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Piper v Hookham Constructions Pty Ltd[2015] QCATA 77

Piper v Hookham Constructions Pty Ltd[2015] QCATA 77

CITATION:

Piper v Hookham Constructions Pty Ltd [2015] QCATA 77

PARTIES:

Darryl Piper

(Appellant)

v

Hookham Constructions Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL277-14

MATTER TYPE:

Appeals

HEARING DATE:

13 March 2015

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

Acting Senior Member Browne

DELIVERED ON:

12 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Application to adduce further evidence is refused.
  2. Appeal allowed.
  3. The decision of the Tribunal made on 21 May 2014 is set aside and the matter is to be returned to the tribunal for reconsideration according to law and the findings disclosed in these reasons for judgment.

CATCHWORDS:

APPEAL – BUILDING DISPUTE – QUESTIONS OF LAW – where contract for the construction of units – where contract provided an amount for delay damages – where change to the building works – where Tribunal found time for completion was extended by agreement – whether grounds to appeal

Domestic Building Contracts Act 2000 (Qld) s 18, s 79, s 80, s 81, s 82 s 84

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; cited

Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93; cited

Pickering v McArthur [2005] QCA 294; cited

Piper v Hookham Constructions Pty Ltd [2014] QCAT 215; cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; cited

REPRESENTATIVES:

APPLICANT:

Mr Piper represented by Mr S Hatfield, Solicitor of Skelton Law

RESPONDENT:

Hookham Constructions Pty Ltd represented by Mr R Gordon of legal counsel instructed by Aitken Whyte Lawyers

REASONS FOR DECISION

  1. [1]
    Mr Piper had plans to demolish the house he was living in and construct three units on the land. He engaged Hookham Constructions Pty Ltd (the builder) and signed a contract not long before building commenced on 13 May 2011.
  2. [2]
    There was a provision in the contract for late completion damages. This meant that the builder had to pay Mr Piper money if the works were delayed in certain circumstances.
  3. [3]
    After the building work was completed, the builder sent an invoice to Mr Piper for final payment. Mr Piper did not pay the invoice because he said that there was an amount owing to him for late completion damages.
  4. [4]
    Mr Piper filed an application in the Tribunal seeking an order that the builder pay late completion damages.[1] The builder disputed Mr Piper’s application and filed a counter-claim.[2]
  5. [5]
    Mr Piper’s application was not successful. The Tribunal made an order on 21 May 2014 that Mr Piper pay the builder the amount of $95,516.63.[3]
  6. [6]
    Mr Piper wants to appeal that decision. There are five separate grounds of appeal, some of which raise errors of law and some are mixed fact and law for which leave is required. At the oral hearing the issues were narrowed to simply whether non-compliance with the Domestic Building Contracts Act 2000 (Qld) (DBC Act) or contract has the effect that a variation is void or of no legal affect. The Appeal Tribunal made directions by consent for the filing of further written submissions by the parties to address the issue.[4]
  7. [7]
    Mr Piper says that the learned Senior Member erred in finding that the parties impliedly agreed by their conduct to vary the building period. He says that the finding was wrong and the agreement was ‘void or of no legal effect’ because the builder did not comply with the contract or the DBC Act.[5] He also says there was no written variation document signed by the parties and there was no application before the Tribunal to extend time under the contract as required under s 18(6)(b) of the DBC Act.
  8. [8]
    The builder says that it did comply with the contract. The builder says there was a change in the building works (after the contract was signed) because the project was split in two stages to accommodate Mr Piper and to allow him to reside in one unit while the other two units were being built. The builder argues that it did give Mr Piper notice of an extension of time in which to complete the building works pursuant to the contract. The builder says that a change in the number of days in which to complete the building works under the contract is not a variation because it is not a change ‘in subject works’.[6] The builder says that it did ‘inform’ Mr Piper that the timetable of 210 days for completion was ‘no longer achievable’ as a result of the project being split into two stages.[7]

What were the findings made by the learned Senior Member?

  1. [9]
    The learned Senior Member made findings that there was a variation to the contract works because there was a change by agreement to complete the building works as a two-stage project.[8] He found that the time for completion of 210 days was no longer applicable because there was a variation by agreement.[9] These findings raise questions of law because it involves an interpretation of the contract and the DBC Act.
  2. [10]
    The learned Senior Member also made findings about a notice or letter sent by the builder to Mr Piper setting out the change to the building works and stating that the timetable of 210 days was ‘no longer achievable’.[10] He found that there was no evidence from Mr Piper to challenge the evidence of Hugh Hookham (for the builder) about the letter. These findings involve questions of mixed fact and law for which leave is required. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[11] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[12]

What were the issues and evidence before the learned Senior Member at the hearing?

