Cai v Homecorp Constructions Pty Ltd [2025] QCAT 49

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cai v Homecorp Constructions Pty Ltd [2025] QCAT 49 PARTIES: WENMIN CAI (applicant) v HOMECORP CONSTRUCTIONS PTY LTD (respondent) APPLICATION NO: BDL286-23 MATTER TYPE: Building matters DELIVERED ON: 29 January 2025 HEARING DATE: On the papers DECISION OF: Member Taylor ORDERS: The applicant’s Application for Domestic Building Dispute filed 4 September 2023 is dismissed. CATCHWORDS: CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where a home owner entered into a building contract to construct a house on land which at the time of contract was not a registered lot – where the owner had paid a deposit under that building contract – where the building contractor went into liquidation before construction of the house commenced – where the owner subsequently entered into a new building contractor with a second contractor – where the second contractor did not require payment as deposit under the second building contract of the amount the owner had paid as a deposit under the first building contract - where the land was subject of a contract of purchase with a sunset date attached to it – where the lot was not registered by the sunset date resulting in the land sale contract being terminated – where the second building contract was subsequently terminated – where the homeowner sought a refund from the second building contractor of the deposit paid under the first building contract – where the owner relied on terms of the second building contract as the premise for the refund claim – where the owner’s action was a renunciation of the second building contract – where the second contractor accepted that action and terminated the contract – where in the alternative the parties mutually discharged the contract - whether the second building contractor is liable to the owner for the amount of the deposit paid under the first building contract -- 1 of 14 -- 2 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 Shevill v Builders Licensing Board (1982) 149 CLR 620 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] There are four proceedings in this Tribunal that ran together, each premised on similar facts and circumstances. Whilst the applicants are different, they all involve the same respondent. This is one of them. The others are BDL 287-23 – Chen v Homecorp; BDL 291-23 – Zhang & Anor v Homecorp; and BDL 293-23 – Luo v Homecorp. [2] The material filed for each of the applicants in the four matters was effectively identical in its format and content save only for the unique references therein to names of the applicants, the relevant property addresses, and dates and details of relevant contract and corresponding events.1 Given such, I infer it was prepared by the same advisor to the applicants, and as will be apparent on reading of these reasons I infer that each of the applicants relied on at least one set of communications by one of the applicants with Homecorp during the course of events which ultimately led to these four separate proceedings. [3] By a Consent Direction made 22 January 2024 by this Tribunal, such following a single Compulsory Conference involving the parties in all four matters, it was directed that: (a) these four matters would travel, heard, and be decided together; and (b) unless otherwise ordered, the applications were to be determined on the papers, without an oral hearing, based on the written evidence and submissions of the parties. [4] By a Direction given 2 May 2024, the second of those directions was confirmed. [5] It is against that background that these four matters came before me for determination on the papers. Whilst each of the matters was considered and decided by me simultaneously with the other three, for simplicity in drafting and ease of understanding by each of the applicants of my reasons for the decision I reached, I prepared a separate set of reasons with the detail therein pertaining solely to the relevant facts and circumstances in their matter only. Given what I said earlier about the format and content of the parties’ respective material being the same, my reasoning in each is essentially identical with the outcome being the same in each. 1 There was one specific difference in this matter to the Chen and Zhang matters. Whilst all applicants asserted that Homecorp issued two receipts for each of the deposits paid, in Cai’s material only one receipt copy was included. This required some discussion in dealing with the absence of that receipt that does not appear in the other matters. Notwithstanding that difference, ultimately nothing turns on it as between each of the four matters. -- 2 of 14 -- 3 Overview [6] The applicant (Cai) paid a deposit to Privium Pty Ltd t/as Impact