work commenced.
  2. (i)
    When asked at the hearing why the contract works have not been completed, Mr Bongioletti said that if the trade dollars had value, he would have been able to complete the job and that if the $44,000.00 had value we would not be here today. That evidence is consistent with Mr Bongioletti being aware of a deposit of 44,000 trade dollars at the commencement of work under the contract, but that the trade dollars subsequently ceased to have value.
  1. [70]
    I consider the countervailing facts and evidence to be compelling.
  2. [71]
    In a commercial context it is improbable that a builder would start work without payment of a deposit and continue to perform work through the base stage and the frame stage without any funds either in Australian dollars or trade dollars, if he was not satisfied that funds in some form were available.  The fact that there is no evidence of an invoice or a demand for payment is consistent with a finding that trade dollars were available to PBH. PBH has taken the sum of $44,000.00 into account when invoicing Ms Ingles. There is no reason to believe that he would do so unless he was satisfied that he had access to that amount.
  3. [72]
    I consider that I am able to draw an inference in this case based on the facts found by me. What is required for the drawing of an inference is discussed by the High Court in Bradshaw v McEwans Pty Ltd to the effect that an inference may be drawn if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought.  The circumstances appearing in the evidence must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.[11]
  4. [73]
    I consider that there is a probable explanation as to why the contract did not refer to the payment of any part of the contract sum by trade dollars.  The material provided by the ANZ Bank included a copy of the contract. It is likely the contract was not amended to reflect payment of a significant portion of the contract price in trade dollars because the Bank was provided with a receipt which suggested the sum of $44,000.00 had been paid in Australian dollars (consistent with the terms of the written contract), and on Ms Ingles’ evidence that enabled her to obtain a loan of funds for construction of the house.
  5. [74]
    I find that Mr Bongioletti was complicit in the representation made to Ms Ingles’ bank. During the hearing Mr Bongioletti agreed that PBH’s solicitors had advised it not to be involved in a scheme which misled the bank as to payment of a 20% cash deposit. I took the question put to Mr Bongioletti as a means of distancing the firm of solicitors from any wrongdoing.
  6. [75]
    On 16 March 2018 PBH noted on a variation document the completion payment of $9,372 and did not make any reference to an unpaid sum of $44,000.00 for a deposit.
  7. [76]
    The competing facts and evidence do not in my view give rise to conflicting inferences of equal degrees of probability.
  8. [77]
    I accept Ms Ingles evidence that she and Mr Bongioletti on behalf of PBH agreed that 44,000 trade dollars would be paid by her to PBH in part satisfaction of the contract price.
  9. [78]
    Based on my findings of fact and the evidence set out, I consider it is more probable than not that PBH agreed to provision of 44,000 trade dollars as part of the consideration for construction of a house for Ms Ingles. I draw that inference and make that finding.
  10. [79]
    It is not possible, nor necessary given the conduct of the parties to make a finding as to whether payment of 44,000 trade dollars was made on 20 December 2014. I do not accept that the B2B Barter cheque bearing the date 20 December 2014 is evidence of provision of 44,000 trade dollars to PBH on that date. On the basis of Ms Ingles’ evidence, I find that the cheque was back dated by Ms Ingles at some later time. As a result, the cheque is not evidence of payment of 44,000 trade dollars on 20 December 2014 in satisfaction of an agreement reached on that day to pay part of the contract amount in trade dollars. I consider it sufficient to find that as of 17 November 2016 44,000 trade dollars had been made available to PBH as a member of B2B Barter.
  11. [80]
    I find that because PBH accepted 44,000 trade dollars in part satisfaction of the contract price and applied an equivalent sum in an amount of $44,000.00 in satisfaction of the progress payments under the contract, PBH is estopped from relying on the terms of the written contract in relation to payment of progress payments in Australian dollars, nor in relation to the contractual requirement for variations to be recorded in writing.[12]
  12. [81]
    I also consider PBH’s conduct in continuing to build the house over a number of years without demand for the sum of $44,000.00 is conduct consistent with his agreement to accept 44,000 trade dollars in part satisfaction of the contract price.
  13. [82]
    I consider it likely that part way through construction of the house PBH determined not to use trade dollars in its business and that left it short in terms of funds necessary to complete the house.
  14. [83]
    That is a likely explanation as to why PBH then sought to make savings in the construction of the house by varying items of work to reduce the cost of the build and is consistent with his evidence that he had planned to do a variation at completion of the works to take account of the unpaid moneys. I discuss later PBH’s request for a variation to complete the works.

What money has fallen due under the contract, what money has been paid and what remains to be paid?