  1. [11]
    The Tribunal’s reasons identify the issues and evidence that was before the learned Senior Member. Mr Piper argued that late completion damages were payable by the builder under item 11 of the contract because the building work was not completed within 210 days.[13] Mr Piper argued that the builder had to comply with the ‘original timeframe’ and if there was a variation, ‘this was not done in strict compliance with the contract or s 18 of the [DBC Act]’.[14]
  2. [12]
    Mr Piper said in his statement that there was an agreement reached between himself and the builder that the construction would be divided into two separate stages of construction.[15] He said that the builder was ‘aware’ from the beginning that the development was a two stage process and there was no variation to the original construction period of 210 days.[16]
  3. [13]
    The Tribunal’s reasons show that the builder argued in response that the contractual requirement to complete the building work in 210 days was ‘varied’ because there was a change from building all three units in one stage, to a two stage process.[17]
  4. [14]
    Mr Hookham said in his statement (for the builder) that Mr Piper confirmed that he ‘wished’ to build the units in two stages beginning with unit 3 and ‘had decided’ to leave the house that was existing on the block at the front so that he (Mr Piper) could remain living there.[18]
  5. [15]
    Mr Hookham said that there was a change in the plans because there was not enough room to complete the driveway down the side to access the rear block with the house at the front remaining. Mr Hookham said the plans were redrawn and the whole development ‘reversed’ so that the driveway was now on the right of the block.[19]
  6. [16]
    Mr Hookham disputed that there was a ‘common understanding’ that the original 210 day construction period would apply to the changed schedule of works. He said the contract and its contents were negotiated prior to the changes requested by Mr Piper.[20] Mr Hookham said that the first (time) he or his office knew there was any dispute about liquidated damages or a completion date was when he received a letter from (Mr Piper’s) solicitors claiming liquidated damages.[21]
  7. [17]
    Mr Hookham relied on a letter that was not signed by Mr Piper titled ‘variation to construction schedule’ dated 4 November 2011 (the variation letter). Mr Hookham attached a copy of the letter referred to as a ‘hardcopy kept on file’ to his statement. Mr Hookham said that the letter was sent to Mr Piper and that it was not ‘unusual to not have a response from [Mr] Piper as he regularly claimed he had not received invoices and requested they be sent again’.[22]
  8. [18]
    Mr Piper said in his statement that he never received the variation letter either by email, post or personally.[23] Mr Piper said that he never received ‘an extension of time pursuant to Clause 17 of the Contract’.[24]
  9. [19]
    The learned Senior Member made findings about the variation letter. He found that there were discussions between Mr Hookham and Mr Piper about splitting the project into two stages and that the ‘evidence to support this’ is contained in the variation letter.[25] He found that there was no evidence from Mr Piper to ‘challenge this contention’[26] and found that Mr Piper made no challenge to the request for the extension of time when it was made.[27]
  10. [20]
    The learned Senior Member also made findings about the time for completion. He found that the ‘original timeframe, if only by the conduct of the parties, could not apply’.[28] He found that the contract had been varied and the plans had to be changed.[29]
  11. [21]
    Findings were made by the learned Senior Member about clause 17.3 of the contract that requires the builder to give the owner (Mr Piper) written notice of the extension of time under the contract. The learned Senior Member found that clause 17.3 had no application ‘in any event’[30] because the clause ‘contemplates’ that an extension of time is necessary when the parties have agreed a specific time for completion. He ultimately found that Mr Piper had ‘acquiesced or impliedly agreed that the original timetable of 210 days was to no longer be applicable to these works’.[31]

Was there an error in the interpretation of the contract or the Domestic Building Contracts Act 2000?