Homes (Privium) of $16,286.40 for construction of a house on land Cai purchased ‘off the plan’, then subsequently entered into a contract for purchase of the relevant piece of land. [7] The land sale contract was subject to a sunset date. It provided that if the subdivision plan was not registered by that date, and so the parcel of land on which the house was to be built not effectively created as a separate titled lot, the land sale contract was subject to termination. [8] After Cai had that deposit, Privium went into liquidation. Cai asserts that another builder, the respondent (Homecorp), took over the responsibility for construction of the house and, in doing so, the deposit. But the house was never built because the lot was not registered by the sunset date and so the land sale never occurred. [9] Cai sought recovery from Homecorp of the deposit paid to Privium. Homecorp refused to repay it. It asserted it never received payment of that deposit. A subsequent application by Cai to the Queensland Building and Construction Commission under the Home Warranty Insurance Scheme was unsuccessful. Cai thus commenced this proceeding in this Tribunal for recovery of the $16,286.40 paid, such expressed as a claim for an amount owing under the contract with Homecorp. [10] For the reasons given herein Cai fails in this proceeding. On the facts as they appeared in the material before this Tribunal, whilst there is a contractual entitlement to a refund of a deposit paid under the building contract with Homecorp, such being in circumstances where the land sale contract did not proceed to completion, the conduct of the parties, particularly that of Cai, was such that the entitlement was not enlivened. Thus ultimately it did not matter whether the deposit paid to Privium was received or not by Homecorp and whether or not Homecorp might have been said to be liable for its refund following the house construction not proceeding. Accordingly an order was made dismissing Cai’s application to this Tribunal. Relevant Facts and Circumstances [11] On 8 June 2021, Cai entered into a contract with Privium to construct a new house for the fixed price of $325,728 (the First Building Contract) on land at Lot 22 Devries Road Subdivision, Pallara, Qld (the Land).2 [12] On 21 June 2021, Cai paid a deposit of $16,286.40 to Privium under that contract, it being 5% of the contract price (the First Deposit).3 [13] On 10 August 2021, Cai entered into a contract to purchase the Land (the Land Contract).4 That contract contained the following relevant terms: (a) a ‘Sunset Date’, specified therein as being the date which is eighteen (18) months from the date of formation of the Land Contract: 2 Cai’s submissions filed 5 March 2024 – para 4. A copy of what is said to be the original building contract is annexed to the Deed of Novation which I refer to later in these reasons. 3 Ibid para 4. What is said to be a ‘receipt’ for payment of the Deposit is contained in Attachment 2. 4 Ibid para 3 – Attachment 1. -- 3 of 14 -- 4 (b) the contract was subject to the Seller completing the development and registering the Plan of Survey, thus creating a separate title for the relevant Lot, on or before 5:00 pm on the Sunset Date; and (c) in the event such was not achieved, either party may by written notice to the other terminate the contract. [14] On 26 October 2021, a Xinjie Liu of Privium sent an e-mail to Ausproud Real Estate5 to which was attached a letter shown as being on Privium letterhead dated 22 October 2021 addressed ‘To our valued client’. In that letter which the following statements appear:6 We are writing to advise that we are in the final stages of a collaboration with a fellow building and development company, Homecorp Constructions. … Whilst this is a collaboration, the brand that we will now be working under is the Homecorp brand. For this reason, there is a need to novate your contract to Homecorp Construction to ensure that all the works under the Contract are undertaken in a timely manner. [15] On a date which is not specified nor otherwise shown on any of the material filed, Cai signed a Deed of Novation. Therein it named Cai as the ‘Owner’, Privium as the ‘Outgoing Contractor’, and Homecorp as the ‘Incoming Contractor’, expressing the following in its recitals (the Deed of Novation):7 The Outgoing Contractor and the Owner entered into a Build Contract to construct a dwelling on the Property. At the request of the Outgoing Contractor, the Incoming Contract has agreed to assume all of the rights, interests and obligations of the Outgoing Contractor under the Build Contract to construct a dwelling on the Property. By this Deed the parties wish to novate the Build Contract on the terms and conditions of this Deed. [16] On 17 November 2021, Privium entered into voluntary administration.8 5 I infer that Ausproud Real Estate acted as the agent / representative for each of the applicants in each of the four proceedings I have dealt with as discussed in paragraphs [1] and [2] herein. Elsewhere in these reasons and in the parties’ respective material there are references to A&J Realty, which acted as agent / representative. It is unclear to me as to whether these are separate entities or are the same, although from the manner of presentation of the material I infer they are the same. However even if I am wrong about that nothing turns on it. In all relevant instances the entity acted as agent for the applicant. 