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CITE

Unreported Judgment

Number One Quality Homes Pty Ltd v Murphy[2024] QCAT 605Member Scott-Mackenzie
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Number One Quality Homes Pty Ltd v Murphy[2024] QCAT 605

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Number One Quality Homes Pty Ltd v Murphy [2024] QCAT 605
PARTIES:	number one quality homes pty ltd (applicant) v judith murphy daniel murphy (respondents)
APPLICATION NO:	BDL364-18
MATTER TYPE:	Building matters
DELIVERED ON:	27 December 2024
HEARING DATE:	18 July 2023
HEARD AT:	Brisbane
DECISION OF:	Member Scott-Mackenzie
ORDERS:	Number One Quality Homes Pty Ltd pay to Judith Murphy and Daniel Murphy $28,373.92 within 28 days of this order. Any application for the costs of the proceeding, together with any submissions in support of the application, be filed in the Tribunal and served on the other party by email, by: 24 January 2025. Any submissions in reply to an application for the costs of the proceeding filed in accordance with order 2 be filed in the Tribunal and served on the other party by email, by: 14 February 2025. Any application for the costs of the proceeding filed in accordance with order 2 be decided by the Tribunal on the papers, after: 14 February 2025.
CATCHWORDS:	DOMESTIC BUILDING DISPUTE – where parties entered a cost plus contract – level 2 (residential) for the construction of a granny flat and home – where the building work commenced and was substantially complete – where the respondents took possession of the home – where the respondents withdrew from the contract on grounds the applicant had failed to provide them with a copy of the signed contract and a copy of the consumer building guide – where the parties agreed the facts and issues to be decided by the Tribunal – whether, as a matter of law, a person can be estopped from exercising their statutory right to withdraw under section 35(3) of schedule 1B to the Queensland Building and Construction Commission Act 1991 (Qld) – whether the respondents were estopped by their conduct from withdrawing from the contract Domestic Building Contracts Act 2000 (Qld) (now repealed), s 72, s 93 Home Building Act 1989 (NSW), s 96A Property Agents and Motor Dealers Act 2000 (Qld), s 140 Property, Stock and Business Agents Act 1941 (NSW), s 42AA Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 5, s 108D, sch 1B, s 1, s 7, s 18, s 35, s 36, s 37, s 38, s 39, s 40, s 44, s 46 Allen & Anor v Contrast Constructions Pty Ltd (No. 3) [2021] QCATA 143 M J Arthurs Pty Ltd v Isenbert [2017] QDC 85 Barilla v James [1964-5] NSWR 741 Barport Pty Ltd v Baum [2019] VSCA 167 Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373 Blackman v Milne [2006] QSC 350; [2007] 1 Qd R 198 Collis v Currumbin Investments Pty Ltd [2009] QSC 297 Commonwealth v Verwayen (1990) 170 CLR 394 Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 Equuscorp Pty Ltd v Belperio [2006] VSC 14 Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280 Keen v Holland [1984] 1 WLR 251 Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 Marchesi v Viridian Noosa Pty Ltd [2010] QSC 324 Maritime Electric Co v General Dairies Ltd [1937] AC 610 Murphy & Anor v Number One Quality Homes Pty Ltd [2022] QCATA 125 Number One Quality Homes Pty Ltd v Murphy & Anor [2020] QCAT 339 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 The Owners – Strata Plan No. 51487 v Broadsand Pty Ltd [2002] NSWSC 770 Shah v Shah [2002] QB 35 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357 Thallon Mole Group Pty Ltd v Morton [2022] QDC 224 Thallon Mole Group Pty Ltd v Morton; Morton v Thallon Mole Group Pty Ltd [2023] QCA 250 Thompson v Palmer (1933) 49 CLR 507 Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263 Von Knorring v Baldwin [2016] QCAT 143
APPEARANCES & REPRESENTATION:
Applicant:	Mr M D White of Counsel, instructed by Butler McDermott Lawyers
Respondent:	Mr W C LeMass of Counsel, instructed by Clinton Mohr Lawyers

REASONS FOR DECISION

Application

[1]
The applicant (‘NOQH’) has made application to the Tribunal for a domestic building dispute under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) (‘original application’). In the application, it seeks payment of $62,244.56 plus costs.

Brief background

[2]
On about 26 September 2017 the parties entered a cost plus contract – level 2 (residential) for the construction of a granny flat and home (‘building work’) on land at 137 Lindsay Road, Buderim (‘site’) (‘contract’).
[3]
The building work commenced on about 31 July 2017 and was substantially complete by 16 May 2018.
[4]
The respondents (‘Mr and Mrs Murphy’) took possession of the home on about 10 June 2018.
[5]
Mr and Mrs Murphy have paid to NOQH $651,440.32 under the contract.
[6]
On about 3 October 2018 Mr and Mrs Murphy withdrew from the contract on grounds NOQH had failed to provide them with:

a copy of the signed contract; and
a copy of the consumer building guide.

Pleadings

[7]
Parties to a proceeding in the Tribunal are not required to file pleadings. Notwithstanding, NOQH and Mr and Mrs Murphy did so.
[8]
NOQH filed an amended original application. Mr and Mrs Murphy filed a response, an amended response and a further amended response. NOQH filed a reply and answer to the amended response and a reply and answer to the further amended response.

List of agreed material relied on by the parties

[9]
The parties, at the hearing of the proceeding, filed an agreed list of the material relied on by them. It was admitted into evidence and marked as exhibit A3. The material is summarised below:

No.	Description		Filed by	Date filed		Exhibit no.
Pleadings
	Amended annexure B to application for domestic building dispute		Applicant	19 May 2020		A1^[1], document 1
	Second further amended response and counter-application		Respondents	27 September 2022		A1, document 2
	Reply and answer to further amended response and counter-application		Applicant	11 June 2020		A1, document 3
Issues
	Statement of agreed facts		Parties	10 July 2023		A1, document 4
	List of issues		Parties	10 July 2023		A1, document 5
Witness statements
		Statement of Gino Loiero	Applicant		25 November 2019	A1, document 6
		Statement of Daniel Roland Murphy	Respondents		25 November 2019	A1, document 7
		Statement of Judith Ann Murphy	Respondents		25 November 2019	A1, document 8
		Second statement of Gino Loiero	Applicant		6 April 2020	A1, document 9
		Third statement of Gino Loiero	Applicant		20 July 2020	A1, document 10
Additional material
		Master Builders Queensland cost plus contract and general conditions	Applicant		26 September 2017	A2
		Consumer building guide^[2]
		Emails	Respondents		Various	R1

Statement of agreed facts

[10]
The facts are agreed between the parties. The statement of agreed facts is document number four in the hearing book.
[11]
The statement of agreed facts is in the following terms:

Parties

The Applicant is a building contractor for the purposes of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).

Mr Gino Loiero is the sole director and secretary of the Applicant.

The First and Second Respondents:

are married; and

were, between January 2017 and March 2020, the owners of property located at 137 Lindsay Road, Buderim (Lot 2 on SP299742) (the ‘Property’).

The Property was sold by the Respondents during March 2020.

The First Respondent is:

a director and the secretary of Azur Ltd (ACN 139 515 503) trading as Gateway Constructions SEQ (‘Azur’);

the sole director and secretary of 1770 Developments Pty Ltd.

Azur has held a ‘builder – open’ licence issued pursuant to the QBCC Act since at least 2011, but the First Respondent himself does not currently have a builder’s licence.

Building Contract

On or around 26 September 2017, the parties entered into a written contract for building works (‘Building Works’) to be completed on the Property (the ‘Contract’’).

8. The Respondents did not receive a copy of the General Conditions of the Contract, nor the Consumer Building Guide, from the Applicant. The Applicant’s case is that it offered those documents to the Respondents, but they refused to accept them. The Respondents case is that the Applicant never offered those documents to them.

Pursuant to the Contract, the Applicant was to construct a dwelling and associated structures on the Property (collectively, the ‘Dwelling’).

The Contract was in the ‘Master Builders Queensland Cost Plus Contract – Level 2 (Residential)’ form.

Building Works

The Building Works were:

commenced by the Applicant on or around 31 July 2017; and

substantially complete by on or around 16 May 2018.

Between 30 August 2017 and 13 June 2018, the Respondents paid the total amount of $651,440.32 to the Applicant in respect of the building works pursuant to the Contract, as follows:

Date	Amount Paid	Total Paid
30 August 2017	$19,062.17	$19,062.17
26 September 2017	$32,378.15	$51,440.32
16 November 2017	$100,000.00	$151,440.32
17 November 2017	$50,000.00	$201,440.32
9 January 2018	$l00,000.00	$301,44032
27 February 2018	$100,000.00	$401,440.32
12 April 2018	$70,000.00	$471,440.32
	$10,000.00	$481,440.32
24 May 2018	$70,000.00	$551,440.32
25 May 2018	$20,000.00	$571,440.32
13 June 2018	$80,000.00	$651,440.32

The Respondents took possession of the Dwelling on 10 June 2018.

Withdrawal

On 10 August 2018, the Applicant issued its final invoice to the Respondents in the amount of $62,915.47 (the ‘Final Invoice’).

On 18 September 2018, the Final Invoice was reissued by the Applicant in the amended amount of $62,244.56.

On 3 October 2018, the Respondents served a notice on the Applicant by email stating that they withdrew from the Contract pursuant to section 35(3) of Schedule 1B to the QBBC Act [sic] (the ‘Withdrawal Notice’).

Quantum

The amount paid to the Applicant by the Respondents before service of the Withdrawal Notice was $651,440.32.

Applicant’s out-of-pocket expenses reasonably incurred before service of the Withdrawal Notice for the purposes of section 38(8) of the QBCC Act were $623,066.40.

The Applicant’s Final Invoice for $62,244.56 is, in the absence of an effectual withdrawal from the Contract by the Respondents pursuant to section 35(3) of the QBCC Act, payable by the Respondents in full.

If the Respondents have effectually withdrawn from the Contract, the sum of $28,373.92 (which is the difference between $651,440.32 and $623,066.40) is payable by the Applicant to the Respondents in full.

(Emphasis added)

List of agreed issues to be decided by the Tribunal

[12]
The parties also agreed a list of the issues to be decided by the Tribunal. The list is document number 5 in the hearing book.
[13]
There are two issues with several sub issues of issue two, as follows:

Whether, as a matter of law, a person can be estopped from exercising their statutory right to withdraw under section 35(3) of Schedule 1B to the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).

Whether the Respondents were estopped by their conduct from withdrawing from the Building Works Contract on 3 October 2018 pursuant to section 35(3) of Schedule 1B to the QBCC Act. In deciding this issue there are sub-issues of mixed fact and law:

whether the Respondents engaged in the conduct alleged in paragraph 8(a)(i) of the Reply;

whether the Respondents:

refused to accept a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide from the Applicant upon entry into the Building Works Contract;

were able to view a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide;

requested a copy of the General Conditions of the Building Works Contract or the Consumer Building Guide from the Applicant during the Works.

whether that conduct, or other conduct by the Respondents, amounted to a representation to the Applicant that the Respondents did not want or need the Consumer Building Guide nor a complete copy of the Building Works Contract or the representations alleged by the Applicant in paragraph 8(a)(i) of the Reply;

whether the Applicant relied on those alleged representation/s to its detriment such that it is unconscionable for the Respondents to resile from them.

[14]
Section 35(3) of schedule 1B to the QBCC Act provides:

If 5 business days have elapsed from the day the contract was entered into and the owner has not received from the building contractor a copy of the signed contract and, for a level 2 regulated contract, the consumer building guide, the owner may withdraw from the contract.

[15]
Paragraph 8(a)(i) of the reply and answer to the further amended response and counter-application filed 11 June 2020^[3] (‘reply’) is in the following terms:

In respect of paragraph 8 of the [further amended reply and counter-application (FARCA)], the Applicant joins issue with the Respondents’ denial of paragraph 8 of [the amended annexure B to the original application (Appendix B)], and:

denies the allegations at paragraph 8(a) of the FARCA as the Respondents were estopped, as at 3 October 2018, from relying on the Applicant’s failure to provide a complete copy of the Building Works Contract or the Consumer Building Guide as enlivening a right to withdraw from the Building Works Contract pursuant to section 35(3) of Schedule 1B, as:

by their conduct in:

A. signing the Building Works Contract despite the warning provided therein not to sign same unless the Consumer Building Guide had been provided;

B. refusing to accept a copy of the complete Building Works Contract and a copy of the Consumer Building Guide from Mr Gino Loiero on around 26 September 2017 on the basis that the First Respondent had built ‘hundreds of homes’ in his career;

C. informing Mr Loiero that they were to acquire various supplies through the First Respondent’s construction company;

D. not requesting a copy of the Consumer Building Guide or the General Conditions of the Building Works Contract during the Works despite holding a copy of the Agreement section of the Building Works Contract which put them on notice as to the existence of same;

E. making interim payments during the Works pursuant to the Building Works Contract; and

F. taking possession of the Dwelling on around 10 June 2018;

they represented to the Applicant that:

G. they were more experienced in construction than a regular ‘consumer’ and so did not require a copy of the Consumer Building Guide or a complete copy of the Building Works Contract;

H. the Building Works Contract, the Consumer Building Guide, and any other legal documentation was a formality only, and was not important to them; and

I. they would not consider any contractual documentation offered by the Applicant, as they had been involved in a number of construction projects before and so knew their rights and obligations, and so they did not require a copy of the Consumer Building Guide or a complete copy of the Building Works Contract;

J. they intended for the terms of the Building Works Contract to bind both themselves and the Applicant despite not receiving a copy of the General Conditions or the Consumer Building Guide, and accepted that they were so bound;

(together, ‘the Representations’); …

Statements of evidence

[16]
Also included in the hearing book are statements of evidence:

Mr Gino Loiero filed 25 November 2019^[4];
Mr Murphy filed 25 November 2019^[5];
Mrs Murphy filed 25 November 2019^[6];
Mr Loiero filed 6 April 2020^[7]; and
Mr Loiero filed 20 July 2020^[8].