  1. [84]
    Progress payments are set out in Schedule 2 of the contract as follows:

Deposit: $11,000.00

Base: $22,000.00

Frame: $33,000.00

Enclosed: $77,000.00

Fixing: $44,000.00

Practical Completion: $33,000.00

Total: $220,000.00 (inclusive of GST)

  1. [85]
    Mr Bongioletti attached a bank statement to his statement of evidence which records what he says are the only three payments received from Ms Ingles:
    1. (a)
      1 August 2017  $17,000.00
    2. (b)
      6 October 2017 $71,500.00
    3. (c)
      16 May 2018 $42,750.00

Total: $131,250.00.

  1. [86]
    Ms Ingles’ closing submissions set out a table of payments made less variations.
  2. [87]
    I find that the amount received by PBH on 1 August 2017 is the payment made by Ms Ingles on 28 July 2017 for the Frame stage in an amount of $22,000.00, less the sum of $5,000 agreed to be owing to her by PBH for commission on another project.  As previously noted the sum of $44,000.00 has been deducted by PBH from the Deposit, Base and part of the Frame stages of the contract. A tax invoice dated 28 July 2017 was delivered by PBH in an amount of $17,000.00 said to be “Adjusted invoice for frame stage”.
  3. [88]
    I find that the amount received by PBH on 6 October 2017 is the amount paid by Ms Ingles for the Enclosed stage in an amount of $77,000.00 less the amount of $5,500.00 agreed to be owing to her by PBH for commission on another project plus GST. A tax invoice was delivered by PBH dated 26 September 2017 in an amount of $71,500.00 said to be “Adjusted invoice for progress payment for enclosed stage”.
  4. [89]
    I find that the amount received by PBH on 16 May 2018 is the amount paid by Ms Ingles for the Fixing stage in an amount of $44,000.00 less an amount of $1,250.00 for whitegoods agreed to be supplied by Ms Ingles rather than PBH as part of the contract. PBH delivered an invoice dated 4 May 2018 in an amount of $44,000.00 said to be “Request for progress payment to present stage i.e Fixing”.
  5. [90]
    That analysis accords with the table of payments set out in Ms Ingles closing submissions.
  6. [91]
    Ms Ingles table of payments does not refer to a payment alleged in Ms Ingles statement to have been made on 10 April 2018 for “Lock up”.[13] There is no explanation as to the amount of the payment or what the payment might relate to. The sum bears no relationship to the timing or amount of progress payments. There is no supporting documentation provided. PBH does not provide any evidence in relation to the alleged payment. I am unable to find that any other payment has been made than the payments referred to by Mr Bongioletti.
  7. [92]
    Mr Bongiolletti’s last affidavit attaches tax invoices dated 28 July 2017 and 4 October 2017 referring to a reimbursement to the owner totalling $10,500.00. Ms Ingles appears to have set off $10,500. I find that the contract price was reduced by $10,500.00 by agreement of the parties to set off the sum of $10,500 owing by PBH to Ms Ingles.
  8. [93]
    There is a further agreed reduction in the contract price as a result of a variation to the contract whereby Ms Ingles was to supply all flooring.
  9. [94]
    At the hearing Ms Ingles said that the sum of $23,250.00 was intended to cover the cost of flooring removed from her contract and the cost of flooring removed from Ms Watson’s contract. Ms Ingles said that Ms Watson met the cost of extra electrical work in Ms Ingles’ home, which was used to offset the cost of the flooring to be met by Ms Ingles. At the hearing Ms Ingles said that half the sum of $23,250.00 would be referable to her house and half to Ms Watson’s house.
  10. [95]
    Despite the difficulty of reconciling this adjustment to the contract price, Mr Bongioletti takes no point. In his last affidavit dated 12 October 2021, Mr Bongioletti says that the contract price was reduced by $23,638.00. I accept that is the amount of the adjustment to the contract sum by reference to a signed variation document dated 15 March 2018 attached to Mr Bongioletti’s last affidavit.
  11. [96]
    Ms Ingles also says in part of her evidence that the contract was varied to reduce the contract price by $23,628.00.[14]
  12. [97]
    I find that the contract price was further reduced by $23,628.00. The variation document provides that the adjustment is to be made to the “completion payment” of $33,000.00, which is now $9,372.
  13. [98]
    Mr Bongioletti does not address the deduction for white goods, however, I am prepared to accept Ms Ingles evidence on that point because of an email dated 23 April 2018 requesting the variation.[15] I find that the contract price was further reduced by the sum of $1,250.00 for the cost of white goods to be separately borne by Ms Ingles.
  14. [99]
    Accordingly, I find, taking into account the set off and variations in favour of Ms Ingles, that the adjusted contract price is:

Original contract price $220,000.00

Less reimbursement for commissions owed to Ms Ingles $10,500.00

Less variation removing cost of flooring $23,628.00

Less variation removing cost of white goods $1,250.00

Adjusted contract price $184,622.00

  1. [100]
    The payments made in Australian dollars by Ms Ingles, in satisfaction of the adjusted contract price reveal the following :