  1. [22]
    In ultimately finding that the time for the contract (for completion) was extended ‘by the change in the way in which the contract was to be performed’,[32] the learned Senior Member did not consider the contract and the DBC Act applicable to variations made at the builder’s request.
  2. [23]
    Clause 20 of the contract requires a variation document to include certain information about the work required and whether there will be a delay because of the variation. Clause 20.3 of the contract requires the owner to sign the variation document in circumstances where the builder has requested the variation and the owner agrees to the builder’s request.
  3. [24]
    There are requirements under the DBC Act for variations to be in writing, including a requirement that the variation comply with the ‘formal requirements for a variation document’. Section 82 of the DBC Act requires the builder as soon as practicable after ‘an appropriate variation document is made’ to take ‘all reasonable steps’ to ensure the document is signed by the owner.[33] 
  4. [25]
    As we have said, the reasons show the builder argued at the hearing before the learned Senior Member that the time of 210 days to complete the work was ‘varied’ because there was a change in the building works. The learned Senior Member did not consider whether the builder had complied with the variation provisions under the contract and the DBC Act in finding that there had been a change in the works.
  5. [26]
    The builder’s variation letter dated 4 November 2011 that Mr Hookham said was given to Mr Piper does not comply with clause 20 of the contract and the DBC Act because it does not provide all of the information required such as ‘a reasonable estimate of [a] delay’; and the letter is not signed by Mr Piper. The learned Senior Member found that Mr Piper made ‘no challenge’ to the builder’s ‘request’ for the extension of time when it was made (in the variation letter). The learned Senior Member did not consider the contested evidence of Mr Piper. Mr Piper said in his statement that he did not receive the variation letter.
  6. [27]
    The learned Senior Member did not properly consider the DBC Act in finding that the timetable of 210 days was no longer applicable. The DBC Act required the builder to make an application to extend time because there had been a change or variation to the building works and the builder had not complied with the variation provisions of the contract.
  7. [28]
    Section 18(6) of the DBC Act provides that if the contract is varied but the builder has not complied with a ‘variation provision’ for the variation, the stated completion date or period ‘may, with the tribunal’s approval given on an application made, as provided under the QCAT Act’, be adjusted to take account of ‘any additional days’ required to carry out the work. There was no application under s 18 of the DBC Act made by the builder at the hearing before the learned Senior Member.
  8. [29]
    At the oral hearing Mr Gordon, on behalf of the builder, argued that the word ‘may’ as it appears in s 18(6)(b) of the DBC Act suggests that there is a discretion for the Tribunal to proceed (under s 18(6)) to adjust the building period with or without an application. This submission is not consistent with the language and purpose of all of the provisions of the DBC Act when viewed as a whole.[34] Section 18(10) provides that the Tribunal ‘may’ give approval under s 18(6)(b) if it is ‘satisfied’ as to certain factors set out under s 18(10)(a). Section 18(1) involves an exercise of a discretion to adjust the building period upon application being made (by the builder). The wording of s 18(6) in viewing the section as a whole would require a party such as the builder to make an application, as provided, to the Tribunal seeking approval to adjust the time to carry out the work.
  9. [30]
    There was no application by the builder before the learned Senior Member in relation to adjusting the completion date as required under s 18(6) of the DBC Act. The learned Senior Member’s finding that the parties ‘acquiesced or impliedly agreed’ to vary the building period does not have the effect of extending the time because the builder did not comply with the contract or the DBC Act.

Fresh evidence

  1. [31]
    Mr Piper has filed a statement together with his written submissions in response.[35] The statement of Darryl Piper dated 10 February 2015 is fresh or new evidence that was not before the learned Senior Member. At the oral hearing, Mr Piper made an application for leave to rely on the statement.
  1. [32]
    There are established principles to be considered in determining whether leave to adduce further evidence should be granted. In Ellis & Anor v Queensland Building Services Authority[36] the Appeal Tribunal identified the circumstances in which new evidence will be permitted:

It could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and the evidence is apparently credible, although not necessarily incontrovertible.[37]

  1. [33]
    The statement of Mr Piper relates to an alleged conversation that took place between himself and Mr Hookham that is relevant to the progress of works and the amount claimed by Mr Piper for liquidated damages. The issue of how the building work was to proceed and Mr Piper’s entitlement to any damages was a live issue at the hearing before the learned Senior Member and Mr Piper had an opportunity to adduce evidence at the hearing.
  1. [34]
    We are not satisfied that the principles in determining whether leave should be given to rely on the further statement have been established. The evidence could have been obtained at the hearing. Mr Piper raises no new issues in his statement and it is unlikely that the statement, if allowed, would have an important influence on the merits of this appeal. Leave to rely on the further statement is refused.