[17]
The statements of evidence must be read subject to the statement of agreed facts.

Mr Loiero’s first statement of evidence

[18]
Mr Loiero states he was initially contacted by Mrs Murphy on or around 26 April 2017. She asked him whether he might construct a home for her and Mr Murphy on the site. Subsequently, Mr Murphy informed him he was experienced in the building construction industry.
[19]
The signing of the contract is described in paragraphs 78 – 89 of the statement, in the following terms:

Upon the Respondents signing the Building Works Contract at my office on 26 September 2017, I removed the white copy of the Schedule to same and provided it to the Respondents.

Once I had provided the Respondents with the white copy of the Schedule, they stood up to leave.

I then asked the First Respondent if he wanted the rest of the Building Works Contract so that he could show it to his bank.

When I refer to the rest of the Building Works Contract, I mean the general conditions, and the additional ‘bank copy’ of the Schedule to the Building Works Contract which is included in the contract booklet provided by Master Builders Queensland.

The First Respondent turned back to me and laughed. It seemed to me that he was surprised that I was offering him the copies of the Building Works Contract.

He then said words to the effect that he did not need either the general conditions or the bank copy. He said that the Respondents would not be needing finance for the construction works, and that he had built hundreds of houses.

I understood this to mean that, as he had been involved in the construction industry for quite a period of time and had previously been involved in the construction of houses, the First Respondent either already understood his entitlements and obligations pursuant to the Building Works Contract, or otherwise knew that he could obtain a copy of the Building Works Contract should he require it

On the basis that I knew the First Respondent to be involved in the construction industry, I accepted his assurances that it was not necessary to provide copies of the Building Works Contract or the Consumer Building Guide.

I considered that if it became necessary, the Respondents could simply request a copy of the Building Works Contract during the construction works.

The Respondents never requested, either prior to or during the construction works, that I provide them with a copy of the Building Works Contract or the Consumer Building Guide.

If the Respondents had made such a request, I would have immediately provided them with a copy of the Building Works Contract.

I do not consider that there would have been anything for the Applicant to gain by refusing to provide a copy of the same.

(Emphasis added)

[20]
The construction of the building work commenced after the contract was signed. The work, Mr Loiero states, was substantially complete on or around 16 May 2018. Mr and Mrs Murphy moved into the home on or around 10 June 2018.
[21]
On or around 5 September 2018 NOQH’s lawyers sent to Mr and Mrs Murphy a letter of demand for outstanding monies. An amended final claim was sent by NOQH to Mr and Mrs Murphy on or around 18 September 2018. Subsequently, in or around October 2018, Mr Loiero states, about four months after Mr and Mrs Murphy moved into the home, NOQH received a letter from Mr and Mrs Murphy withdrawing from the contract. The letter, omitting formal parts, reads:

The Owners hereby give notice of withdrawal from the Master Builders Cost Plus Contract – Level 2 (residential) for works at 137 Lindsay Road, Buderim (“the Contract”) under s 35(3) Schedule 1B of the Act.

Relevantly, “If 5 business days have elapsed from the day the contract was entered into and the owner has not received from the building contractor a copy of the signed contract and, for a level 2 regulated contract, the consumer building guide, the owner may withdraw from the contract”.

The Owners reserve all of our rights.

Mr and Mrs Murphy’s statements of evidence

[22]
Mr and Mrs Murphy each filed statements of evidence. Mr Murphy states in or around April 2017 his wife contacted Mr Loiero to discuss engaging NOQH to construct a granny flat and garage on the site. Preliminary works commenced in or around mid-July 2017 and were completed on or around 9 August 2017.
[23]
On 26 September 2017, Mr Murphy states, he and his wife went to Mr Loiero’s home to discuss the contract. The statement then continues:

When I arrived at the meeting with Mr Loiero, he produced several pages from a Master Builders Cost Plus Contract which included:

Master Builders Cost Plus Contract – Level 2 – Residential – Schedule (‘Schedule’);

Master Builders Cost Plus Contract – Level 2 – Residential – Appendix (‘Appendix’); and

Master Builders Cost Plus Contract – Level 2 – Residential – Agreement (‘Agreement’).

Mr Loiero did not produce any General Conditions of the Contract (‘General Conditions’) or the Consumer Building Guide (‘Consumer Building Guide’).

42. and 43. ...

Notably, the Schedule and Appendix did not include:

an Estimated Total Cost of the Works (this was advised in the email from the Applicant attached at DM-5 of this Statement);

a Date of Commencement: or

any specifications.

I asked the Mr Loiero about these missing details in the Schedule and about attaining a copy of the General Conditions and Consumer Building Guide (‘Complete Building Contract’). Mr Loiero told me that the details in the Schedule could be clarified later and that he would provide a copy of the General Conditions and Consumer Building Guide via email.

In my experience, a builder usually completes two contracts so that it can retain one copy of the contract and provide the other copy to the owner.

Despite this, I agreed that Mr Loiero could provide the Complete Building Contract via email but made it clear to him that I needed the Complete Building Contract so that I could insure the Dwellings.

Notwithstanding my request, I never received a copy of the Complete Building Contract from Mr Loiero (until provided by the Applicant’s lawyer in these proceedings).

(Emphasis added)

[24]
The building work commenced in or around the end of September 2017. He and his wife, Mr Murphy states, took possession of the home on 10 June 2018.
[25]
On 3 October 2018, Mr Murphy states, he sent a letter to NOQH by email, “… giving notice of withdrawal from the Contract in accordance with s 35(3), Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) on the basis that the Applicant had failed to provide the consumer building guide.”
[26]
Mrs Murphy’s statement is in terms similar to her husband’s statement. In relation to the signing of the contract, she states:

On 26 September 2017, my husband and I attended a meeting with Mr Loiero at his private residence to sign a contract for the construction of the Works.

At this meeting, the Applicant provided my husband and I with a number of pages from a residential cost-plus contract including:

(a) a Schedule section containing several details such as the names of the parties and the construction period;

(b) an Appendix section which was substantially incomplete; and

(c) an Agreement page.

Both my husband, myself and Mr Loiero signed the Agreement page.

Mr Loiero then proceeded to rip these pages from a book they were in and handed them to my husband.

At that time, I did not consciously think about what the pages did or did not include and I did not realise that this bundle of pages did not contain any General Conditions or a Consumer Building Guide. Mr Loiero did not show these documents to me at this meeting nor did he explain to me what was contained within them.

I recall however, my husband requesting that the Applicant provide an entire completed copy of the cost-plus contract.

(Emphasis added)

[27]
The invoices received from NOQH, Mrs Murphy states, total $713,684.88. She has paid to NOQH $651,440.32.

Mr Loiero’s second and third statements of evidence

[28]
In his second statement of evidence, Mr Loiero states, “… the whole of the contract was produced, with the schedule then torn out and provided to the respondents after it had been signed.”
[29]
Mr Loiero, in his third statement of evidence, states that prior to entering the contract, he “… had never before used a cost-plus contract.”
[30]
The contract, Mr Loiero states, was purchased by NOQH’s bookkeeper, Ms. Jamie Bowden, from Master Builders Queensland. He continues:

That occurred on 26 September 2017, being the day the Building Works Contract was signed.

The package which the Applicant purchased from Master Builders Queensland included one carbonated contract booklet (with three copies of the Building Works Contract), as well as a copy of the Consumer Building Guide.

The carbonated contract booklet was set out with the three copies of the Schedule at the front of the booklet. There were then three copies of the General Conditions behind the copies of the Schedule.

Each copy of the Schedule and then General Conditions was a different colour - one white copy for the homeowner, one yellow copy for the contractor, and one pink copy for the financier.

Both the Schedule and the General Conditions were able to be torn out of the booklet.

The contract package contained all of the necessary documents (being the Building Works Contract and the Consumer Building Guide), and so there can no suggestion that I simply did not have the correct documents to provide to the Respondents when they signed the Building Works Contract.

Rather, per paragraphs 78 to 89 of my First Statement, I offered those documents to the Respondents, but they refused to take them.

At the time, I thought to myself that I could not force the Respondents to take the documents if they did not want them.

I had offered the documents to them, and they had been refused.

[31]
NOQH’s second last invoice, number 1103 dated 8 June 2019, was for $112,889.07. Mr and Mrs Murphy paid $80,000.00.

Earlier decisions

Number One Quality Homes Pty Ltd v Murphy & Anor^[9]

[32]
Mr and Mrs Murphy asked the Tribunal to determine a preliminary question. The question was framed in the following terms:

Did the Murphys withdraw from the building contract that they entered into with Number One dated 26 September 2017, pursuant to schedule 1B, section 35(3) of the Queensland Building and Construction Commission Act 1991 (Qld), on 3 October 2018? If so, are the Murphys entitled to a refund from Number One of $28,373.92?

[33]
The Tribunal, on 14 July 2020, refused the application.
[34]
After referring to M J Arthurs Pty Ltd v Isenbert^[10], relied on by Mr and Mrs Murphy, and Blackman v Milne^[11], at [20], Marchesi v Viridian Noosa Pty Ltd^[12], at [17] and [18], Collins v Currumbin Investments Pty Ltd^[13], at [15], Day Ford Pty Ltd v Sciacca^[14], at 216, and Sultana Investments Pty Ltd v Cellcom Pty Ltd^[15], at [53], relied on by NOQH, the Tribunal continued:

[51] In the present case, there is no suggestion that the contract between the parties was prohibited or otherwise illegal. Indeed s 44 of schedule 1B provides that, unless a contrary intention appears in the Act, a failure by a building contractor to comply with a requirement under the Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable. The present circumstances are not analogous with those in Marshall and subsequent cases and the broad prohibition under the QBCC Act in relation to unlicensed persons undertaking to perform building work, performing building work or receiving any form of consideration in respect of the performance of building work. As the Court of Appeal has made clear, such contracts are illegal.

[52] In my view it is at least arguable that the provisions of Part 5 of schedule 1B are significantly confined, or predominantly confined, to the homeowner and building contractor. The QBCC Act may be distinguished for example from the legislative provisions considered in Roberts v Australia and New Zealand Banking Group Ltd, which the Court of Appeal found formed ‘part of an elaborate scheme with a broad public orientation, embracing its financial viability and flow-on features like CTP insurance premium levels. Tightly regulating the circumstances in which claims may be pursued in court cannot be characterized as of concern only, or even primarily, to the parties immediately affected.’

[53] Whilst the QBCC Act may be considered consumer legislation, the main object of which is to protect consumers from incompetent or dishonest builders, the objects of the Act also include achieving a reasonable balance between the interests of building contractors and building owners by regulating the building industry and domestic building contracts.

[54] If the interpretation I have posited is open, then Number One may be able to establish on a contested hearing that the Murphys were experienced in building construction projects and that Number One acted to its detriment in undertaking the construction work absent the provision of a copy of the signed contract and consumer building guide to the Murphys. Had the Murphys requested the documents at an earlier point in time, Number One could have done so. It follows that Number One may have an argument that it would be unconscionable for the Murphys to resile from the position that there was on foot an enforceable contract pursuant to which Number One undertook building work. Number One may therefore be entitled to assert that the Murphys should be estopped from denying that they waived compliance with the requirements of the QBCC Act to receive a copy of the contract and the consumer building guide.

(Citations omitted)

Murphy & Anor v Number One Quality Homes Pty Ltd^[16]

[35]
Mr and Mrs Murphy appealed against the decision and orders to the Appeal Tribunal. The decision of the Appeal Tribunal was delivered on 1 November 2021.
[36]
After referring to the decision of the Tribunal at first instance, and observing the arguments advanced on appeal largely replicated the submissions made to the Tribunal at first instance, the Appeal Tribunal dismissed the appeal on the ground Mr and Mrs Murphy had not demonstrated an appealable error in the exercise of the discretion not to order a separate hearing.^[17]

Legislative framework

[37]
The QBCC Act applies to the contract between the parties. The objects of the Act are spelt out in section 3. They are:

to regulate the building industry:

to ensure the maintenance of proper standards in the industry; and

to achieve a reasonable balance between the interests of building contractors and consumers; and

to provide remedies for defective building work; and

to provide support, education and advice for those who undertake building work and consumers; and

to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners; and

to regulate building products to ensure:

the safety of consumers and the public generally; and

persons involved in the production, supply or installation of building products are held responsible for the safety of the products and their use; and

to provide for the proper, efficient and effective management of the commission in the performance of its functions.