Adjusted contract price $184,622.00

Less amount paid $131,250.00

Less amount not yet due and owing for completion $9,372.00

 $ 44,000.00

  1. [101]
    I do not accept the analysis of unpaid money as set out in Mr Bongioletti’s last affidavit. Mr Bongioletti suggests that a sum of $78,750.00 remains unpaid. That sum cannot be reconciled with any of the evidence I have analysed in this decision.
  2. [102]
    Either the sum of $44,000.00 remains outstanding as contended by PBH or it has been paid by the deductions effected against the progress claims for the deposit, base and part of the frame stage. PBH has never rendered invoices for sums amounting to $44,000.00. I have previously found that PBH has accepted 44,000 trade dollars as part payment of the contract sum and has applied $44,000.00 in satisfaction of part of the contract price.
  3. [103]
    On this basis I find that there is currently no sum due and owing under the contract.

Is Ms Ingles in breach of contract?

  1. [104]
    In accordance with the adjusted contract, the sum of $9,372.00 is payable at the practical completion stage. Mr Bongioletti said at the hearing that the works were about two weeks away from occupation stage. That sum has not fallen due.
  2. [105]
    I find that Ms Ingles is not in breach of contract as a result of failure to pay any sum due and owing under the contract. My previous finding that Ms Ingles paid the deposit, base stage and part of the frame stage by trade dollars is relevant to this finding.
  3. [106]
    Later in the decision I consider delays to the works. I find that although Ms Ingles is responsible for some delays, those delays have not been the cause of failure to complete by PBH so as to put Ms Ingles in breach of contract.

Is PBH in breach of contract as a result of delay in completion, defective building work and failure to obtain relevant certification?

Delay

  1. [107]
    PBH alleges that construction of Ms Ingles house was agreed with her to be undertaken at the same time as another house at Carey Street Gayndah for a Ms Watson and that delays in commencement related to Ms Watson’s house. Further PBH says that the Gayndah houses were agreed not to be commenced until completion of a project being built by PBH at Walker Street in Bundaberg.
  2. [108]
    Ms Ingles denies that she agreed to this arrangement. However, her statement of evidence refers to the steps taken by her to arrange for the purchase of land by Ms Watson for the purpose of Ms Watson constructing a house to be built by PBH.
  3. [109]
    It is not clear when work actually commenced on Ms Ingles house. Building approval was given for Ms Ingles house on 22 June 2016. The contract required work to commence two weeks later. That date would have been 6 July 2016.
  4. [110]
    Building approval for Ms Watson’s house was given on 29 November 2017.
  5. [111]
    Given that payment for the Frame stage, was received on 1 August 2017 I infer that construction started some months prior to that date.
  6. [112]
    In the absence of any evidence as to an agreed extension of time for the commencement date I find that the commencement date accords with the contract and was 6 July 2016.
  7. [113]
    Despite taking issue with Mr Bongioletti’s evidence as to why commencement of construction was delayed after signing the contract, Ms Ingles nevertheless provides in her final submission that for the purpose of calculating her damages for delay, she gives him the benefit of starting the build almost two years after it should have commenced.[16]
  8. [114]
    Accordingly, I do not understand Ms Ingles to maintain any claim for liquidated damages arising out of commencement of construction from July 2016 rather than at an earlier date.
  9. [115]
    The contract provides that the work will reach practical completion within 125 days after commencement, subject to any extensions of time under clause 16 of the contract. Thus, the contract anticipated practical completion on 8 November 2016.
  10. [116]
    On the evidence before me construction proceeded until approximately September 2018, with the parties continuing to discuss completion up to approximately October 2018.
  11. [117]
    PBH asserts that any delay in construction relates to Ms Ingles refusing to pay the sum of $44,000.00 to it in Australian dollars rather than trade dollars. There is no evidence that PBH made a demand for the sum of $44,000.00.
  12. [118]
    Mr Bongioletti’s evidence is that he ceased work on the job because Ms Ingles refused to pay the money owed under the contract. There is no evidence as to the nature of any demand for payment of the sum of $44,000.00 or how Ms Ingles refused to make the payment. Mr Bongioletti says that without payment of the deposit and progress payments PBH did not have the working capital to finish the jobs.
  13. [119]
    There is no evidence of a notice of suspension of works given by PBH under clause 18.1(a) of the contract for failure to pay a progress claim.
  14. [120]
    There is no evidence of a notice of suspension of works given by PBH under clause 18.1(j) of the contract where the owner is otherwise in substantial breach of the contract, which on would expect if the sum of $44,000.00 was due and owing and outstanding.
  15. [121]
    There is no evidence that PBH sought an extension of time with respect to the building period under clause 16 of the contract. Nor is there any evidence that PBH delivered a notice to remedy breach to Ms Ingles under clause 27 of the contract requiring payment of the sum of $44,000.00.
  16. [122]
    I have previously noted that there is no evidence of a progress claim having been delivered for the deposit or base stages but an offset of $44,000.00 was applied to those stages and part of the frame stage.
  17. [123]
    Each party attached some email correspondence to their statements which is relevant to the latter part of the contract:
    1. (a)
      Email Ms Ingles to PBH dated 16 March 2018, asking that a variation in relation to supply of flooring have a handwritten note added to the variation for use by the bank. The note to state what the contract price was and now is and what stage the variation is coming out of and how much is left in that stage and how much is left in the fix out stage.
    2. (b)
      Email Ms Watson to PBH dated 23 April 2018 requesting the remainder of the electrical and air conditioning to be varied from the contract for the remaining work to be completed at both the Watson and Ingles’ properties.
    3. (c)
      Email PBH to Ms Ingles dated 7 June 2018 requesting confirmation that a sum of $34,000 will be paid to finish both Ms Ingles house and Ms Watson’s house at Gayndah. This was said to cover two 6m x 6m sheds at cost and leaves $12k for driveway access and landscaping.
    4. (d)
      Email Ms Ingles to PBH dated 8 August 2018 asking for an update… “I would like to go out to Gayndah but need to know if someone is at the house.  Also I have arranged for the flooring to be done at both houses around the end of the month.”
    5. (e)
      Email PBH to Ms Ingles dated 16 August 2018 confirming electrical fit out by Watmar (an electrical business associated with Ms Watson) on both houses, and flooring to be arranged by Ms Ingles on both houses. Remaining works were described as being 2 6x6m colourbond sheds, concrete apron to cross over, front yards levelled, turfed, gravel driveway to shed areas.
    6. (f)
      Email Ms Ingles to PBH dated 28 August 2018 confirming installation of the kitchen had occurred and seeking an estimated completion date when everything will be completed. Statement made that: “I will be going out to Gayndah when I am informed that the electricians are going to be on site, I will be taking out the white goods …the flooring is totally out of this equation as we have our own floor layers for this.”
    7. (g)
      Email Ms Watson to PBH dated 3 September 2018 seeking a confirmation of date of completion of all other works, excluding electrical and air conditioning …so once we know the date of all other completed works, we will book our guys in to attend.
    8. (h)
      Email PBH to Ms Ingles dated 3 September 2018 requesting confirmation from both Ms Ingles and Ms Watson that they are happy with the “spec” and the amount of $34,000.00 to finish the houses. Confirming variations have been given in relation to completion of the house.
    9. (i)
      Email from PBH to Ms Watson dated 4 September 2018 at 9.56am:

Good morning Sharyn/Roz, I have spoken with Paul and he needs done as a matter of urgency to complete your houses,

  1. Confirm by signing the email the specs re the finishing of the house, shed, landscaping etc re email 7th June.
  2. Says he can’t finish with his work until the power is connected to finish hot water, smoke alarms for final.
  3. Also the Sewer connection point which is not available needs to be installed.  This is not part of our scope of works.  Plumbing can’t be finalized until it’s done.
  4. Because you are installing clipflooring electrical works should be complete before installation.
  1. (j)
    Email from Ms Ingles to PBH dated 4 September 2018 at 11.20 am:

Good morning Shelley/Paul

After your current email to both Sharyn & I we discussed your request and wish to advise that we will be lodging immediately with QCAT as this just keeps going on week after week, month after month with no actual outcome of a date for our houses to be fully completed and handed over to us.  It is costing us over $1,000 each month per house for interest payments to bank and rates, this has been going on now for years and neither one of us can keep affording this.  You have been told that Sharyn & I are not prepared to sign any side agreement but you keep putting that in your emails back to us whenever we ask for a completion date.  It is obvious even after we lodged a complaint with QBCC that our houses are not going to get finished anytime soon as neither party is agreeable.  We shall put it in to the hands of QCAT and let them decide the outcome.

Regards Sharyn Watson & Roslyn Ingles

  1. (k)
    Email PBH to Ms Ingles dated 11 September 2018 advising as much as can be completed has been done until the power is connected. The house can be done and occupied once this and the flooring is done. Driveway access can be completed as can smoke alarms and hot water.  Petaluma’s yard has been cleaned up ready for finishing.
  2. (l)
    Email PBH to Ms Watson dated 17 September 2018 asking when the Petaluma application for connection with Ergon will be forthcoming as this is holding up subcontractors to finish off the jobs as they are very near to completion now.
  3. (m)
    Email from Ms Watson to PBH dated 15 October 2018, advising - relevant to Ms Ingles house:

…we will schedule a three day visit to …run the mains for Petaluma.  We have lodged all paperwork with Ergon and expect the power to be on within the next 10 business days.  If you could let us know if this happens, that would be great.