Conclusion

  1. [35]
    As we have said, the learned Senior Member found the time for completion of 210 days was no longer applicable because there was a change (by agreement) to the contract in that the building works were to be performed as a two-stage project.
  2. [36]
    The conclusion by the learned Senior Member that there was a change in the building works ‘by agreement or acquiescence’ was in error because the learned Senior Member did not consider the relevant provisions of the contract and the DBC Act. The builder did not comply with the variation provisions of the contract and the DBC Act.
  3. [37]
    The ultimate finding by the learned Senior Member that the time for completion of 210 days was no longer applicable is an error of law because there was no application before the learned Senior Member to adjust the building period as required under s 18(6)(b) of the DBC Act. The appeal is allowed.
  4. [38]
    The learned Senior Member also made findings about the variation letter sent by the builder that was relevant to the change in the building works. He found that Mr Piper by his conduct ‘has acquiesced or impliedly agreed’ that there was a variation to the contract to extend the time for completion because there was no evidence (from Mr Piper) to challenge the builder’s request for an extension of time (in the variation letter). The variation letter that Mr Hookham said was sent to Mr Piper referred to the changes in the ‘development’ and stated that the ‘timetable for 210 days’ is no longer achievable. The learned Senior Member found that clause 17.3 of the contract had no application because of the variation to the original timetable of 210 days.
  5. [39]
    As we have said there was evidence about the variation letter in Mr Piper’s statement. Mr Piper said he did not receive the letter. The learned Senior Member did not consider the contradictory evidence of Mr Piper in finding that ‘by agreement’ the 210 days was no longer applicable. We are satisfied that there is a ‘reasonable argument’ that the learned Senior Member’s finding about the time of 210 days is attended by error and that leave to appeal is necessary to correct a ‘substantial injustice.[38] Leave to appeal is granted.
  6. [40]
    The appeal is allowed. Because one of the grounds of appeal involves an error of law the decision of the Tribunal made on 21 May 2014 should be set aside and the matter returned to the tribunal for reconsideration according to law and the findings disclosed in these reasons.[39]

Footnotes

[1]  The application for domestic building dispute filed on 15 May 2013. Mr Piper claims $87,278.12 for ‘loss and damage in the sum of $76,000.00 being late completion of damages pursuant to item 11 of the Contract, at $200.00 per day from the practical completion date of 6 February 2012 to the actual date of practical completion of 20 February 2013, being 380 days’. See attachment to the application, p 2.

[2]  Response and counter-application filed 4 July 2013. The builder claims $87,278 for the final payment plus $4,750.00 for the QLeave.

[3] Piper v Hookham Constructions Pty Ltd [2014] QCAT 215.

[4]  Final written submissions were received on 16 April 2015.

[5]  Further submissions regarding variation to building period filed by Mr Piper on 27 March 2015, [21].

[6]  Submissions regarding non-compliance with the Domestic Building Contracts Act 2000 (Qld) on behalf of the respondent filed on 10 April 2015, [7].

[7]  Ibid, [13].

[8]  Reasons for decision, [35].

[9]  Ibid, [34], [35].

[10]  Ibid, [12].

[11] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[12] Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[13] The claim for late completion damages was in the amount of $76,000 plus interest of $9,578.08. See reasons for decision, [3].

[14]  Reasons for decision, [4].

[15]  Statement of Darryl Piper dated 30 July 2013, Exhibit ‘3’, p 1.

[16]  Ibid.

[17]  Reasons for decision, [4].

[18]  Statement of Hugh Hookham dated 13 December 2013, Exhibit ‘6’, p 1.

[19]  Ibid, p 3.

[20]  Ibid.

[21]  Ibid.

[22]  Ibid, Attachment marked ‘H’.

[23]  Statement of Darryl Piper dated 30 July 2013, Exhibit ‘3’, p 2.

[24]  Ibid.

[25]  Reasons for decision, [11].

[26]  Ibid, [12].

[27]  Ibid, [32].

[28]  Ibid, [12].

[29]  Ibid, [13].

[30]  Ibid, [32] and [33].

[31]  Ibid, [34].

[32]  Reasons for decision, [58].

[33]  DBC Act ss 79, 80, 81, 82.

[34] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381, [69]  per McHugh, Gummow, Kirby and Hayne JJ.

[35]  Statement of Darryl Piper dated 10 February 2015 filed 2 March 2015.

[36]  [2010] QCATA 93.

[37] Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 at [7], see Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, at 408.

[38] Pickering v McArthur [2005] QCA 294, [3].

[39]  QCAT Act s 146(c).

Close

Editorial Notes

  • Published Case Name:

    Darryl Piper v Hookham Constructions Pty Ltd

  • Shortened Case Name:

    Piper v Hookham Constructions Pty Ltd

  • MNC:

    [2015] QCATA 77

  • Court:

    QCATA

  • Judge(s):

    Thomas P

  • Date:

    12 Jun 2015

Appeal Status

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

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