[38]
Domestic building contracts are provided for in schedule 1B to the Act. It is uncontentious the building contract is a domestic building contract as defined in section 3 of the schedule.
[39]
Division 2 of part 2 of the schedule specifies the documents that must be given by the building contractor to the building owner. The building contractor must give the building owner a readily legible signed copy of a regulated contract, including any plans and specifications for the subject work, within five business days after entering the contract.^[18] The definition of regulated contract, found in section 5, includes a cost plus contract under which the total amount payable for the contracted services is reasonably estimated to be more than the regulated amount. Regulated amount is defined in section 1. It means $3,300.00 or the higher amount, if any, prescribed by a regulation. Again, it is uncontentious the contract is a regulated contract as defined.
[40]
The building contractor, by virtue of section 18 of the schedule, in the case of a level 2 regulated contract, must also give the building owner a copy of the consumer building guide before the owner signs the contract. The section provides:

This section applies to a level 2 regulated contract.

The building contractor must give the building owner a copy of the consumer building guide before the owner signs the contract.

Maximum penalty - 20 penalty units.

The consumer building guide may be given to the building owner separate from, or attached to, the contract.

[41]
Consumer building guide is defined in section 1 of the schedule. It means a statement prepared and published by the Queensland Building and Construction Commission (‘QBCC’) under section 46(1) of the schedule.
[42]
The definition of level 2 regulated contract, found in section 7 of the schedule, includes a cost plus contract for which the total amount payable for the contracted services is reasonably estimated to be equal to or more than the level 2 amount ($20,000.00).^[19] The contract, the parties agree, is a level 2 regulated contract.
[43]
Part 5 of schedule 1B to the QBCC Act, in section 35, gives a building owner a right to withdraw from a regulated contract in a cooling-off period. It provides:

The building owner under a regulated contract may withdraw from the contract within 5 business days after the day on which the owner receives a copy of the signed contract from the building contractor.

Also, if the building owner under a level 2 regulated contract does not receive the consumer building guide before receiving a copy of the signed contract, the owner may withdraw from the contract within 5 business days after the day on which the owner receives the consumer building guide.

If 5 business days have elapsed from the day the contract was entered into and the owner has not received from the building contractor a copy of the signed contract and, for a level 2 regulated contract, the consumer building guide, the owner may withdraw from the contract.

Nothing in subsection (3) affects the right of the building owner to withdraw from the contract under subsection (1) or (2) if the owner subsequently receives from the building contractor a copy of the signed contract and, for a level 2 regulated contract, the consumer building guide.

[44]
A building owner may not withdraw from a regulated contract under section 35 if:

before entering the contract, the building owner received formal legal advice about the contract; or

when, or after, the contract is entered, the building owner tells the building contractor the building owner received formal legal advice about the contract before entering the contract.^[20]

[45]
The procedure for withdrawing from a regulated contract is set out in section 37 of schedule 1B to the QBCC Act. It provides:

To withdraw from a regulated contract under schedule section 35, the building owner must, within the time allowed under the section for the withdrawal:

give a withdrawal notice to the building contractor; or

leave a withdrawal notice at the address shown as the building contractor’s address in the contract; or

serve a withdrawal notice on the building contractor in accordance with any provision in the contract providing for service of notices on the building contractor by the building owner.

In this section:

withdrawal notice means a written notice signed by the building owner under a regulated contract stating:

that the building owner withdraws from the contract; and

the section of this schedule under which the withdrawal is made.

[46]
Section 38 applies if a building owner withdraws from a regulated contract under section 35. If there is a prepaid amount for the contract that is not less than the retainable amount, the building contractor:

may keep an amount equal to the retainable amount out of the prepaid amount; and
must refund any balance of the prepaid amount to the building owner.^[21]

[47]
If there is a prepaid amount for the contract that is less than the retainable amount, the building owner must pay the building contractor an amount equal to the difference between the retainable amount and the prepaid amount.^[22] If there is no prepaid amount for the contract, the building owner must pay the building contractor an amount equal to the retainable amount.^[23]
[48]
In the section, a reference to the prepaid amount for the contract is a reference to the amount paid to the building contractor under the contract by the building owner before the building owner withdrew from the contract.^[24] Also, in the section a reference to the retainable amount for the contract is a reference to the sum of:

an amount equal to any out-of-pocket expenses reasonably incurred by the building contractor before the building owner withdrew from the contract; and
if the building owner withdraws from the contract under schedule section 35(1) - $100.00.^[25]

Hearing

[49]
The proceeding was heard over two days. Mr Loiero, Mrs Murphy and Mr Murphy gave evidence.

Mr Loiero

Evidence in chief

[50]
Mr Loiero is the managing director of NOQH. He and Mr Murphy met on site on 13 September 2017. When asked by Mr Loiero, “How do you want to do this [the contract for the building work]?”, Mr Murphy responded, “Well, we should do a cost-plus.”
[51]
NOQH’s bookkeeper obtained the ‘pack’ from Master Builders Queensland and filled out the forms. It contained the general conditions and building consumer guide. The pack contained three copies of the contract, a white copy for the owner, a pink copy for the lender and a yellow copy for the builder.
[52]
After Mr and Mrs Murphy and he signed the contract, Mr Loiero removed the pages from the pack. He asked Mr Murphy whether he required the pink copy of the contract for his lender. Mr Murphy replied, “No, no finance.” He later stated Mr Murphy responded, “No need.”
[53]
He offered the bundle, including the general conditions and consumer building guide.
[54]
The building work was substantially complete by 16 May 2018. Mr and Mrs Murphy moved into the home on 10 June 2018. In around October 2018 he received the notice of withdrawal from the contract.

Cross-examination

[55]
In cross-examination, Mr Loiero conceded he was aware he needed to give to Mr and Mrs Murphy the building consumer guide, because “… that’s the first thing you give them.” He later continued:

… there was a consumer guide sitting on top of that package, right? So I handed that, right, to the Murphys. Okay? The whole pack. Actually, actually, wait a second, wait a minute. I pushed that aside, and I handed them the contract. I actually didn’t give them the consumer guide first, okay? The consumer guide that was on top there sat there.

[56]
Mr Loiero denied Mr and Mrs Murphy moved into the home before the building work reached practical completion.
[57]
NOQH’s bookkeeper, Ms Bowden, Mr Loiero agreed, is still employed by the company.

Mrs Murphy

Evidence in chief

[58]
Mrs Murphy stated she remembers going to Mr Loiero’s home but is unable to recall the date. She was unable to recall anything said. She signed something and the pages were removed.
[59]
Mrs Murphy was unable to recall anything being offered to her during the meeting.

Cross-examination

[60]
In cross-examination, Mrs Murphy said she is unable to recall reading the terms of the contract before signing it.
[61]
Mr White of Counsel, who appeared for NOQH, asked Mrs Murphy whether she and Mr Murphy

... signed the contract, then Mr Loiero signed the contract, he tore out some white pages from the contract and gave them to you. And then after he’d done that you stood up to leave and Mr Loiero asked Mr Murphy if you guys wanted to keep a copy of that contract booklet to show to your bank. Do you remember that?

Mrs Murphy responded, “No, I don't remember.”

[62]
The exchange between Mr White and Mrs Murphy then continued:

Mr White: And he offered the booklet across the table for you to take with you. I’d suggest to you that he did that?

Mrs Murphy: I don’t think so.

Mr White: And that in response to that Mr Murphy turned back to Mr Loiero and laughed and he said words to the effect that he didn’t need the general conditions or the bank copy. Do you remember Mr Murphy saying that?

Mrs Murphy: I don’t know, I don’t remember that.

Mr White: He said something like, “No, I’ve done this hundreds of times” or “No, I’ve built hundreds of houses”, he said something like that?

Mrs Murphy: I don’t recall.

Mr White: And then you left just with those pages that had been torn out and given to you and not with the copy of that booklet?

Mrs Murphy: I guess. I don’t know. No, I don’t remember, I just don’t recall any of that.

[63]
She later stated she is not aware of the general conditions or consumer building guide.

Mr Murphy

Evidence in chief

[64]
Mr Murphy stated he asked Mr Loiero for a contract several times. He and Mrs Murphy went to Mr Loiero’s home. After being shown around the home and introduced to Mr Loiero’s wife, Mr and Mrs Murphy:

… just sat down, we - I was - one of the things I was confused with, normally there are two contracts, you have a contract for your builder and a contract for the owner. There was only one contract. Gino had only filled in part of that contract and then the parts that he went through and filled in, we signed those parts, he tore those sheets out, gave us those sheets, and basically there’s your contract. And so Jude and I signed them, took those sheets away, and that was basically it.

Mr LeMass: Was any other documentation offered to you at that meeting by Mr Loiero?

Mr Murphy: No.

Mr LeMass: Did you ask for any other documentation at that meeting?

Mr Murphy: No.

Mr LeMass: Was a document referred to as the Consumer Building Guide, was that mentioned at all in the meeting?

Mr Murphy: No.

Mr LeMass: Did you ask for the Consumer Building Guide?

Mr Murphy: No.

Mr LeMass: Had you at that time ever heard of the Consumer Building Guide?

Mr Murphy: I hadn’t actually.

Mr LeMass: Have you ever read that document before?

Mr Murphy: No.

[65]
He was not offered a copy of the contract, Mr Murphy stated.

Cross-examination

[66]
In cross examination by Mr White, Mr Murphy stated he is a director of Azure Pty Ltd. It constructs transportable homes, child care centres and timber and brick homes. Mr Murphy agreed he has been in the building construction industry since he was twenty-two years of age.
[67]
He and Mrs Murphy approached Mr Loiero to construct a granny flat on the site. Mr Loiero would only construct the granny flat and home together.
[68]
Mr Loiero and Mr Murphy agreed to enter a cost-plus contract because Mr Murphy was supplying some materials. Mr Murphy had used cost-plus contracts in the past.
[69]
Mr Murphy denied having seen the building consumer guide. At the meeting at Mr Loiero’s home on 26 September 2017, Mr Loiero gave him the white copy of the contract. He denied being asked by Mr Loiero if he wanted a copy of the contract booklet and the rest of the documents for his bank.
[70]
He did not read the general conditions or seek legal advice on the documents. The building consumer guide was not mentioned during the meeting.
[71]
The building work was substantially completed on or about 14 May 2018, Mr Murphy stated.

Submissions

[72]
The parties, in accordance with directions given by the Tribunal, filed and served written submissions.

NOQH’s submissions

[73]
Conveniently, NOQH addresses the two issues to be decided by the Tribunal under the headings:
1. Issue one: Whether, as a matter of law, a person can be estopped from exercising their statutory right to withdraw under section 35(3) of schedule 1B to the QBCC Act; and
2. Issue two: Whether Mr and Mrs Murphy were estopped by their conduct from withdrawing from the contract on 3 October 2018 pursuant to section 35(3) of schedule 1B to the QBCC Act.
[74]
The submissions refer to section 35(3). It is uncontroversial, it is submitted:

the section applies to the contract; and
NOQH was required to provide Mr and Mrs Murphy with a copy of the contract and consumer building guide.

[75]
What is controversial, the submissions continue, is whether the right to withdraw from the contract given Mr and Mrs Murphy by the section is amenable to estoppel.
[76]
The availability of estoppel is said to depend on the categorisation of the right, as being either for the public or private benefit. Reference is made to the decision of the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd^[26], at 1016, and the decision of the English Court of Appeal in Shah v Shah^[27], at [20].
[77]
The submissions then refer to schedule 1B to the QBCC Act and its earlier iteration, schedule 1B to the Domestic Building Contracts Act 2000 (Qld) (now repealed) (‘DBC Act’). Whilst the Act seeks to address a range of public policy objectives, including consumer protection, it is submitted it also seeks to address contractual rights between parties. Hence, it cannot be said to constituted consumer protection legislation in the broad-brush sense, the argument continues.
[78]
The right given to a building owner by section 35(3) of schedule 1B, it is submitted, is a private right of a kind amenable to estoppel if the facts make good such a claim.
[79]
NOQH refers to the decision of the Victorian Court of Appeal in Equuscorp Pty Ltd v Wilmoth Field Warne (a firm)^[28]. There, the appellant, a former client of the respondent, asserted a conditional costs agreement between the parties was void by reason of non-compliance with the Legal Practice Act 1996 (Vic.). After finding there was a common assumption the agreement was void, and referring to Kok Hoong, the Court continued:

The question in this case is therefore whether the Act reflects a purpose and a social policy which necessarily excludes the operation of the doctrine of estoppel. In our view the answer to this question may depend on the level of generality with which it is posed. In Kok Hoong this question was approached by considering whether the protective purpose of the particular legislation is inconsistent with the ability of the parties to enter into arrangements which may give rise to an estoppel.

If the relevant question is whether the doctrine of estoppel is inconsistent with the prohibition of certain types of costs agreements between solicitors and their clients, it must be answered in the affirmative. The report which preceded the introduction of the Act indicates that the purpose of provisions regulating certain types of the agreements was to increase access to justice by giving lawyers an incentive to pursue meritorious claims, while at the same time protecting their clients against excessive costs by limiting the amount which the lawyer can charge if the litigation is successful. Section 102 of the Act is consistent with that goal because agreements between solicitors and clients which do not comply with the legislation are void. Under this broad approach to the question it would clearly be inconsistent with the policy of the Act to allow estoppel to operate so as to permit enforcement of a costs agreement in breach of the Act.