…we would like our final invoice to be paid prior to attendance…

  1. (n)
    Email PBH to Ms Watson dated 15 November 2018 at 9.17am:

..there has been no more Electrical work done there ie cross over connection/Telstra to enable us to finish concrete aprons as we have requested previously.  Also is Roz intending to finish the flooring? She has not responded to any emails.

  1. (o)
    Email Ms Ingles to PBH dated 15 November 2018 at 7.14pm:

Shelley and Paul I will say this one more time, do not worry about the flooring it is nothing to do with your firm.  I have told you this repeatedly…I am presently lodging with QCAT, I need this house finished and finished to my contract that I signed with your company and not changed to what you wish to give to me…I am not in default with you, you are the ones that have taken now just on 4 years to build my house and it is still not finished.  I am over your tactics and I am moving forward.

Thank you Roz

Findings

  1. [124]
    The email exchange submitted by both parties in evidence, is obviously not complete. However, on the basis of the only correspondence in evidence, I find that:
    1. (a)
      construction of Ms Ingles house and of Ms Watson’s house was being undertaken at the same time. Communication between the parties was shared with each other party. A variation was agree removing remaining electrical work and flooring for both properties with the cost of that work to be shared.
    2. (b)
      Delays in relation to electrical work, Ergon connection and Telstra connection to be undertaken by Ms Watson, affected Ms Ingles property.
    3. (c)
      Ms Ingles accepted some delays associated with completion of her house as a result of delays on the part of Ms Watson in completing electrical work, an Ergon connection and Telstra connection. Apart from these items of work there is no evidence as to what delays on the Watson home might have caused delays on Ms Ingles’ home. Delay in commencement related to Ms Watson’s home is no longer an issue on the basis of Ms Ingles concession.
    4. (d)
      Ms Ingles refused to sign a variation in relation to revised works for completion and the cost of completion in an amount of $34,000.00 to finish both houses. I cannot say what proportion of that sum related to each house.
  2. [125]
    Apart from Ms Ingles arrangements for completion of electrical work which I find to be causative of some delays in completion, there are nevertheless unexplained delays on the part of PBH from the period of commencement of work in July 2016 to September 2018.
  3. [126]
    Despite this there is no evidence that Ms Ingles has ever delivered a notice to remedy breach in accordance with clause 27 of the contract requiring PBH to complete the works.
  4. [127]
    Clause 3.1 of the contract requires that the builder must complete the works on or before the end of the building period as extended under clause 16. Other than the requirement in clause 3.1 there is no warranty given or imposed by the Domestic Building Contracts Act 2000 (Qld)[17] that the works be conducted diligently. Time is not expressed to be of the essence in the contract.
  5. [128]
    I find that in the absence of an extension of time for completion, granted under the contract, PBH is in breach of contract through failure to complete construction of Ms Ingles house within the time agreed. However, generally delay in completion of building work is not a repudiation of contract.[18]

Defective and incomplete work

  1. [129]
    As to whether building work is defective, incomplete, not compliant and certification is unable to be provided, it is relevant that the works have not reached practical completion. It is at practical completion that the works must be free from all but minor defects, compliant and that the relevant certificates are given. Because that point has not been reached, I am unable to find that PBH is in breach of its contract in any of these respects.
  2. [130]
    I also accept the submission from PBH that Ms Ingles has not established on the evidence that the building work is defective, not compliant and that certification is unable to be provided. There is no objective evidence from builder or other expert to support Ms Ingles assertions.

Has PBH repudiated the contract?

  1. [131]
    Beyond breach of contract by PBH as a result of delay, it is apparent from the email exchange that PBH is only prepared to complete the contract works upon payment of a sum of $34,000.00 (allocated across both Ms Ingles and Ms Watson’s houses in an unknown proportion) and upon agreement in relation to a new specification of works to be performed. This position ignores the terms of the contract including the special conditions.
  2. [132]
    PBH’s attitude expressed at the hearing is that it will complete the contract works upon payment of $44,000.00 and upon agreement as to a specification of works.
  3. [133]
    I find that the position put by PBH in its email correspondence with Ms Ingles and as expressed in these proceedings is a repudiation of the contract, in the sense that PBH has evinced an intention not to be bound by the contract. PBH is only prepared to fulfil the contract in a manner inconsistent with its obligations and only on terms satisfactory to it.[19]

Is the contract at an end?

  1. [134]
    Neither party has terminated the contract in accordance with the process set out at clause 27 of the contract. By clause 27.9 of the contract rights at common law are expressly preserved.
  2. [135]
    Ms Ingles evidence is that she has not terminated the contract and does not intend to do so as she requires PBH to complete the house and to bear any increased costs of construction and rectification. Ms Ingles continues to affirm the contract despite PBH PBH’s repudiation of the contract.
  3. [136]
    The closing submissions of PBH put the question of termination of the contract on the basis that the Tribunal can find on the balance of the evidence that the applicant did not pay the deposit pursuant to the contract and therefore the contract is terminated, with no order as to damages. The best I can make of that submission is that PBH considers the contract to be at an end. I have previously found that PBH is estopped from relying on the terms of the contract requiring a payment of the deposit and other progress payments up to a value of $44,000.00 in Australian dollars.
  4. [137]
    I conclude that the contract remains on foot as between the parties.