6 Cai’s submissions filed 5 March 2024 para 6 – Attachment 4. 7 Ibid para 6 – Attachment 5. The ‘Build Contract’ is defined therein as the document annexed to the Deed, which on my reading of that document it is the First Building Contract. There is nothing in the material before me which informs me as to the source of this Deed, nor the means by which, nor the date on which, Cai received it. 8 Ibid – see Attachment 3. -- 4 of 14 -- 5 [17] On or about 15 December 2021, what is shown to be between one of the parties to the four matters before me that I referred to earlier herein, but not Cai, and a representative of Homecorp, an exchange of e-mails occurred:9 (a) in response to the following ‘question’ posed about a second building contract: How about the deposit paid previously to privium (sic). We signed the deed of novation before and this should be transferred into Homecorp. (b) Homecorp responded with the following statement: There is no need to pay the deposit again, Homecorp will issue an (sic) receipt to you as evidence of payment. [18] On 22 December 2021, Privium entered into liquidation.10 [19] Whilst Cai signed the Deed of Novation, it was not signed for either Privium or Homecorp. [20] On 18 January 2022, Cai and Homecorp entered into a building contract under which Homecorp would construct the house which was the subject of the First Building Contract, on the Land, but for a price of $402,728 (the Second Building Contract).11 [21] By way of a Tax Invoice dated 20 December 2021 Homecorp issued to Cai a claim for payment of what is said to be a ‘Deposit’ of $20,136.40 against a contract priced at $402,728, which I thus infer was a reference to the Second Building Contract, relative to the Land.12 [22] On 25 January 2022, Cai paid $3,850 to Homecorp, such being the difference between the $20,136.40 deposit invoiced and the $16,286.40 paid as the First Deposit (the Second Deposit).13 [23] Cai asserts that on 22 February 2022 Homecorp issued receipts for both the First Deposit and the Second Deposit.14 [24] On 13 February 2023, the Land Contract was terminated.15 9 Ibid para 10 – Attachment 7. I infer that this query was raised in response to the provision of a draft version of what I refer to shortly herein as the Second Building Contract. There is nothing in the material before me to inform me as to when and to whom a draft version was provided. 10 Ibid para 5 – Attachment 3. 11 Ibid para’s 7 and 8 – Attachment 6. 12 A copy of this Tax Invoice is included within Cai’s submissions as part of Attachment 6, it showing as having been signed via DocSign by Cai together with other documents evidencing the Second Building Contract. There is nothing contained in the material to explain why it is dated 20 December 2021, thus predating the date on which Privium entered into liquidation. 13 Cai’s submissions filed 5 March 2024 - para 11. 14 Ibid para’s 13 and 14. 15 Ibid para 15. In Cai’s Submissions the termination date is said to be 21 February 2023. The reference to this date is confusing because the submission also refers to and annexes e-mails of 13 and 16 February 2023 which I infer emanated from the developer’s solicitor confirming termination by Cai and giving effect to refund of $16,950, being the amount stated as being the deposit under the Land Contract. I also infer that the error has emanated from the fact that, as I discussed it earlier, four separate matters seemingly were prepared by the same advisor. The asserted date as referenced in the submissions prepared in the Chen matter is 21 February 2023 -- 5 of 14 -- 6 [25] On 20 February 2023, Cai signed a document entitled ‘Termination Letter’ addressed solely as being ‘To Whom It May Concern’ in which the following statement appears (the Termination Letter):16 While the Contract of Sale of Lot 22 Devries Road Subdivision, PALLARAQLD (sic) 4110 has been terminated, I believe that Homecorp Constructions Pty Ltd is unable to proceed the building contract between us. Therefore, I would like to terminate the building contract between us and please return the deposit to me. [26] I infer that Cai sent the Termination Letter