If, on the other hand, the question is whether permitting WFW to assert estoppel against Equus would undermine the policy of the Act, in our view it would not do so, because of the particular facts of this case. There was no inequality of bargaining power between Equus, ‘a very experienced professional litigant’, and WFW. As the learned judge below observed, although Equus had no independent legal advice when drafting the agreement, it had been carefully negotiated over a 15 month period by Mr Russo - Equus’ then managing director, key shareholder and ‘intelligent and experienced litigant who demonstrated himself to be well able to look after his own interests’ - to reflect the financial interests which Equus sought to achieve in its capacity as a financier of litigation. Far from exposing the client to excessive costs, the learned judge below actually observed that ‘in many respects … [the agreement] operates surprisingly harshly against the interests of WFW’.

The situation would be different if a person who was unable to fund his or her claim had been presented by a solicitor with an agreement on a take it or leave it basis and the parties had thereafter acted on the assumption that the agreement was valid. Estopping a party in those circumstances from claiming that the agreement was invalid would clearly undermine the protective purpose of the legislation.

Because we have reached the conclusion that the agreement is not void under s 102 of the Act, we do not need to resolve the question whether the applicability of estoppel is determined by an examination of the social policy objectives of the relevant legislation, or by an examination of the effect of permitting estoppel to be raised in the circumstances of the particular case. It should be noted that the distinction between these approaches was not made Kok Hoong, or in the later cases which have held that the policy of legislation does or does not prevent reliance on estoppel. Nor was the question argued in this case.

(Citations omitted)

[80]
The issue, it is submitted, is to be considered on the basis of the particular facts of a particular case. The present case stands in stark contrast to the ordinary case because there is no imbalance in bargaining power to be overcome. Here:

Mr Murphy is himself an experienced member of the building and construction industry, having first held a builders licence at 22 years of age before then moving into property development;

whilst his evidence-in-chief was to the effect that he is now a farmer and had moved out of the property development space about 15-20 years ago, the reality of the matter, as emerged during cross-examination, is that he remains in the property development business to this day;

he gave evidence that he has quite possibly entered into “hundreds” of building contracts during this period;

he remains a director, or otherwise an interested party, in at least two licenced building and property development companies in Australia and in the USA;

in respect of the development works he was undertaking in the USA at around the time of his entry into the Contract with the Applicant, he was entering into contracts as a consumer;

he deals with building projects on a daily basis, and told Mr Loiero as much prior to the parties entering into their Contract;

he has constructed hundreds of houses, built shopping centres, schools, numerous childcare centres and apartment buildings;

he had told Mr Loiero about his experience and involvement in the building and construction industry during on-site meetings, prior to the parties’ entry into the Contract, including the work that he was doing in the USA, the childcare centre his company was building elsewhere in Buderim, and the work that he had done in Aspley, that is, buying blocks, subdividing them with dwellings and then selling them off;

in his own words, and as he accepted in cross-examination he communicated to Mr Loiero prior to the parties entering into their contract, Mr Murphy was “not a novice building his first house”;

it was on account of this experience that he took the lead on behalf of the Murphys when it came to negotiating the ‘big-ticket’ items with Mr Loiero, including the scope of works, contractual terms and financial matters, whereas Mrs Murphy assumed responsibility for the fixtures, fittings and other specifications associated with the dwellings as work was carried out;

Mrs Murphy gave evidence that she was reliant upon and trusted in Mr Murphy’s building and construction industry experience throughout the process, including in determining that she was satisfied to enter into the Contract with the Applicant;

Mr Murphy gave evidence that he knew, prior to entering into the Contract, that cost plus contracts often lead to disputes and cost overruns, which is a key matter communicated by the Consumer Building Guide and is relevant for present purposes;

on the Applicant’s evidence, it was in fact Mr Murphy who proposed the parties enter into the relevant costs plus contract in the first place, given Mr Murphy's experience in having used cost-plus contracts in the past;

Mr Murphy was not in a position to deny that he had proposed that the parties enter into a cost-plus contract - his evidence was that the decision was “mutual” and he couldn’t recall who had first proposed the cost-plus contract;

Mr Loiero’s evidence that Mr Murphy had proposed the cost-plus contract was consistent with Mr Murphy’s evidence that he has built many houses with another builder using a cost plus contract, and that he made a representation to similar effect to Mr Loiero prior to the parties entering into their contract;

Mr Murphy agreed that he was satisfied to enter into a cost-plus contract with the Applicant on the basis that he and Mr Loiero were each experienced in the building and construction industry, and could accordingly make further decisions and resolve any matters as they arose during the course of the works;

Mr Murphy gave evidence that, approximately 3-4 years prior to his entry into Contract with the Applicant, he had entered into a number of cost-plus contracts as a consumer, had read the general conditions that applied to those cost-plus contracts, and accordingly had a general understanding of what they provided at the time of his entry into the Contract with the Applicant;

Mr Murphy agreed that he had the means to access the General Terms and Conditions of the Contract and the Consumer Building Guide through his own industry resources and experience at any time;

the Applicant, on the other hand, had never used a cost-plus contract before and was unfamiliar with its terms, hence the need to purchase a contract bundle from the Master Builders Association for use with the Murphys.

(Citations omitted)

[81]
NOQH distinguishes the decision of the District Court of Queensland (McGill DCJ) in M J Arthurs from the present case on the following grounds:

firstly, M J Arthurs is a decision of a single District Court judge and not binding upon the Tribunal notwithstanding its persuasiveness;

secondly, M J Arthurs dealt with the DBC Act, which does not apply in the present case, and as set out above, the repeal of the DBC Act and introduction of the QBCC Act saw the establishment of an additional policy objective that did not appear in the DBC Act, namely: “to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners”;

thirdly, the statements by McGill DCJ in the judgement might be seen as somewhat equivocal at least insofar as:

his Honour did not refer to any of the above authority regarding the approach to be followed in assessing the availability of an estoppel, and gave very brief consideration to the issue in the context of an otherwise lengthy decision in a factually and legally complex proceeding;

his Honour then proceeded to deal in far greater detail with the inadequacy of the plaintiffs pleading relating to the alleged estoppel, that the plaintiff had not relied upon any evidence relevant to an estoppel, and the general inadequacy of the evidence on the issue of estoppel;

in the circumstances, his Honour’s consideration of the matter could be properly characterised as obiter.

(Citations omitted)

[82]
The Tribunal, NOQH submits, “… is open to reach its own conclusion in respect of the proper characterisation of section 35(3) of the QBCC Act.”
[83]
NOQH likewise distinguishes the decision of the District Court (Muir DCJ, as her Honour then was) in Thallon Mole Group Pty Ltd v Morton.^[29].
[84]
Estoppel by conduct, NOQH submits, “… prevents a party from unjustly resiling from an assumed state of affairs which he or she has induced another party to adopt as the basis of some act or omission which, if the assumption were not adhered to, would operate to that other party’s detriment ...”, citing Thompson v Palmer^[30], per Dixon J (as his Honour then was), at 547. It includes, the argument continues:

estoppel by convention, by which a person is precluded from denying an assumption which formed the conventional basis of a relationship between that party and another; and

estoppel by representation, which precludes a party who, by their representation, has induced another party to adopt or accept a state of affairs and thereby to act to that other party’s detriment, from asserting a right inconsistent with the state of affairs on which the other party acted.

(Citations omitted)

[85]
The submissions refer to numerous matters in Mr Loiero’s statements of evidence and the conduct of the parties before entering the contract. The conduct, it is submitted, demonstrates:

a representation to the Applicant that the Respondents did not want or need the Consumer Building Guide nor a complete copy of the Building Works Contract; or alternatively,

a representation to the Applicant that:

the Respondents were more experienced in construction than a regular ‘consumer’ and so did not require a copy of the Consumer Building Guide or a complete copy of the Building Works Contra–t - to adopt the language of Mr Murphy, he was not a novice building his first house;

the Building Works Contract, the Consumer Building Guide, and any other legal documentation was a formality only, and was not important to them;

they would not consider any contractual documentation offered by the Applicant, as they had been involved in a number of construction projects before and so knew their rights and obligations, and so they did not require a copy of the Consumer Building Guide or a complete copy of the Building Works Contract;

they intended for the terms of the Building Works Contract to bind both themselves and the Applicant despite not receiving a copy of the General Conditions or the Consumer Building Guide, and accepted that they were so bound.

[86]
NOHQ relied on the representations by performing the building work. If Mr and Mrs Murphy are permitted to withdraw from the contract, it is submitted, NOQH “… will be entitled only to the out-of-pocket expenses incurred by him in respect of the Works prior to the issuing of the withdrawal notice.” Further, it is said, Mr Loiero “… will have effectively spent more than nine months building a house for the Respondents, for free, with no remuneration to show for his efforts. The detriment to the Applicant occasioned by such an outcome is clear.”
[87]
In paragraphs 53 – 65 of its submissions, NOQH discusses the evidence led by Mr and Mrs Murphy concerning the quality of the building work, delay and cost overruns, and the assertion that, in the circumstances, it was not unconscionable for Mr and Mrs Murphy to withdraw from the contract. NOQH submits the assertion misapprehends the basis on which unconscionability arises for consideration in the context of an estoppel. In any case, NOQH submits, Mr and Mrs Murphy expressed no concern about the quality of the building work until after they took possession of the home and paid the final claim.

Mr and Mrs Murphy’s submissions

[88]
Mr and Mrs Murphy submit that, as a matter of law, an estoppel cannot arise in relation to the statutory right to withdrawal under section 35 of schedule 1B to the QBCC Act because:

the provisions of the QBCC Act cannot be contracted out of;

failure to provide the contract and consumer building guide carries a financial penalty for the builder; and

the QBCC Act specifies three, very narrow and clearly defined circumstances in which the right to withdraw can be waived. It would undermine those carefully drafted exceptions for lesser circumstances to amount to an estoppel preventing a home owner from withdrawing from the contract.

(Citations omitted)

[89]
The submissions refer to the decisions of McGill DCJ in M J Arthurs and Muir DCJ in Thallon Mole. In any event, it is submitted, even if an estoppel could arise in the face of the statutory right to withdraw from the building contract, “... the Respondents’ conduct falls well short of the standard necessary to give rise to an estoppel.”
[90]
Mr and Mrs Murphy assert the only substantive dispute between the parties concerns the meeting at Mr Loiero’s home on 26 September 2017. Mr Loiero states he offered a copy of the contract and consumer building guide to Mr and Mrs Murphy, and they refused them. Mr and Mrs Murphy deny Mr Loiero offered the documents to them. Virtually identical circumstances, it is submitted, were found to enliven the right to withdraw from a regulated contract in Von Knorring v Baldwin^[31].
[91]
Section 35 of schedule 1B to the QBCC Act, it is submitted, is not amenable to an estoppel for five reasons. First, if parliament intended the withdrawal procedure could not be waived by contract, then it must have also intended the withdrawal procedure could not be modified by an estoppel by representation. In those circumstances, the argument continues, the admission of an estoppel would nullify the statutory provision in section 35.
[92]
Secondly, the builder’s failure to provide a copy of the contract and consumer building guide carries a financial penalty under the QBCC Act.^[32] The imposition of penal consequences for failure to comply with the disclosure requirements also indicates these provisions are not amenable to estoppel.
[93]
Thirdly, the purpose of the withdrawal provisions is consumer protection, and consumer protection is a matter of public interest.
[94]
Fourthly, the statutory right to withdraw has been permitted to be exercised by a home owner even very late in the building process.^[33]
[95]
Fifthly, the QBCC Act contains three narrow and carefully defined exceptions to the statutory right to withdraw.^[34] Permitting an estoppel to arise in broader circumstances than those exceptions, it is said, would undermine the evident purpose of the legislation, which is to confine the ‘carve outs’ from the cooling-off period to the circumstances expressly set out in the Act.
[96]
Mr and Mrs Murphy refer to the elements of estoppel summarised by Nettle J in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd^[35], at [35]. If section 35 of schedule 1B to the QBCC Act is amenable to estoppel, it is submitted, NOQH’s estoppel case fails in any event for four reasons. First, it is submitted, the Tribunal should prefer Mr and Mrs Murphy’s evidence to Mr Loiero’s evidence about what occurred at the meeting on 26 September 2017, and therefore find Mr and Mrs Murphy did not refuse to accept a copy of the contract and consumer building guide but, rather, those documents were not offered to them.
[97]
Secondly, it is submitted, NOQH’s estoppel case depends upon Mr Loiero having the consumer building guide with him at the meeting, such that he would have provided it to Mr and Mrs Murphy but for Mr Murphy refusing to accept it.
[98]
Thirdly, Mr and Mrs Murphy submit that even if Mr Loiero’s evidence is taken at its highest, the elements of estoppel are not established.
[99]
Fourthly, it is submitted, even if the representation was made, for estoppel to be made out the Tribunal must be satisfied it was unconscionable for Mr and Mrs Murphy to withdrawal from the building contract.
[100]
The submissions conclude:

The effect of withdrawal is that the Builder is entitled to its reasonably incurred out of pocket expenses, but nothing more. The Builder has already been paid $651,440.40. It is common ground that the Builder’s reasonably incurred out of pocket expenses are $623,066.40, resulting in a refund to the Murphys of $28,373.92.

