Catchwords

Domestic Building Contracts Act 2000 (Qld) – entitlement to claim outside of statute

Significance

It was held that section 84(2) of the Domestic Building Contracts Act 2000 (Qld) (Act) excludes any contractual or restitutionary remedy where the plaintiff fails to comply with the pre-requisites to recovery set out in that section.

Facts

Thompson Residential Pty Ltd (plaintiff) contracted with Tran (defendant) for the construction of a house.  It was agreed the contract was regulated by the Act.

The defendant terminated the contract when the work was almost complete.

The plaintiff claimed compensation for the construction of the works and $286,533 for variations to the contract work.

The defendant relied on section 84(2) of the Act, which states that a builder is only able to recover an amount for a variation where:

  • it has complied with sections 79, 80, 82 and 83 of the Act; or
  • it makes an application to the Queensland Civil and Administrative Tribunal (QCAT) which is approved.

The plaintiff had not complied with these prerequisites to recovery set out in section 84(2) of the Act.  It had not complied with the relevant sections of the Act, which require a variation to be put in writing, comply with formal requirements regarding price, and be signed by the builder, a copy to be given to the owner within five business days.  Further, the plaintiff had not made an application to QCAT.

Decision

The question for the court was whether section 84(2) of the Act excludes any liability of the defendant for the claim in restitution brought under general law.

McGill J ordered that this question be decided separately and in advance of the trial.  His Honour further ordered that the question be answered 'yes'.  The claims in respect of variations were struck out of the statement of claim.

It was held that section 84(2) operated to restrict the plaintiffs to the specific statutory restitutionary claim under the Act which required an application to QCAT.

McGill J stated that it is only with clear words, or by necessary implication, that a statute will be found to limit common law rights.  However, in this instance, the words in section 84(2) are quite clear. There is also previous authority for the proposition that the Act excludes any general law restitutionary or contractual claim.