to, and it was received by, Homecorp, such being because it is referred to in paragraph 2 of Homecorp’s statement of response, and a copy of it is found at Annexure B, both accompanying Homecorp’s Response and/or Counterapplication filed in this proceeding. [27] On 8 June 2023, Homecorp issued a letter to Cai in which the following statements appear:17 We confirm that the land contract is at an end and therefore our build contract with you is unable to complete and is therefore terminated. Referring to your request for a refund of the deposit monies, we advise that whilst we did issue a receipt acknowledging that we received the deposit, we regret to inform you that following an investigation of our records this receipt was issued in error. As we did not receive the deposit monies, unfortunately we are unable to issue any refund of those monies. [28] Notwithstanding this response, Cai asserts that Homecorp did refund the Balance Deposit of $3,850.00.18 [29] On 4 September 2023, Cai commenced this proceeding claiming payment from Homecorp of $16,286.40, expressed as a claim for ‘payment of an amount owing’. It did not include a claim for interest or costs.19 [30] On 29 September 2023, Homecorp filed its response to the application denying liability.20 The Issues [31] As Cai’s case is advanced, it is not a claim in restitution for money had and received nor in some way advanced reliant on the doctrine of unjust enrichment, nor is it a claim for damages such which could include damages for breach of contract. As expressed, it is a claim for ‘payment of an amount’. In Cai’s submissions, the relief sought is expressed as ‘full refund of deposit in the amount of $16,286.40’. Thus, in the circumstances as presented by Cai to this Tribunal, the claim can only be an amount owing under the Second Building Contract. Accordingly, the sole issue is whether Homecorp bears liability for that amount ‘under the contract’. Cai submits that it does so according to the terms of the contract, namely Special Condition 7A.21 16 Ibid para 18. 17 Ibid para 19. 18 Ibid para 18. 19 Application for Domestic Building Dispute filed 4 September 2023. 20 Response and/or Counterapplication filed 29 September 2023. 21 Cai’s submissions para 20. -- 6 of 14 -- 7 Relevant Law22 [32] Under clause 19.1(a) of the General Conditions of Contract, Cai was required to pay to Homecorp the deposit as stated in Schedule 2 of the contract document upon signing of the contract (the Deposit). Under Schedule 2, the Deposit is stated to be $20,136.40. [33] The Second Building Contract also contained the following relevant terms as Special Conditions: 7A Subject to Land Contract 7A.1 This Condition applies if the Owner is not the registered owner of the Site as at the Contract Date and is required to purchase the Site. 7A.2 The Contract is subject to and conditional upon the Owner entering into a Land Contract contemporaneously with this Contract and the Owner subsequently effective (sic) of that Land Contract. … 7A.4 If condition 7A.2 is not satisfied, then the Contractor may terminate the Contract by giving written notice to the owner and any Deposit paid by the Owner shall be refunded to the Owner, less any costs referenced under condition 5.5 of the Contract. 7B Subject to registration 7B.1 This Condition applies if the Site is a lot in an unregistered plan as at the Contract date. 7B.2 This contract is conditional upon a plan being approved by any authorising authority to create the Lot and Plan Type and Plan No. (“Plan”) referenced in Item 4 and that Plan registering with Titles Queensland (“Registration”) within 12 months from the date of Contract. 7B.3 If Registration does not occur within 12 months from the date of the Contract, then the Contractor may elect to terminate the Contract, by giving written notice to the Owner that the Contract is at an end and any Deposit moneys (sic) paid by the Owner shall be refunded to the Owner, less any costs referenced under condition 5.5 of the Contract. 7C Sunset Date 7C.1 Notwithstanding any other condition contained within the Contract, if the Works do not commence within 12 months from the date of the Contract for any reasons whatsoever, then the Contractor may elect to terminate the Contract, by giving written notice to the Owner that the Contract is at an end and any Deposit moneys paid by the Owner shall be refunded to the Owner, less any costs referenced under condition 5.5 of the Contract. 