Unlike other proceedings in this Tribunal, in building proceedings the presumption is that costs follow the event. Accordingly, the Murphy’s should have the costs of the proceeding. The Murphy’s would seek to be heard (briefly) on the appropriate order as to costs.

[101]
In support of the assertion in building proceedings the presumption is that costs follow the event, Mr and Mrs Murphy cite the decision of the Appeal Tribunal in Allen & Anor v Contrast Constructions Pty Ltd (No. 3)^[36], at [47].

NOQH’s submissions in reply

[102]
NOQH filed submissions in reply to Mr and Mrs Murphy’s submissions. It is submitted QBCC and Master Builders Association being independent organisations does not of itself establish the conclusion relied on by Mr and Mrs Murphy the consumer building guide must have been required to have been obtained separately from the Master Builders Cost Plus Contract pack and draws attention to Mr Loiero’s evidence the guide was included in the contract booklet he purchased from Master Builders Association.
[103]
In response to the submissions there is no evidence Mr and Mrs Murphy knew anything about the consumer building guide, knew what it contained, nor whether they wished to see it, drawing attention to Mr Murphy’s evidence that, at the time of signing the building contract, he asked Mr Loiero about obtaining a copy of the guide.
[104]
NOQH repeats its earlier submission that when the Tribunal is looking back at all the circumstances of the situation that eventuated between the parties, the concept of unconscionability is approached in the context of assessing the role the respective parties played in the making and adoption of the relevant representation and the detriment that will be suffered by the representee, drawing attention to what was said by Deane J in Commonwealth v Verwayen^[37].
[105]
The submissions in reply conclude:

It is on this basis that the Applicant submits that the Respondents’ issues with the cost and delay in the Building Works should not form part of the Tribunal’s assessment of whether the withdrawal from the Contract would be unconscionable. What should instead be fundamental to the Tribunal’s assessment of unconscionability is the role that the Respondents played in the assumption adopted by the Applicant and the detriment that he will suffer as a consequence should their withdrawal from the Contract be permitted.

Consideration

Introduction

[106]
I turn now to consider whether a building owner under a regulated contract and level 2 regulated contract may be estopped from withdrawing from the contract under sections 35(1) and (2) of schedule 1B to the QBCC Act. Before doing so, it is appropriate I clarify references to the contract and parts of the contract in this part of these reasons for decision.
[107]
The ‘pack’ or ‘package’ purchased by Ms Bowden from Master Builders Queensland comprised the following documents in the order described:

a folder on which is printed a contractor’s checklist, a description of the documents included in the contract and instructions for completing the documents;
(i) a white (owner’s copy), yellow (contractor’s copy) and pink (lending institution’s copy) carbonized copies of the following documents:

the schedule (pages 1 – 3);

the appendix (pages 4 – 12); and

the agreement page (page 13).

a white (owner’s copy), yellow (contractor’s copy) and pink (lending institution’s copy) copy of the general conditions, including an index (pages 1 – 4) and the general conditions (pages 5 – 26).

[108]
The schedule, pages 1 – 3, has been partly completed by hand. The first page of the appendix, page 4, likewise has been partly completed by hand and the parties have signed and dated the agreement page, page 13.
[109]
Contract is defined in the general conditions to include the general conditions, any special conditions in part J of the appendix, the schedule, the plans, the specifications, and anything else annexed to, or incorporated by reference into, the contract.^[38]
[110]
For the avoidance of doubt, I will refer to the pack as the cost plus contract – level 2 (residential) pack and the individual documents included in the pack as the folder, schedule, appendix, general conditions, and agreement page.
[111]
The documents remaining in the cost plus contract – level 2 (residential) pack were tendered in evidence by NOQH.^[39] They are:
1. the folder;
2. the yellow copy of the schedule, appendix and agreement page (contractor’s copy) which have been removed from the pack but remain with it;
3. the pink copy of the schedule, appendix and agreement page (lending institution’s copy) which remain in the pack; and
4. the white (owner’s copy), yellow (contractor’s copy) and pink (lending institution’s copy) copy of the general conditions, which again remain in the pack.
[112]
The exhibit does not contain a consumer building guide, whether as included in the pack or loose.
[113]
Item 31 of the appendix asks, ‘Has the Owner received the Consumer Building Guide?’ The ‘Yes’ box is crossed. Ms Bowden partly filled out the schedule and appendix prior to the meeting on 26 September 2017. It is not suggested Mr and Mrs Murphy were given the guide prior to the meeting.

The 26 September 2017 meeting

[114]
The parties, in the statement of agreed facts, agree Mr and Mrs Murphy did not receive from NOQH a copy of the general conditions or consumer building guide. NOQH asserts it offered those documents to Mr and Mrs Murphy, but they refused to accept them. Mr and Mrs Murphy assert they were not offered the documents.
[115]
Mr Loiero, in his first statement of evidence, states he ‘... removed the white copy of the Schedule to same and provided it to [Mr and Mrs Murphy].’ The white copies of the schedule, appendix, and agreement page are no longer in the cost plus contract – level 2 (residential) pack exhibit A2. Mr Loiero states he then asked Mr Murphy if he wanted the rest of the Building Works Contract so that he could show it to his bank, meaning the general conditions and pink copy of the schedule.
[116]
In his second statement of evidence, Mr Loiero states, ‘... the whole of the contract was produced, with the schedule then torn out and provided to [Mr and Mrs Murphy] after it had been signed.’
[117]
Mr Loiero stated in evidence the cost plus contract – level 2 (residential) pack purchased by Ms Bowden included the general conditions and consumer building guide. He further stated in evidence those documents were present at the meeting on 26 September 2017 and were offered to Mr and Mrs Murphy.
[118]
I accept the cost plus contract – level 2 (residential) pack included the general conditions, and the document was present at the meeting. All three copies of the document, white, yellow, and pink, remain in the pack exhibit A2. It is clear the agreement page was signed by the parties before the white copies of the schedule, appendix, and agreement page were removed from the pack.
[119]
I also accept QBCC and Master Builders Association being independent organisations does not of itself establish the consumer building guide must have been required to have been obtained separately from the cost plus contract – level 2 (residential) pack. Mr Loiero stated in evidence the guide was included in the pack. Inspection of the pack exhibit A2 shows the documents in the pack were ordered page 1 of the schedule – white copy, yellow copy, pink copy, page 2 of the schedule - white copy, yellow copy, pink copy, and so on. The remains of documents removed from the pack shows the guide was not a document included in the pack able to be removed as were other documents in the pack.
[120]
It follows that if the consumer building guide was present, it was loose and separately purchased or obtained by Ms Bowden. In the absence of evidence from her, I do not accept she did so, whether from Master Builders Queensland or QBCC.
[121]
The cost plus contract – level 2 (residential) pack was purchased by Ms Bowden from Master Builders Queensland the day the contract was signed by the parties. Mr Loiero had not previously used a cost plus contract. The consumer building guide is prepared and published by QBCC. Ms Bowden might have established the guide was purchased or obtained by her and was present during the meeting on 26 September 2017. She did not provide a statement of evidence and did not give evidence at the hearing of the proceeding. It was not suggested she was unavailable. The likelihood is the guide was overlooked.
[122]
I am not satisfied the consumer building guide was present at the meeting.
[123]
Even if I am wrong and both documents were present at the meeting, I do not accept the documents were offered to Mr and Mrs Murphy and they refused to take them. It is most unlikely Mr Murphy, a person experienced in the building industry and building his own home, would accept some documents but refused to accept other documents. I accept Mr Murphy’s evidence the documents were not offered to him and Mrs Murphy by Mr Loiero at the meeting.
[124]
Consistent with the finding made, the white copies of the schedule, appendix and agreement page were given to Mr and Mrs Murphy. The yellow copies of those documents, the contractor’s copies, have been removed from the pack but remain with it. When they were removed is unclear. The three copies of the general conditions sit behind the last page of the lending institution’s copy of the documents, the agreement page. I would have expected the white copy of the general conditions to have been removed from the pack before being offered to Mr and Mrs Murphy and refused by them.
[125]
Further, if the consumer building guide was offered by Mr Loiero to Mr and Mrs Murphy during the meeting but refused by them, I would have expected it to be present as part of exhibit A2.
[126]
In making the finding I have, I am mindful of Mr Murphy’s statement in his statement of evidence to the effect he asked Mr Loiero for copies of the general conditions and consumer building guide during the meeting. I do not accept he did so. Had he asked for the documents, the likelihood, at the very least, is Mr Loiero would have removed the white copy of the general conditions from the cost plus contract – level 2 (residential) pack and given it to Mr Murphy.
[127]
I find the documents were not referred to by either Mr Loiero or Mr and Mrs Murphy during the meeting, consistent with Mr Murphy’s evidence given at the hearing of the proceeding.
[128]
In summary, I find:
1. a.the general conditions were present at the meeting on 26 September 2017;
1. b.the consumer building guide was not present at the meeting; and
1. c.even if the consumer building guide was present at the meeting, neither it nor the general conditions were offered by Mr Loiero to Mr and Mrs Murphy during the meeting

Issue one: Whether, as a matter of law, a person can be estopped from exercising their statutory right to withdraw under section 35(3) of Schedule 1B to the QBCC Act.

[129]
In Halsbury’s Laws of Australia, at [190-25], under the heading Estoppel against statute, it is said:

Estoppel cannot be invoked to negative the operation of a statute. Estoppel by representation or conduct cannot render valid a transaction which is invalid by statute, as no estoppel will prevail against the law. An estoppel by representation or conduct cannot be used to expand the scope of a statutory power nor preclude the exercise of a statutory duty or discretion. Further, there cannot be an issue estoppel against the operation of a statute which creates public rights and duties or which enacts imperative provisions. However, a prior judgement can extinguish a statutory right by way of res judicata and a court may apply Anshun estoppel to preclude reliance on a statutory defence which aught reasonably have been raised in earlier proceedings between the parties. Statutory requirements prescribing formalities for proof of the transactions have not prevented the recognition of interests arising by way of estoppel. (Citations omitted)

[130]
The decision in Kok Hoong concerned a claim for arrears of rent under an agreement to let machinery on hire. The defendant submitted the agreement was in reality a money lending transaction or bill of sale which was void and unenforceable under the applicable legislation. The appellant pleaded an estoppel which came before the Court at first instance to be determined as a preliminary question of law. Viscount Radcliffe delivered the judgement of the Privy Council.
[131]
His Lordship described the issue for determination in the following terms:

The respondent has invoked in support of its defence a principle which appears in our law in many forms, that a party cannot set up an estoppel in the face of a statute. Thus a corporation upon which there is imposed a statutory duty to carry out certain acts in the interest of the public cannot preclude itself by estoppel in pais from performing its duty and asserting legal rights accordingly... Similarly, there is, in most cases, no estoppel against a defendant who wishes to set up the statutory invalidity of some contract or transaction upon which he is being sued, despite the fact that by conduct or other means he would otherwise be bound by estoppel.

...

It does not appear to their Lordships that the principle invoked is confined to transactions that have been made the subject of legislation or that, where legislation is in question, the bare prescription that a transaction is to be void or unenforceable is sufficient by itself to justify the principle’s application. Thus, on the one hand, the common law may itself prohibit the enforcement of certain contracts... On the other hand, there are statutes which, though declaring transactions to be unenforceable or void, are nevertheless not essentially prohibitory and so do not preclude estoppels. One example of these is the Statute of Frauds (see Humphries v Humphries, in which it was no doubt considered that following Leroux v Brown, the statute ought to be treated as regulating procedure, not as striking at essential validity ...^[40]

(Citations omitted)

[132]
It follows from what was said by his Lordship, as was observed to by Hargrave J in Equuscorp Pty Ltd v Belperio^[41], not all statutes which declare a transaction to be unenforceable or void will operate to preclude the establishment of an estoppel against a party seeking to rely upon the statutory invalidity. The question is one of statutory construction, whether the invalidating provision is ‘essentially prohibitory’ or not.
[133]
Viscount Radcliffe articulated the test in the following terms:

It has been said that the question whether an estoppel is to be allowed or not depends on whether the enactment or rule of law relied upon is imposed in the public interest or on grounds of ‘general public policy’ (see In re A Bankruptcy Notice, per Atkin LJ). But a principle as widely stated as this might prove to be rather an elusive guide, since there is no statute, at least public general statute, for which this claim might not be made. In their Lordships’ opinion a more direct test to apply in any case such as the present, where the laws of moneylending or monetary security are involved, is to ask whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise ...