Discussion

  1. [138]
    At this point in time, the state of play between the parties is that:
    1. (a)
      the house is incomplete;
    2. (b)
      work on the house stopped in about November 2018;
    3. (c)
      approximately two weeks work is required to complete the house;
    4. (d)
      both parties have varied the contract in terms of work performed and to be performed;
    5. (e)
      no adjustment to the contract price has been agreed to take account of the variations undertaken by PBH and subsequently agreed to by Ms Ingles;
    6. (f)
      an adjustment to the contract price has been agreed with respect to the variations required by Ms Ingles to exclude electrical work and flooring;
    7. (g)
      completion of construction has been delayed by PBH refusing to complete construction until a variation as to price and contract works is entered into;
    8. (h)
      PBH says that it is ready, willing and able to complete the works upon payment of moneys said to be owing under the contract and agreement as to remaining works;
    9. (i)
      Ms Ingles preferred remedy is that PBH is ordered to complete the works at its cost and pay liquidated damages;
    10. (j)
      The contract remains on foot.
  2. [139]
    It is remarkable that neither party has utilised the terms of the contract to manage the construction of the house to a satisfactory conclusion and to protect their own interests.

What remedies are available to Ms Ingles?

Claims

  1. [140]
    By her closing submissions Ms Ingles seeks:
    1. (a)
      An order that PBH complete the works, in accordance with the Code, with all proper certifications, within 2 months of a decision by the Tribunal, at PBH’s expense and accepting variations to the position of the bathroom and the lowered ceiling heights; and
    2. (b)
      An order that in the event of failure to comply with the first order, that Ms Ingles be entitled to judgment in the sum of $151,420.00 representing liquidated damages of $79,100 based on $50 per day for 1,582 days and lost rental in the sum of $72,320.00.
  2. [141]
    The Tribunal will not make orders which require it to supervise work. For that reason I will not consider the type of default orders sought by Ms Ingles.
  3. [142]
    Ms Ingles has indicated that she does not intend to pay any further sum to PBH and that completion of the works should be entirely at his cost. That ignores the contract which provides for a remaining payment of $9,372.00 upon practical completion.
  4. [143]
    Plainly electrical work and flooring removed from the contract by Ms Ingles must be completed before the house can reach practical completion.
  5. [144]
    PBH submits that it is a registered builder capable of finalising the works however that would be subject to payment of deposit moneys of $44,000.00 and remaining progress payments under the contract to be paid by the applicant and a varied scope of works given price increases on supplies and contractors since the commencement of the proceedings. For the reasons given I do not consider PBH has any entitlement to $44,000.00 nor to a variation with respect to work to be completed at a varied price.