22 As I read the material before me and considered the Issue, the contract terms was the only relevant law that I needed to refer to. No statutory provision was engaged in the manner in which the issue arose on the material before this Tribunal. -- 7 of 14 -- 8 [34] Under the contract, the ‘Site’ is defined as “Lot 22 Devries Road Subdivision, PALLARA QLD 4110”; and the ‘Land Contract’ is defined as being “the contract, where required, entered into the Owner and the original owner of the Site for the sale of the Site.” [35] There are no other express terms of the contract, general or special, that provide for any dealings with the Deposit. Nor is there any provision of the contract that refers to the First Deposit. The Evidence & Findings of Fact [36] On the material before me, as I have referred to the relevant facts and circumstances, I find the following chronology of facts proven: (a) 8 June 2021 - The formation of the First Building Contract; (b) 21 June 2021 - The payment by Cai to Privium of the First Deposit; (c) 10 August 2021 - The formation of the Land Contract; (d) 22 December 2021 – The liquidation of Privium; (e) 18 January 2022 – The formation of the Second Building Contract; (f) 25 January 2022 – The payment by Cai to Homecorp of the Second Deposit; (g) 10 January 2023 - The effective ‘sunset date’ under the Land Contract.23 (h) 13 February 2023 – The termination of the Land Contract. (i) 20 February 2023 – Cai sent to Homecorp the Termination Letter. (j) 8 June 2023 – Homecorp confirmed with Cai that the Second Building Contract was at an end. [37] There is however some uncertainty and confusion within the material as to the extent it may properly be said that Homecorp issued a receipt for the First Deposit. Cai states that two receipts were issued, namely:24 (a) the first being Receipt Number 154601-685240 being for payment of $3,850 stating the payment date of 27 January 2022; and (b) the second being Receipt Number 154601-685323 being for payment of $16,286.40 said to state the payment date of 21 February 2022. [38] I accept that the payment of $3,850 was paid as part of the overall deposit required under the Second Building Contract. The receipt given expressly references the number of the Tax Invoice issued 20 December 2021. However I cannot as readily accept that the second receipt was issued as confirmation by Homecorp as having received the First Deposit. This is because, despite the submission referring to what is said to be copies of ‘two receipts’ attached, there is only a copy of the first receipt. A copy of the second receipt does not appear anywhere within Cai’s material filed in this proceeding. Nor does Homecorp provide a copy or otherwise admit to its existence. That being so, I am left to deal with the issue by way of inference to the 23 This is calculated as the date being 18 months from the date of the Land Contract, such being as per the terms of the Land Contract as I noted it earlier herein. 24 Cai’s Submissions para 14. -- 8 of 14 -- 9 extent such may be possible. In that regard I note the following as it appears in the material filed. [39] Firstly, there is Cai’s reference to, and apparent reliance on, an exchange of e-mails on 15 December 2021 in which it is said that Homecorp stated there was no need to pay the deposit again, and that it would issue a receipt as evidence of payment. [40] Secondly, in its Response filed in this proceeding, Homecorp states:25 The Deposit was paid to Privium. It was never received by the Respondent. The Respondent was prepared to credit the Deposit to the Contract Price only if the Contract proceeded and was preformed (sic) by both parties in full. A receipt for the 5% Deposit was issued to the Applicant, however, it was issued in error. The Deposit credit was only to apply if and when the Land Contract settled and the builder commenced under the terms of the Contract. [41] It also made this statement in its ‘Statement of Evidence’ filed 25 March 2024 in this proceeding: Homecorp purchased a range of assets from Privium through the Liquidation process including vehicles, IP (house designs and plans) and a copy and the right to use the Privium in-house designed CMS called iHub. Homecorp did not novate contracts or receive any work in progress or deposit payment from Privium or any related entities, or from the Administrator or Liquidator. … Homecorp offered many of Privium’s clients the opportunity to have their home built by Homecorp now that Privium was in Administration, including waving (sic) the full deposit or providing a discount to the value of the deposit should a successful build occur. This was initially through a novation process that was then replaced by a new build offer. The applicant chose to enter into a new build contract with Homecorp. … Homecorp received a notional deposit of circa 0.5% being $3,850 from the Applicant, noting the Applicant had previously paid a 5% deposit to Privium … Notwithstanding that Homecorp never received any deposit moneys from Privium or its Administrators, in error, Homecorp issue a receipt for Privium's 5% deposit under the Contract. This