General social policy does from time to time require the denial of legal validity to certain transactions by certain persons. This may be for their own protection, as in the case of infant or other category of persons enjoying what is to some extent a protected status, or for the protection of others who may come to be engaged in dealings with them, as, for instance, the creditors of a bankrupt. In all such cases there is no room for application of another general and familiar principle of the law that a man may, if he wishes, disclaim a statutory provision enacted for his benefit, for what is for a man’s benefit and what is for his protection are not synonymous terms. Nor is it open to the court to give its sanction to departures from any law that reflects such a policy, even though the party concerned has himself behaved in such a way as would otherwise tie his hands ... ^[42]

(Citations omitted, emphasis added)

[134]
The statement of principle found in the passage from the judgement of Viscount Radcliffe set out in the preceding paragraph was applied to the facts in Kok Hoong, as follows:

These principles, as their Lordships understand them, would point very directly to the conclusion that there can be no estoppel in face of the Moneylenders Ordinance, since the provisions on which the respondent seeks to rely render him a ‘protected person’ for this purpose, nor any estoppel in the face of the Bills of Sale Ordinance, the provisions of which, whatever other purposes they may serve, are at least intended for the protection of other creditors who may have dealings with the borrower.^[43]

(Emphasis added)

[135]
In Equuscorp one of the issues falling for determination was whether certain leases required subdivision under the Local Government Act 1919 (NSW) to be valid or enforceable. The plaintiffs asserted the defendants were estopped from resiling from a mutual assumption the leases would be valid or enforceable and did not require subdivision under the Act.
[136]
In reply, the defendants asserted an estoppel cannot stand in the face of the provisions of the Act, rendering the leases unenforceable by reason of the operation of the Act.
[137]
Hargrave J, after referring to the judgement of Viscount Radcliffe in Kok Hoong, concluded the provisions of the Act rendering the leases unenforceable represent a social policy to which the court must give effect in the interests of the public generally or some section of the public.
[138]
After setting out in his judgment the provisions of the Act evidencing the social policy underlying the prohibition on a subdivision otherwise than in accordance with the Act, his Honour observed authorities after Kok Hoong have consistently approved the statement of principle by Viscount Radcliffe and applied it. The authorities include Barilla v James^[44], The Owners - Strata Plan No. 51487 v Broadsand Pty Ltd^[45], Considine v Citicorp Australia Ltd^[46], Beckford Nominees Pty Ltd v Shell Co of Australia Ltd^[47], Keen v Holland^[48] and Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd^[49].
[139]
The decision of the New South Wales Court of Appeal (Meagher, Beazley JJA and Young CJ in Eq) in Overmyer concerned a claim for commission on the sale of a property. The respondent asserted the appellant was not entitled to commission by reason of the prohibition contained in section 42AA of the Property, Stock and Business Agents Act 1941 (NSW). In reply, the appellant asserted the respondent was estopped from relying on the section.
[140]
The judgement of the Court was delivered by Young CJ in Eq. After observing there are a number of authorities to the effect that one can never have an estoppel in the face of a statute, referring to the test to be applied according to the Privy Council in Kok Hoong, and commenting on the decision in Silovi Pty Ltd v Barbaro^[50], his Honour continued:

The English Court of Appeal in Shah v Shah approved a statement of Beldam LJ in Yaxley v Gott that:

“the general principle that a party cannot rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it.”^[51]

(Citations omitted)

[141]
In the present case, his Honour concluded:

It would seem to me almost unarguable that the legislature has made it as plain as plain can be that there is not to be recovery of the remuneration in the instant case and that no estoppel in the face of the statute will lie.^[52]

[142]
In Tudor Developments Pty Ltd v Makeig^[53], a further decision of the New South Wales Court of Appeal (Beasley and Basten JJA and Handley AJA), the appellant, a developer, entered a contract for the sale of land to the respondent without attaching a certificate of insurance required by section 96A(1) of the Home Building Act 1989 (NSW). The section provided such a contract is voidable at the option of the purchaser before completion. The respondent sought to rescind the contract under the section.
[143]
The Court at first instance (Young CJ in Eq) was invited to decide a preliminary question whether estoppel can validly be pleaded against a defendant for a plaintiff’s non-compliance with the section. The Court answered the question in the negative.
[144]
On appeal, Basten JA (with whom Beasley JA agreed; Handley AJA dissenting), after examining the history of the section and concluding it provides little by way of support for the appellant’s argument the power conferred on a purchaser to avoid a contract of sale not accompanied by a certificate of insurance should be read subject to the general law of estoppel, considered what he described as, “… the long history of judicial consideration of analogous statutory provisions …”, commencing with the reasoning of the Privy Council in Kok Hoong. His Honour concluded:

As explained in Kok Hoong, general law principles relating to estoppel do not apply universally in relation to statutory prohibitions or disabilities. Whether they can operate in a particular case will depend upon the construction of the particular statutory provision, in its context and informed by an understanding of its purpose.

Statutes rarely codify the law, so that their operation will often depend upon the continued application of some general law principles. On the other hand, they will also commonly vary the general law, so that inconsistent general law principles will no longer operate.

In the present case, s 96A of the Home Building Act imposed a statutory prohibition subject to a significant penalty for breach, with the purpose of providing protection for those who obtain the benefit of residential building works, usually home owners. Broadly understood, the section provides a form of consumer protection. In some cases, the availability of a severe penalty may be an indication that the penalty and not the invalidation of a contract made as a consequence of a breach was intended to be the machinery for enforcing the Act: see Hurst v Vestcorp Ltd. However that is not the present case, because s 96A(3) expressly renders the contract voidable at the option of the purchaser before completion. The power so conferred is not a power to make an irrevocable election, nor is there any express provision for loss of the power to avoid the contract, otherwise than by completion. Where the Parliament intended there to be some qualification of the unconditional operation of the Act, it expressly so provided, as in s 94(1A). Subsequent to the events relied upon in the present case, s 96A was also amended so as to ameliorate the apparent effects of sub-s (3), by the addition of the new sub-s (3A). The latter amendment, whatever its precise effect, was not expressed in the terms of the equitable principle relied on by the appellant.

This is not a case in which the statute clearly depends upon the continued operation of the general law to be effective. Section 96A expressly qualifies general law provisions which might otherwise have operated with respect to a contract for the sale of land. Where the statute further provides for the consequence of contravention, that provision should be allowed to operate in its terms, which do not import equitable principles from the general law.

The exercise by a purchaser of the power to avoid a contract may give rise to harsh consequences for the vendor in circumstances where the principles of estoppel would have no operation in any event. Accordingly, it cannot be said that Parliament must have intended that those principles apply in order to ameliorate any harsh but foreseeable consequences. Nor is the operation of the section, according to its terms, likely to give rise to economic consequences disadvantageous to the group to be protected, namely purchasers. That is because the exercise of the power is placed in the hands of the purchaser.

(Citations omitted)

[145]
Sultana Investments, a decision of the Queensland Court of Appeal (McMurdo P, Holmes JA and White AJA), concerned a claim for consultancy fees for the successful introduction of buyers for the appellant’s apartment development. The appellant asserted the respondent acted as an unlicensed real estate agent and, by virtue of section 140 of the Property Agents and Motor Dealers Act 2000 (Qld), was not entitled to commission. The respondent, in reply, asserted the appellant was prevented from relying on the section because it had acted to its detriment in relying on the appellant to ensure the agreement between the parties was in conformity with Queensland law. The appellant relied on the general principle a party cannot set up an estoppel in the face of a statute.
[146]
The Court, at [50], referred to the judgement of Viscount Radcliffe in Kok Hoong in most cases there is no estoppel against a defendant who wishes to set up a statutory invalidity of some contract or transaction on which he is being sued even though by conduct or means he could otherwise be the bound by estoppel. It continued:

His Lordship observed that that principle is not confined to what transactions that have been made the subject of legislation; or, where legislation is in question, the bare prescription that a transaction is unenforceable is sufficient by itself to justify application. Whether an estoppel is to be allowed or not will depend on whether the prohibition is imposed in the public interest.

[147]
The approach, the Court observed, was endorsed by the Queensland Full Court in Day Ford.
[148]
The Court, at [53], then continued:

PAMDA legislation is principally for the benefit of consumers. In so far as real estate agents are concerned, those consumers may be buyers or sellers. There is a wider public interest in regulating the activities of real estate agents beyond the particular party or parties to any transaction, for example, into the security of the agent’s trust account and to disclosure of interests which may conflict with those of a buyer or seller. The fees collected for a real estate agent’s licence are directed to the Claims Fund established under the Act to which certain consumers may have resort. There are special provisions which will govern particular contracts, the benefit of which may be waived as in Blackman v Milne. However, s 140 is couched in absolute terms. It is very like provisions in the Queensland Building Services Authority Act 1991 considered by this court in Marshall v Marshall. In that case McPherson JA referred to the public purpose of the legislation in protecting the public from poor workmanship by unlicensed builders by penalising them, and to provide for a fund for claims. On the facts of this case it might be supposed that the consumers to be protected are the investor clients. They make no complaint. There is no reward which the respondent seeks to recover from them. But notwithstanding the disclosure of the fee earned by the successful sale, the respondent was in a position of conflict with its investor clients, something which the Code of Conduct made under PAMDA condemned. The appellant had the benefit of the work done by the respondent in introducing 14 buyers who completed. It lost nothing on the termination of the contracts as the appellant kept the forfeited deposits and subsequently sold those apartments at a higher price. The clear language of the Act, together with the public purpose of the legislation, would, however, dictate that the respondent could not raise an estoppel against the appellant. It may seem an unattractive outcome, but that is the consequence of a legislative decision to require those who act as real estate agents to be licensed, and, if not, to be penalised.

(Citations omitted)

[149]
In Thallon Mole, the parties entered a contract for the construction of an architecturally designed home. Under the contract, the plaintiff (Thallon Mole) was required to obtain the written approval from the defendant (Mrs Morton) (or her authorised representative under the contract) before proceeding with a variation. It did not do so. The absence of a variation in writing, it was contended by Thallon Mole, was overcome by estoppel.
[150]
After referring to section 40 of schedule 1B to the QBCC Act, requiring variations be in writing, the District Court (Muir DCJ) referred to the observations of Macrossan CJ (with whom Kelly SPJ and Ambrose J agreed) in Day Ford insofar as Thallon Mole relied on estoppel:

There is no need to multiply examples by the citation of authorities since the appropriateness of this approach based on consideration of social and statutory policy is so amply supported. In the present case we see that the statute by s. 8 imposed an unconditional prohibition upon the very type of sale which the written contract of May 1988 provided for.

[151]
His Honour the Chief Justice in Day Ford, the Court observed, followed the English line of authority, a reference to the decisions of the Privy Council in Maritime Electric Co v General Dairies Ltd^[54] and Kok Hoong:

… the Court should first of all determine the nature of the obligation imposed by the statute, and then consider whether the admission of an estoppel would nullify the statutory provision.

[152]
Thallon Mole submitted section 40 of schedule 1B to the QBCC Act does not render a contract void or illegal if the variation is not in writing (or even if the contract was to provide for a variation to be oral rather than in writing), underpinned by reference to section 44 of schedule 1B which relevantly provides:

Unless the contrary intention appears in this Act, a failure by a building contractor to comply with a requirement under this Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable.

[153]
The submission, the Court pointed out, overlooks the express provisions of section 108D of the QBCC Act which provides:

108D Contracting out prohibited

A person can not contract out of the provisions of this Act.

A domestic building contract is void to the extent to which it:

is contrary to this Act; or

purports to annul, exclude or change a provision of this Act.

An agreement (other than a domestic building contract) is void to the extent to which it seeks to exclude, change or restrict a right conferred under this Act in relation to a domestic building contract.

Nothing in this section prevents the parties to a domestic building contract from including provisions in the contract that impose greater or more onerous obligations on a building contractor than are imposed under this Act.

Subsections (2) and (3) apply subject to any contrary intention in this Act.

[154]
The Court then continued:

[405]
On a natural and ordinary reading of these provisions, I am satisfied that the admission of an estoppel would effectively exclude, change or restrict Mrs Morton’s statutory right to have a variation in writing and would therefore have the effect of nullifying the express statutory provisions contained in both s. 40 and s. 108D.
[406]
This finding is consistent with an analysis of the nature and obligations of the QBCC Act which can be determined, first, by examining the objects of the Act. (As outlined in the case of Amricama Pty Ltd v Red Carpet Real Estate.)
[407]
Section 3 of the QBCC Act outlines the objects of the Act which include amongst other things; to regulate the building industry, to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers. (At the first reading speech of the Queensland Building Services Authority Bill in 1991, the Honourable T. J. Burns said that the Bill was to provide greater protection for all sides involved in the building process including consumers and that in turn, it would result in greater confidence in the industry from consumers.)
[408]
Section 40 of the QBCC Act was inserted into the Act as part of the Queensland Building and Construction Commission and Other Legislation Amendment Bill 2014. Relevantly, the Amendment Bill also included legislative amendments aimed at improving the commission’s effectiveness at balancing the interests of consumers and the building industry.
[409]
In applying this legislative background to s. 40, it is clear that the purpose of requiring contract variations to be in writing was to enforce minimum standards in the building industry to create certainty and to better balance the interests of consumers with the building industry. While the Act is more generally focused on balancing interests between consumers and builders, this particular section is arguably more focused on consumer protection.
[410]
It is instructive too, that s. 40 of the QBCC Act is identical to s. 79 of the Domestic Building Contracts Act (DBC Act), which was repealed in July 2015. (The DBC Act was repealed in 2015, but a number of sections were amalgamated into the QBCC Act as part of the 2014 Amendment Bill.) The DBC Act, where this section originated, had the purpose of reinforcing consumer protection, as outlined in the second reading speech relevant to that Act as follows:

“The Bill gives consumers a range of rights, without burdening them with unnecessary obligations …

This is a first for Queensland, where contracts with trade contractors have not previously been regulated. It responds to consumer demand, as expressed through complaints about trade contracts …

This Government listens to consumers as well as to industry. And it understands that well informed, confident consumers are the essence of an industry such as building and construction.” (Second reading speech of the DBC Act as read by the Hon. J. C. Spence and contained in the QLD Parliamentary Hansard 1990, pp. 4610 - 4613.)

