Partington v Urquhart (No 3)
[2018] QCATA 136
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- Unreported Judgment
- Partington v Urquhart (No 3)[2018] QCATA 136
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Partington v Urquhart (No 3)[2018] QCATA 136
Partington v Urquhart (No 3)[2018] QCATA 136
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Partington & Anor v Urquhart (No 3) [2018] QCATA 136 |
PARTIES: | PHILLIP PARTINGTON (first applicant/appellant) EVELYN PARTINGTON (second applicant/appellant) |
| v |
| JOHN URQUHART T/AS HART RENOVATIONS (respondent) |
APPLICATION NO/S: | APL131-13 |
ORIGINATING | BDL072-10 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 19 September 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard, Presiding |
ORDERS: | IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
THE APPEAL TRIBUNAL DIRECTS THAT:
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT GENERALLY – where matter remitted from Court of Appeal to Appeal Tribunal – where all issues not considered before the Appeal Tribunal as originally constituted – where newly constituted Appeal Tribunal to conduct rehearing CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT – REMEDIES FOR BREACH OF CONTRACT – REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – assessment of quantum meruit claim by builder – assessment of damages including cost of rectification by owner- whether tribunal has power to award interest on quantum meruit award Partington & Anor v Urquhart (No 2) [2018] QCATA 120 |
REPRESENTATION: |
|
Applicant: | S McNeil instructed by Blue Fox Legal |
Respondent: | SB Whitten instructed by Saal & Associates |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]The Appeal Tribunal handed down its decision in this appeal proceeding on 10 August 2018. Our reasons for decision were published.[1] We made the following orders and directions:
IT IS THE ORDER OF THE APPEAL TRIBUNAL THAT:
- The submissions filed by Phillip Partington and Evelyn Partington in July 2017 are struck out.
- Leave to appeal is granted.
- The appeal is allowed.
- (a) Order 1 of the Tribunal dated 19 February 2013 is set aside.
- (b)In substitution of order 1 dated 19 February 2013:
- The Appeal Tribunal declares that:
- John Urquhart t/as Hart Renovations is entitled to a quantum meruit in the sum of $160,162.89;
- Phillip Partington and Evelyn Partington are entitled to damages and interest of $171,938.50;
- The questions of whether interest may be awarded on a quantum meruit, and if so, whether it should be awarded, and if so, in what amount are reserved for further determination on the papers not before:
4:00pm on 24 August 2018.
- (iii)The Appeal Tribunal directs that the parties may file in the Appeal Tribunal and serve on the other party written submissions limited to two (2) A4 pages in 12 point font about the issues referred to in (ii) above, by:
4:00pm on 24 August 2018.
- (iv)The Appeal Tribunal directs that the parties must file in the Appeal Tribunal two (2) copies and serve on the other party written submissions limited to two (2) A4 pages in 12 point font about the form of the final orders to be made in substitution of Tribunal order 1 dated 19 February 2013, setting out details of payments made pursuant to the Tribunal order dated 19 February 2013 to be brought into account, by:
4:00pm on 24 August 2018.
- (v)Further orders will be made in substitution of order 1 dated 19 February 2013 by the Appeal Tribunal, not before:
4:00pm on 24 August 2018.
- Order 2 of the Tribunal decision dated 19 February 2013 is confirmed.
- [2]It is unnecessary to revisit the myriad of issues raised by the appeal proceeding. Suffice it to say here that having discussed our preliminary conclusion that there was no power, we left open the question whether the Tribunal has power to award interest on the quantum meruit that John Urquart trading as Hart Renovations (the builder) is entitled to receive.[2] We have now received the parties’ submissions. The parties acknowledge that there is no basis upon which the Tribunal can award interest on the quantum meruit. Accordingly, we make no award of interest on the quantum meruit claim.
- [3]We sought submissions from the parties about their views concerning the form of final orders because we were unaware whether payments may have been exchanged between the parties given the significant effluxion of time since the original decision. The parties have advised that no payments were made by either party to the other since the Tribunal’s 2013 decision.
- [4]Order 2 of the Tribunal's 2013 decision awarded certain costs thrown away by an adjournment in favour of the builder. We confirmed that order in order 5 of 10 August 2018. The costs were fixed by the Tribunal at $11,693.50 by order dated 11 June 2013. We have taken that outstanding amount into account in formulating our final orders, by adding it to the quantum meruit awarded to the builder.
- [5]We make final orders in the Appeal in these terms:
- Order 3, 4(a) and 4(b)(i) of the Tribunal’s Orders of 10 August 2018 are confirmed.
- (a) On the application for a domestic building dispute of John Urquhart t/as Hart Renovations, Phillip Partington and Evelyn Partington pay to John Urquhart t/as Hart Renovations the sum of $160,162.89;
- on the cross application of Phillip Partington and Evelyn Partington, John Urquhart t/as Hart Renovations pay to Phillip Partington and Evelyn Partington the sum of $171, 938.50, such sum being inclusive of interest;
- the order of the Tribunal dated 11 June 2013 that Phillip Partington and Evelyn Partington pay John Urquhart t/as Hart Renovations $11,693.50 is confirmed;
- in the premises in paragraph 2(a) to 2(c) hereof, the net sum payable by John Urquhart t/as Hart Renovations to Phillip Partington and Evelyn Partington is the sum of $82.11.
- [6]It will be noted that order 2(d) reflects the summation of the sums payable pursuant to 2(a) to 2(c).
Costs of the Appeal Proceedings
- [7]Phillip and Evelyn Partington (the homeowners) now seek an order for their costs of the appeal proceedings. They submit that they have incurred more than $110,000.00 in legal costs in relation to the appeal. However, they seek the opportunity to make further submissions on their application. The builder has not yet had an opportunity to make submissions in respect of the application.
- [8]Accordingly, we make directions for the filing of further submissions by the homeowners in relation to their application for costs of the appeal proceedings, as well as for builder to provide his submissions. The application for costs will be determined once those submissions have been received.