Liquidated damages

  1. [145]
    Schedule 1 of the contract provides for late completion damages of $50 per day. Clause 31 of the contract provides that if the works do not reach practical completion by the end of the building period the owner is entitled to liquidated damages in the sum specified for each day after the end of the building period to and including the earlier of:
    1. (a)
      the date of practical completion;
    2. (b)
      the date the contract is ended; and
    3. (c)
      the date that the owner takes control of possession of or use of the site or any part of the site.
  2. [146]
    By clause 3 of the contract the builder must complete the works on or before the end of the building period, as extended under clause 16. 
  3. [147]
    As previously determined, the start date is referred to in Schedule 1 as two weeks after Council approval of plans. The building period is 125 days after commencement, subject to clause 16 of the contract.
  4. [148]
    Clause 16 provides that a builder is entitled to a reasonable extension of time to the building period if commencement or the carrying out of the works is delayed by a claimable delay, which includes, inter alia, anything done or not done by the owner.
  5. [149]
    By clause 16.3 the builder is to give the owner written notice of the extension of time detailing both the cause of the delay and the extension of time within 20 working days of when the builder became aware of both the cause and the extent of the delay. The Notice to be accompanied by supporting documents.
  6. [150]
    By clause 16.4 a builder may claim more than one extension of time if a particular claimable delay has more than one effect on the carrying out of the works. By Clause 16.5 if the owner wishes to dispute an extension of time the owner must, within 5 working days of receiving the builder’s notice give a dispute notice.
  7. [151]
    I have previously noted that PBH did not seek an extension of time under clause 16 of the contract.
  8. [152]
    Despite the way in which the applicant has calculated liquidated damages being $50.00 per day from the date of commencement said to be 30 June 2016, the calculation should in fact run for the period from the due date of completion under the contract, that is 8 November 2016 to the earliest of the dates referred to in clause 31 of the contract. Relevantly, practical completion has not been reached and the contract has not ended.
  9. [153]
    The question is whether Ms Ingles took “control of”, “possession of” or used “the whole or any part of the works prior to practical completion so as to limit her claim for liquidated damages.
  10. [154]
    As to what is meant by those words, the words are repeated in clause 25 of the contract with respect to the consequences of an owner taking control of, possession of or using the works. One of the significant consequences of such conduct on the part of an owner is that the builder may accept the actions as a variation to omit that part of the works not carried out and completed as at the date the owner acts without permission.
  11. [155]
    The clause allows the builder to give written permission to an owner to take control of take possession of or use the works.
  12. [156]
    I think that the words must be construed to mean conduct by an owner which so affects the work site as to prevent completion of works by the builder.
  13. [157]
    I do not think that Ms Ingles could be said to have taken possession of the site in the sense of having keys which enable her to lock out PBH and its workers. 
  14. [158]
    The house is listed for sale. Mr Bongioletti’s last affidavit attaches photographs on the Domain property sales website advertising the house for sale, described as “New Home Under Construction”. At the last hearing Ms Ingles confirmed that the house was listed for sale in 2016 when construction commenced and has remained for sale with PBH’s knowledge since then. Ms Ingles said that no-one has come through the house. Ms Ingles said that recently she was contacted with respect to a person expressing interest in purchase of the house but that has not been pursued.  Ms Ingles said that she does not have the keys and has “no idea” who has the keys, however they may be with the builder. In the circumstances described in relation to listing the house for sale I do not think that conduct amounts to possession, control or use sufficient to prevent completion of part of the works.
  15. [159]
    More relevantly, by written variation dated 15 March 2018 Ms Ingles has omitted flooring from the contract.[20] Ms Ingles evidence is that Ms Watson would be responsible for electrical work and Ms Ingles would be responsible for flooring at both properties.
  16. [160]
    I find based on the email exchanges set out earlier in this decision, that the parties intended the electrical work would be completed and the flooring work undertaken from approximately the end of August 2018.[21] That work necessarily involves control and use of the site by Ms Ingles. I find that until the electrical work and flooring is completed PBH will not be able to bring the works to practical completion. That was confirmed to Ms Ingles by email on 11 September 2018.
  17. [161]
    I find that from the end of August 2018 completion of electrical and flooring work was in the hands of Ms Ingles and Ms Watson. I find that from that date Ms Ingles was in control of the site to complete those works, with the consent of PBH to enter the site and perform the work. PBH in fact ceased work until that work was complete.
  18. [162]
    I calculate liquidated damages for the period 9 November 2016 to 31 August 2018 (being 660 days) at $50 per day in an amount of $33,000.00.
  19. [163]
    PBH’s challenge to the claim for liquidated damages is expressed in its Response submissions and closing submissions as a denial that Ms Ingles is entitled to any damages whatsoever. No basis is given for that submission.
  20. [164]
    PBH has not argued that the liquidated damages clause is unenforceable as a penalty or for any other reason. I do not consider the contractual entitlement to be a penalty. I also note that by failure to seek an extension of time for completion, as contemplated by clause 16, PBH is disentitled from relying on any delays caused by Ms Ingles in the course of the work.[22]
  21. [165]
    In the circumstances Ms Ingles is entitled to recover the agreed liquidated damages as money payable to her under the contract in an amount $33,000.00.

Lost Rental

  1. [166]
    In addition to liquidated damages Ms Ingles claims a sum for lost rental as a result of delayed completion. PBH argues that Ms Ingles is not entitled to claim both liquidated damages and damages for breach of contract.  I accept that submission and refuse that claim.

Completion of Contract Works

  1. [167]
    The Tribunal has power under s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) to order rectification or completion of defective or incomplete tribunal work.
  2. [168]
    The preferable course is for the house to be completed. For the reasons given in Saunders v Roberts[23] I consider that the Tribunal may make such an order, and that it is fair and appropriate in the circumstances that PBH be ordered to do, so given the relatively small amount of work which remains to be completed.  Importantly PBH is best placed to obtain all relevant permits and approvals which must be renewed, and all relevant certifications given its performance of the contract works.  I do not think there has been any delay on the part of Ms Ingles which would make grant of the remedy unfair in the circumstances.