[411]
Clause 54 of the Amendment Bill 2014 also inserted a new ss. 108D(2) to (5) into the QBCC Act which clarified that a domestic building contract is void to the extent that it is contrary to the Act or purports to vary a provision of the Act. (The Queensland Building and Construction Commission and Other Legislation Amendment Bill 2014 Explanatory Notes, p. 19.) This section encompasses the same purpose as s. 93 of the since repealed DBC Act,which stipulated that a domestic building contract is void to the extent to which it is contrary to the act or purports to annul exclude or change a provision of the Act.

(Citations omitted and footnotes in brackets)

[155]
The Court then referred to the passage from the judgement of the Queensland Court of Appeal in Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd^[55] holding prohibition against contracting out is “… a strong indication …” the Act confers rights which “… it is in the public interest to maintain and thus cannot be eroded by estoppel.”
[156]
Then, the Court referred to the passage from the decision of McGill SC DCJ in M J Arthurs considering whether an estoppel operated against the statutory rights in section 72 of the DBC Act and holding the Act is consumer protection legislation, and by section 93 the parties cannot contract out of section 72 suggesting there can be no estoppel against it.
[157]
The Court held Thallon Mole’s estoppel argument failed as a matter of law, consistent with the reasoning in M J Arthurs.
[158]
The parties appealed to the Queensland Court of Appeal.^[56] In a unanimous decision (Bond and Boddice JJA and Kelly J), the Court observed the primary judge found that whilst Thallon Mole pleaded a variation had been given, there was no evidence of any direction about the variation being given at a site meeting. Notwithstanding the finding, the Court continued, the trial Judge was satisfied Thallon Mole relied on Mrs Morton’s architect’s representation the variation was an acceptable variation under the contract, and Thallon Mole was induced to do so by the representation and would suffer detriment if Mrs Morton was permitted to resiled from the representation. However, Thallon Mole was required under the contract to obtain the written approval from Mrs Morton before carrying out the work and did not do so.
[159]
The Court of Appeal continued:

The primary judge found that an estoppel would effectively exclude, change or restrict Mrs Morton’s statutory rights to have a variation in writing, nullifying the effect of express statutory provisions contained in both s 40 and s 108D of the Queensland Building and Construction Commission Act 1991 (Qld). Accordingly, [Thallon Mole’s] estoppel argument failed as a matter of law.

[160]
The general principle a party cannot rely on an estoppel in the face of a statute is well established. It depends on the nature of the enactment, the purpose of the provision and the social policy behind it.
[161]
Section 35 of schedule 1B to the QBCC Act is couched in precise terms and covers a range of situations. A building owner under a regulated contract may withdraw from the contract within five business days after receiving a copy of the signed contract from the building contractor.^[57] In the case of a level 2 regulated contract, if the building owner does not receive the consumer building guide before receiving a copy of the signed contract, the owner may withdraw from the contract within 5 business days after the day on which the owner receives the consumer building guide.^[58]
[162]
The building owner’s right to withdraw from the contract continues if the documents are not received from the building contractor.^[59] Further, the owner’s right to withdraw from the contract under sections 35(1) and (2) continues even if the owner subsequently receives the documents from the contractor.
[163]
The restrictions affecting the right to withdraw in the cooling-off are spelt out in sections 36(2) and (3). Importantly, waiver of the rights of a building owner under a repair contract to withdraw from the contract are specifically provided for under section 39. Parliament did not provide likewise for a level 2 regulated contract.
[164]
Taking into consideration these provisions of the QBCC Act, and section 108D prohibiting contracting out of the provisions of the Act, I am satisfied the admission of an estoppel would nullify the statutory right of a building owner to withdraw from the contract. In reaching this conclusion, I have had regard to the matters to which the District Court and Court of Appeal had regard in Thallon Mole.
[165]
Also, I have had regard to the purpose and intent of the consumer building guide, ‘… to assist homeowners undertaking domestic building work with a total contract price of $20,000 or more. It’s aimed at helping you avoid disputes and common pitfalls.’
[166]
The QBCC Act, in my opinion, is consumer protection legislation and there can be no estoppel against it. It follows NOQH’s estoppel argument fails as a matter of law.
[167]
The answer to issue one, in my opinion, is ‘no’.

Issue 2: Whether Mr and Mrs Murphy were estopped by their conduct from withdrawing from the Building Works Contract on 3 October 2018 pursuantto section 35(3) of Schedule 1B to theQBCCAct.

[168]
For the reasons outlined in relation to issue one, the answer to issue two, in my opinion, is also ‘no’. Notwithstanding, and for the sake of completeness, I have considered each of the sub-issues of mixed fact and law.

2(a) WhetherMr and Mrs Murphyengagedintheconductallegedinparagraph8(a)(i)of the reply.

[169]
It is alleged in paragraph 8(a)(i) of the reply that Mr and Mrs Murphy engaged in the following conduct:

8(a)(i)A. They signed the Building Works Contract despite the warning provided therein not to sign same unless the Consumer Building Guide had been provided.

[170]
I am satisfied that Mr and Mrs Murphy signed the agreement page. The fact is agreed.
[171]
The printing on the folder contains the following warning:

WARNING:

Consumer Building Guide

The Consumer Building Guide must have been given to the Owner before the signing of this Contract.

[172]
I am not satisfied Mr and Mrs Murphy read the printing on the folder or were given the folder.
[173]
The agreement page contains the following warning:

WARNING

DO NOT SIGN IF:

The owner has not been provided with a Consumer Building Guide.
Foundations Data has not been obtained (if applicable).
The Owner has not been provided with the General Conditions.

[174]
Whilst the evidence is silent on whether Mr and Mrs Murphy read the warning, given its location immediately below their signatures, the likelihood is they did so or with minimum care should have done so.
[175]
Mr and Mrs Murphy, I find, engaged in the conduct alleged in paragraph 8(a)(i)A of the reply.

8(a)(i)B. Mr and Mrs Murphy refused to accept a copy of the complete Building Works Contract and a copy of the Consumer Building Guide from Mr Loiero on around 26 September 2017 on the basis that Mr Murphy had built ‘hundreds of homes’ in his career.

[176]
I have found Mr and Mrs Murphy were not offered, and therefore did not refuse, the general conditions or consumer building guide during the meeting on 26 September 2017. They have been removed from the pack exhibit A2.
[177]
I accept it is likely Mr Murphy said to Mr Loiero he had built ‘hundreds of homes’ in his career, or words to that effect. When he did so, if he did, is unclear. He doing so is not denied by Mr Murphy.
[178]
Mr and Mrs Murphy, I find, did not engage in the conduct alleged in paragraph 8(a)(i)B of the reply.

8(a)(i)C. Mr and Mrs Murphy informed Mr Loiero they were to acquire various supplies through Mr Murphy’s construction company.

[179]
I accept Mr and Mrs Murphy informed Mr Loiero they intended acquiring items for the building work through Mr Murphy’s construction company. Mr Murphy conceded in evidence he did so.
[180]
Mr and Mrs Murphy, I find, engaged in the conduct alleged in paragraph 8(a)(i)C of the reply.

8(a)(i)D. Mr and Mrs Murphy did not request a copy of the Consumer Building Guide or the General Conditions of the Building Works Contract during the Works despite holding a copy of the Agreement section of the Building Works Contract which put them on notice as to the existence of same;

[181]
It is not alleged Mr and Mrs Murphy asked for a copy of the general conditions or consumer building guide during the building work.

[182]
The agreement page contains the warning set out above.

[183]
The conduct alleged to in paragraph 8(a)(i)D of the reply, I find, is established.

8(a)(i)E. Mr and Mrs Murphy made interim payments during the Works pursuant to the Building Works Contract.

8(a)(i)F. Mr and Mrs Murphy took possession of the Dwelling on around 10 June 2018.

[184]
The interim payments made during the building work and the date on which Mr and Mrs Murphy took possession of the building work are admitted. The conduct alleged in paragraphs 8(a)(i)E and F of the reply, I find, is established.

2(b) WhetherMr and Mrs Murphy:

refused to accept a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide from the Applicant upon entry into the Building Works Contract;
were able to view a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide;
requested a copy of the General Conditions of the Building Works Contract or the Consumer Building Guide from the Applicant during the Works.

[185]
I have found Mr Loiero did not offer Mr and Mrs Murphy a copy of the general conditions or consumer building guide during the meeting on 26 September 2017 and, consequently, they did not refuse to accept those documents. The evidence does not disclose whether the general conditions could be viewed by Mr and Mrs Murphy during the meeting or was viewed by them. Given its location in the cost plus contract – level 2 (residential) pack, behind the contractor’s and lending institutions copies of the schedule, appendix, and agreement page, it is unlikely it wase seen by them.
[186]
The evidence does not suggest that Mr and Mrs Murphy asked for a copy of the general conditions or consumer building guide during the building work. It is not otherwise asserted by the parties.

2(c) Whether that conduct, or other conduct by the Respondents, amounted to a representation to the Applicant that the Respondents did not want or need the Consumer Building Guide nor a complete copy of the Building Works Contract or the representations alleged by the Applicant in paragraph 8(a)(i) of the Reply.

2(d) Whether the Applicant relied on those alleged representation/s to its detriment. such that it is unconscionable for the Respondents to resile from them.

[187]
In Crown Melbourne, the plurality (French CJ, Kiefel and Bell JJ) observed it has long been recognised that for a representation to found an estoppel it must be clear. They then continued:

In Low v Bouverie, it was said that the language used must be precise and unambiguous. This does not mean that the words used may not be open to different constructions, but rather that they must be able to be understood in a particular sense by the person to whom the words are addressed. The sense in which they may be understood provides the basis for the assumption or expectation upon which the person to whom they are addressed acts. The words must be capable of misleading a reasonable person in the way that the person relying on the estoppel claims he or she has been misled. The statement that the tenants would be “looked after at renewal time” is not capable of conveying to a reasonable person that the tenants would be offered a further lease.^[60]

(Citations omitted)

[188]
Keane J, in the same decision, at [149], said:

The concern that estoppel should not operate incoherently with the law of contract does not arise where proprietary estoppel is invoked precisely because there is no charter of contractually based rights and obligations governing the parties’ relationship. Even in such cases, however, as Hodgson JA held, the assurance or representation on which the party claiming the benefit of the estoppel relies must be sufficiently clear that the expectation which that party asserts was both actually, and reasonably, engendered by the assurance or representation.

[189]
The principle was expressed by Nettle J in the following terms:

Crown attacked the Court of Appeal’s reasoning at a number of levels. Its starting point was to contend that the tenants had put their estoppel claim in VCAT as a claim of promissory estoppel and that, because the assurance lacked contractual certainty, the claim was bound to fail. Counsel for Crown called in aid Mason and Deane JJ’s statement in Legione that “[t]he requirement that a representation must be clear before it can found an estoppel is ... applicable to any doctrine of promissory estoppel”, and their Honours’ reference with apparent approval to the statement of Lord Denning MR in Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd that a higher standard of clarity is required to found a promissory estoppel than is required to found an agreed variation of contract. In Woodhouse AC, Lord Denning stated that was so because it was clear from Low v Bouverie and Canada and Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships Ltd that a representation must be clear and unequivocal in order to work an estoppel.^[61]

(Citations omitted)

[190]
In Barport Pty Ltd v Baum^[62], a decision of the Victorian Court of Appeal (Kyrou, McLeish and Niall JJA), the principles were restated in the following terms:

In general terms, promissory estoppel and estoppel by representation involve a promise that the relevant party will not rely on or enforce a legal right, or a representation that a given state of fact exists.

It has long been recognised that for a representation to found an estoppel it must be clear. Where the conduct consists of a spoken representation, the words used must be able to be understood in a particular sense by the person to whom the words are addressed. Those words provide the basis for the assumption or expectation upon which the person acts. The representation must be such as to be able to create the assumption or expectation in question.

The requirement for certainty in the representation ensures that the representation can be reasonably understood in the particular sense required and does not operate to underwrite ‘unrealistic expectations or wishful thinking’. Certainty is a reflection of the requirement that the person against whom the estoppel operates must have played such a part in creating the assumption or expectation that it would be unconscionable to depart from it.

It follows that, in order to assess whether a communication has sufficient clarity to carry the claimed representation, it will be necessary to have regard first and foremost to the words that are used, but also to matters of context, including the nature of the legal right that the assumption holds will not be enforced, in order to determine whether the representation was reasonably capable of inducing the relevant assumption.^[63]

[191]
The conduct alleged in paragraph 8(a)(i) of the reply, to the extent I have found Mr and Mrs Murphy engaged in the conduct, in my opinion, does not amount to a representation to NOQH that Mr and Mrs Murphy did not want or need a complete copy of the contract or a copy of the consumer building guide or the representations alleged in paragraph 8(a)(i) of the reply. The conduct, to the extent established by the evidence, does not constitute a promise Mr and Mrs Murphy will not exercise their right to withdraw from the contract under section 35(3) of schedule 1B to the QBCC Act. Further, the conduct established does not constitute a representation with sufficient certainty to found an estoppel.
[192]
The ‘other conduct’ by Mr and Mrs Murphy referred to in paragraph 2(c) of the list of issues to be decided by the Tribunal that might amount to the representations alleged is not identified. The evidence, in my opinion, does not disclose conduct amounting to such representations.
[193]
Even if I am wrong, and Mr and Mrs Murphy engaged in all or any of the conduct alleged in paragraphs 8(a)(i) of the reply or other conduct and the conduct amounted to the representations alleged, neither the conduct nor the representations, in my opinion, displace the statutory right given to Mr and Mrs Murphy to withdraw from the contract under section 35 of schedule 1B to the QBCC Act.

Conclusion

[194]
The answers to the issue to be decided by the Tribunal are as follows:

Issue one: Whether, as a matter of law, a person can be estopped from exercising their statutory right to withdraw under section 35(3) of Schedule 1B to the QBCC Act.

Answer: No.

Issue two: Whether Mr and Mrs Murphy were estopped by their conduct from withdrawing from the Building Works Contract on 3 October 2018 pursuant to section 35(3) of Schedule 1B to the QBCC Act.

Answer: No.

Whether Mr and Mrs Murphy engaged in the conduct alleged in paragraph 8(a)(i) of the reply;

Answer: 8(a)(i)A, C - F Yes.

8(a)(i)B. No.

Whether Mr and Mrs Murphy:

refused to accept a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide from the Applicant upon entry into the Building Works Contract;

Answer: No.

Were able to view a copy of the General Conditions of the Building Works Contract and the Consumer Building Guide;

Answer: No.

Requested a copy of the General Conditions of the Building Works Contract or the Consumer Building Guide from NOQH during the Works.

Answer: No.

Whether that conduct, or other conduct by Mr and Mrs Murphy, amounted to a representation to NOQH that Mr and Mrs Murphy did not want or need the Consumer Building Guide nor a complete copy of the Building Works Contract or the representations alleged by the Applicant in paragraph 8(a)(i) of the Reply;

Answer: No.

Whether NOQH relied on those alleged representation/s to its detriment, such that it is unconscionable for Mr and Mrs Murphy to resile from them.

Answer: No.

[195]
Mr and Mrs Murphy effectively withdrew from the contract. In the circumstances, the parties agree, the appropriate order of the Tribunal is that NOQH pay to Mr and Mrs Murphy $28,373.92, the difference between the amount paid by Mr and Mrs Murphy to NOQH, $651,440.32, and NOQH’s out-of-pocket expenses incurred before the giving of the notice of withdrawal, $623,066.40.

Orders

[196]
The order of the Tribunal is NOQH pay to Mr and Mrs Murphy $28,373.92 within 28 days of this order.
[197]
I further order as follows:

any application for the costs of the proceeding, together with any submissions in support of the application, be filed in the Tribunal and served on the other party by email, by:

24 January 2025.

any submissions in reply to an application for the costs of the proceeding filed in accordance with paragraph (a) be filed in the Tribunal and served on the other party by email, by:

14 February 2025.

any application for the costs of the proceeding filed in accordance with paragraph (a) be decided by the Tribunal on the papers, after:

14 February 2025.

Footnotes

[1] Exhibit A1 is the hearing book. It contains documents numbers 1–10.

[2] The consumer building guide was not separately tendered in evidence at the hearing. A copy of the document was earlier filed in the Tribunal.

[3] Hearing book, doc 3.

[4] Hearing book, doc 6.

[5] Hearing book, doc 7.

[6] Hearing book, doc 8.

[7] Hearing book, doc 9.

[8] Hearing book, doc 10.

[9] [2020] QCAT 339.

[10] [2017] QDC 85 (‘M J Arthurs’).

[11] [2006] QSC 350; [2007] 1 Qd R 198.

[12] [2010] QSC 324.

[13] [2009] QSC 297.

[14] [1990] 2 Qd R 209 (‘Day Ford’).

[15] [2008] QCA 357 (‘Sultana Investments’).

[16] [2022] QCATA 125.

[17] Ibid, at [29].

[18] QBCC Act, sch 1B, s 15.

[19] QBCC Act, sch 1B, s 7(1)(b) and Queensland Building and Construction Commission Regulation 2018 (Qld), s 45.

[20] QBCC Act, sch 1B, s 36.

[21] QBCC Act, sch 1B, s 38(2).

[22] QBCC Act, sch 1B, s 38(3).

[23] QBCC Act, sch 1B, s 38(4).

[24] QBCC Act, sch 1B, s 38(7).

[25] QBCC Act, sch 1B, s 38(8).

[26] [1964] AC 993 (‘Kok Hoong’).

[27] [2002] QB 35.

[28] [2007] VSCA 280.

[29] [2022] QDC 224.

[30] (1933) 49 CLR 507 (‘Thallon Mole’).

[31] [2016] QCAT 143, at [45]-[61] (‘Von Knorring’).

[32] QBCC Act, schedule 1B, ss 15 and 18.

[33] Von Knorring.

[34] QBCC Act, sch 1B, s 36.

[35] (2016) 260 CLR 1 (‘Crown Melbourne’).

[36] [2021] QCATA 143.

[37] (1990) 170 CLR 394.

[38] General conditions, cl 1.

[39] Exhibit A2.

[40] Ibid, at [1015]-[1016].

[41] [2006] VSC 14, at [272] (‘Equuscorp’).

[42] Ibid, at [1016]-[1017].

[43] Ibid, at [1017].

[44] [1964-5] NSWR 741.

[45] [2002] NSWSC 770, at [19]-[22], [36].

[46] [1981] 1 NSWLR 657, at 662.

[47] (1986) 73 ALR 373, at 378-9.

[48] [1984] 1 WLR 251, at 261.

[49] [2003] NSWCA 305, at [51] (‘Overmyer’).

[50] (1988) 13 NSWLR 466.

[51] Ibid, at [54].

[52] Ibid, at [55].

[53] [2008] NSWCA 263.

[54] [1937] AC 610, at 620-621.

[55] [2011] 2 Qd R 114.

[56] Thallon Mole Group Pty Ltd v Morton; Morton v Thallon Mole Group Pty Ltd [2023] QCA 250.

[57] QBCC Act, sch 1B, s 35(1).

[58] QBCC Act, sch 1B, s 35(2).

[59] QBCC Act, sch 1B, s 35(3).

[60] Ibid, at [35].

[61] Ibid, at [210].

[62] [2019] VSCA 167.

[63] See also McPaul v Massignani & Anor [2023] QSC 98, per Bowskill CJ at [34].

Editorial Notes

Published Case Name:
Number One Quality Homes Pty Ltd v Murphy
Shortened Case Name:
Number One Quality Homes Pty Ltd v Murphy
MNC:
[2024] QCAT 605
Court:
QCAT
Judge(s):
Member Scott-Mackenzie
Date:
27 Dec 2024

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Allen v Contrast Constructions Pty Ltd (No 3)	[2021] QCATA 143	2 citations Jump To Cite 1 - [2021] QCATA 143 Cite 2 - [2021] QCATA 143
Barilla v James	[1964-5] NSWR 741	1 citation Jump To Cite 1 - [1964-5] NSWR 741
Barport Pty Ltd v Baum	View on:JADE[2019] VSCA 167	2 citations Jump To Cite 1 - [2019] VSCA 167 Cite 2 - [2019] VSCA 167
Beckford Nominees v Shell Co of Australia	(1986) 73 ALR 373	2 citations Jump To Cite 1 - (1986) 73 ALR 373 Cite 2 - (1986) 73 ALR 373
Blackman v Milne	[2007] 1 Qd R 198; [2006] QSC 350	4 citations Jump To Cite 1 - [2006] QSC 350 Cite 2 - [2006] QSC 350 Cite 3 - [2007] 1 Qd R 198 Cite 4 - [2007] 1 Qd R 198
Collis v Currumbin Investments Pty Ltd	[2009] QSC 297	2 citations Jump To Cite 1 - [2009] QSC 297 Cite 2 - [2009] QSC 297
Commonwealth v Verwayen	View on:JADE(1990) 170 CLR 394	2 citations Jump To Cite 1 - (1990) 170 CLR 394 Cite 2 - (1990) 170 CLR 394
Considine v Citicorp Australia Limited	View on:NSWLR[1981] 1 NSWLR 657	2 citations Jump To Cite 1 - [1981] 1 NSWLR 657 Cite 2 - [1981] 1 NSWLR 657
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd	View on:JADE(2016) 260 CLR 1	2 citations Jump To Cite 1 - (2016) 260 CLR 1 Cite 2 - (2016) 260 CLR 1
Day Ford Pty Ltd v Sciacca	[1990] 2 Qd R 209; [1990] QSCFC 1	2 citations Jump To Cite 1 - [1990] 2 Qd R 209 Cite 2 - [1990] 2 Qd R 209
Equuscorp Pty Ltd v Belperio	View on:JADE[2006] VSC 14	2 citations Jump To Cite 1 - [2006] VSC 14 Cite 2 - [2006] VSC 14
Equuscorp Pty Ltd v Wilmoth Field Warne (a firm)	View on:JADE[2007] VSCA 280	2 citations Jump To Cite 1 - [2007] VSCA 280 Cite 2 - [2007] VSCA 280
Keen v Holland	View on:ICLRUK[1984] 1 WLR 251	2 citations Jump To Cite 1 - [1984] 1 WLR 251 Cite 2 - [1984] 1 WLR 251
Knorring v Baldwin	[2016] QCAT 143	2 citations Jump To Cite 1 - [2016] QCAT 143 Cite 2 - [2016] QCAT 143
Kok Hoong v Leong Cheong Kweng Mines Ltd	View on:ICLRUK(1964) AC 993	2 citations Jump To Cite 1 - (1964) AC 993 Cite 2 - (1964) AC 993
M J Arthurs Pty Ltd v Isenbert	[2017] QDC 85	2 citations Jump To Cite 1 - [2017] QDC 85 Cite 2 - [2017] QDC 85
Marchesi v Viridian Noosa Pty Ltd	[2010] QSC 324	2 citations Jump To Cite 1 - [2010] QSC 324 Cite 2 - [2010] QSC 324
Maritime Electric Co v General Dairies Ltd	View on:ICLRUK(1937) AC 610	2 citations Jump To Cite 1 - (1937) AC 610 Cite 2 - (1937) AC 610
McPaul v Massignani	(2023) 14 QR 332; [2023] QSC 98	1 citation Jump To Cite 1 - [2023] QSC 98
Murphy v Number One Quality Homes Pty Ltd	[2022] QCATA 125	2 citations Jump To Cite 1 - [2022] QCATA 125 Cite 2 - [2022] QCATA 125
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd	[2011] 2 Qd R 114; [2010] QCA 119	1 citation Jump To Cite 1 - [2011] 2 Qd R 114
Number One Quality Homes Pty Ltd v Murphy & Anor	[2020] QCAT 339	2 citations Jump To Cite 1 - [2020] QCAT 339 Cite 2 - [2020] QCAT 339
Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd	View on:JADE[2003] NSWCA 305	2 citations Jump To Cite 1 - [2003] NSWCA 305 Cite 2 - [2003] NSWCA 305
Shah v Shah	View on:ICLRUK[2002] QB 35	2 citations Jump To Cite 1 - [2002] QB 35 Cite 2 - [2002] QB 35
Silovi Pty Ltd v Barbaro	View on:NSWLR(1988) 13 NSWLR 466	2 citations Jump To Cite 1 - (1988) 13 NSWLR 466 Cite 2 - (1988) 13 NSWLR 466
Sultana Investments Pty Ltd v Cellcom Pty Ltd	[2009] 1 Qd R 589; [2008] QCA 357	2 citations Jump To Cite 1 - [2008] QCA 357 Cite 2 - [2008] QCA 357
Thallon Mole Group Pty Ltd v Morton	[2022] QDC 224	2 citations Jump To Cite 1 - [2022] QDC 224 Cite 2 - [2022] QDC 224
Thallon Mole Group Pty Ltd v Morton	[2023] QCA 250	2 citations Jump To Cite 1 - [2023] QCA 250 Cite 2 - [2023] QCA 250
The Owners – Strata Plan No. 51487 v Broadsand Pty Ltd	View on:JADE[2002] NSWSC 770	2 citations Jump To Cite 1 - [2002] NSWSC 770 Cite 2 - [2002] NSWSC 770
Thompson v Palmer	View on:JADE(1933) 49 CLR 507	2 citations Jump To Cite 1 - (1933) 49 CLR 507 Cite 2 - (1933) 49 CLR 507
Tudor Developments Pty Ltd v Makeig	View on:JADE[2008] NSWCA 263	2 citations Jump To Cite 1 - [2008] NSWCA 263 Cite 2 - [2008] NSWCA 263

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Number One Quality Homes Pty Ltd v Murphy[2024] QCAT 605