Orders

  1. [169]
    It is Ordered that:
    1. (a)
      Roslyn Ann Ingles complete the following work at her cost, to an extent sufficient to enable completion of the contract works as varied.:
      1. the connection of electricity and telecommunications to 8 Petaluma Court, Gayndah (the Property); and
      2. installation of electricity and air conditioning at the house constructed at the Property.
    2. (b)
      Paul Bongioletti Homes Pty Ltd must co-operate with Roslyn Ann Ingles to enable compliance by her with the Tribunal’s Order, including by provision of keys and access to the Property.
    3. (c)
      Roslyn Ann Ingles must advise Paul Bongioletti Homes Pty Ltd in writing when the works the subject of the Tribunal’s Order have been completed.
    4. (d)
      Paul Bongioletti Homes Pty Ltd must complete the contract works (including the external works set out in the special conditions to the contract) in accordance with the terms of the contract, as varied, between it and Roslyn Ann Ingles dated 20 December 2014.
    5. (e)
      Paul Bongioletti Homes Pty Ltd must commence work to complete the contract works at the Property within a reasonable time after receipt of advice from Roslyn Ann Ingles that the works to be undertaken by her are complete, but in any event no later than three months after receipt of the advice.
    6. (f)
      Paul Bongioletti Homes Pty Ltd must complete the contract works as varied, with reasonable diligence.
    7. (g)
      Upon practical completion and in accordance with the terms of the contract dated 20 December 2014, as varied, Roslyn Ann Ingles must pay the remaining progress payment of $9,372.00.
    8. (h)
      Paul Bongioletti Homes Pty Ltd must pay to Roslyn Ann Ingles the sum of $33,000.00 for liquidated damages within 21 days of date of this Order.

Footnotes

[1]           Applicant’s closing submissions dated 26 November 2020, final paragraph.

[2] Queensland Building and Construction Commission Act 1991 (Qld) s 77; s 77(2) complied with – See Exhibit 2 Attachment I, email from Building Inspector QBCC to Ms Ingles.

[3]  Exhibit 9.

[4]  Exhibit 10.

[5]  Exhibit 9, [8a].

[6]  Exhibit 2 attachment B.

[7]  Exhibit 2, 18.

[8]  Exhibit 6, 55.

[9]  Exhibit 2, [2-3].

[10]  Compare Exhibit 2, 18 where the sum endorsed on the B2B Barter cheque butt is preceded by the word and symbol: “trade $”.

[11] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5; Luxton v Vines (1952) 85 CLR 352.

[12] Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570; Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251, 276.

[13]  Exhibit 2, [26].

[14]  Exhibit 2, [25].

[15]  Exhibit 2, p 46.

[16]         Applicant’s final submissions, para. 37.

[17]  The Domestic Building Contracts Act 2000 (Qld), although repealed continues to apply to domestic building contracts entered into before 1 July 2015 by section 62 Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld).

[18]  Atkin Chambers, Hudson’s Building and Engineering Contracts, ed N Dennys and R Clay (Sweet & Maxwell, 14th ed, 2020), 905.

[19] Kennedy v Collings Construction Co Pty Ltd (1989) 7 BCL 25, 39; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 634; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115.

[20]  Exhibit 9 attachment PAB01- Variation document together with email dated 16 March 2018.

[21]  Email Ms Ingles to PBH dated 8 August 2018.

[22] Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151.

[23]  [2016] QCATA 145.

Close

Editorial Notes

  • Published Case Name:

    Ingles v Paul Bongioletti Homes Pty Ltd

  • Shortened Case Name:

    Ingles v Paul Bongioletti Homes Pty Ltd

  • MNC:

    [2022] QCAT 24

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    25 Jan 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
2 citations
Jump To
Cite 1 - (1951) 217 ALR 1
Cite 2 - (1951) 217 ALR 1
Kennedy v Collings Construction Co Pty Ltd (1989) 7 BCL 25
2 citations
Jump To
Cite 1 - (1989) 7 BCL 25
Cite 2 - (1989) 7 BCL 25
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
2 citations
Jump To
Cite 1 - (2007) 233 CLR 115
Cite 2 - (2007) 233 CLR 115
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 C.L R. 623
2 citations
Jump To
Cite 1 - (1989) 166 C.L R. 623
Cite 2 - (1989) 166 C.L R. 623
Luxton v Vines (1952) 85 C.LR. 352
2 citations
Jump To
Cite 1 - (1952) 85 C.LR. 352
Cite 2 - (1952) 85 C.LR. 352
Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570
2 citations
Jump To
Cite 1 - (1927) 39 CLR 570
Cite 2 - (1927) 39 CLR 570
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151
2 citations
Jump To
Cite 1 - [2017] NSWCA 151
Cite 2 - [2017] NSWCA 151
Saunders v Roberts [2016] QCATA 145
2 citations
Jump To
Cite 1 - [2016] QCATA 145
Cite 2 - [2016] QCATA 145
Update Constructions Pty Ltd v Rozelle Child Care Centre Limited (1990) 20 NSWLR 251
2 citations
Jump To
Cite 1 - (1990) 20 NSWLR 251
Cite 2 - (1990) 20 NSWLR 251

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v RLR [2023] QCAT 5521 citation
1

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