was a clear clerical error, picked up in reconciliation and probably due to Homecorp now using Privium's software. [42] There is also an Affidavit of Mr Ryan Hammon sworn 18 January 2024 filed by Homecorp wherein he states he is Homecorp’s Financial Controller and in that position says that Homecorp did not at any time receive any deposit or progress payments from Privium or its Administrators or Liquidators. [43] Thirdly, Homecorp states in its material, as I just referred to it, that it effectively waived the requirement for the full amount of the Deposit to the extent of the amount of the First Deposit, or would provide a discount to the value of the First Deposit, should a successful build occur. But this is a bare assertion. There is nothing contained in any of the material before me, particularly that from Homecorp, to corroborate such 25 As I understand this statement, the ‘Contract’ to which Homecorp refers herein is the Second Building Contract. -- 9 of 14 -- 10 a statement. It may very well have been something communicated at some time during the changeover from Privium to Homecorp, such being a fact I do not make any positive finding about because I need not do so. The relevant fact is that it was not a term of the Second Building Contract, such being where it should have been expressed to have had contractual effect and thus able to relied on by Homecorp. [44] The exchange of e-mails on 15 December 2021 does not assist Cai. As it is contained in Cai’s submissions, it is not one raised by or sent in response to Cai, but rather appears to have been raised by other persons in the same circumstances as Cai was in, namely a Xialoa Zhang and Pheng Zu in terms of Lot 11 Devries Road, such which is the subject of proceeding BDL 291-23. But other than that, on the basis of the remainder of the material to which I have referred I find as fact: (a) Homecorp did issue a receipt to Cai for the amount of the First Deposit, seemingly treating it as part satisfaction of the entire Deposit required to be paid to it under the Second Building Contract, but in circumstances that it had not, and did not ultimately receive the amount of the First Deposit; but (b) at its highest, by its conduct Homecorp represented to Cai that: (the Homecorp Representation) (i) it did not require full payment of the Deposit under the Second Building Contract to the extent Cai had already paid the First Deposit under the First Building Contract; and (ii) in conjunction with Cai’s payment of the Second Deposit it recognised that payment of the full deposit under the Second Building Contract as having been effected, the balance satisfied by the amount of the First Deposit having been paid. [45] Thus, the question that arises is the extent to which, if at all, Homecorp could be held liable to Cai for refund of the amount of the First Deposit in the event the Second Building Contract did not proceed, and in terms of the contractual burden to refund the full amount of the Deposit under the Second Building Contract, such incorporating the amount paid as the First Deposit, in circumstances where the Land Contract did not complete. Discussion of the Issue [46] Before embarking on discussion of the material before me in addressing that question to the extent necessary to explain the decision I have reached in this proceeding, for completeness and the parties’ benefit I make this short observation about the Deed of Novation. Whilst I can readily accept as a fact that the Deed was provided, and that Cai signed it, ultimately it was not a concluded agreement and thus is irrelevant in this proceeding. Given that which I have said at paragraphs [14] to [19] herein, I infer that upon administration and then subsequent liquidation of Privium the step of novating the First Building Contract was either abandoned by Homecorp or otherwise, dependant on the relevant timeline, became impossible to implement. That being so, the express legal relationship between Cai and Homecorp is that found in the Second Building Contract and accordingly it was the terms of the Second Building Contract that was the relevant material. -- 10 of 14 -- 11 [47] That being said, it seemed to me that the best place to start this discussion was with the following statement by Homecorp:26 The Applicant had the right and opportunity to claim on the QLD (sic) Home Warranty Scheme insurance within 3 months of the Privium contract cancellation due to Privium being in voluntary administration. The final date for this claim would have been circa 17 February 2022. This was the correct avenue to claim the deposits (sic) and the Applicants (sic) chose not to claim against these insurances. It was the Applicants (sic) responsibility or the responsibility of their representative to seek the appropriate advice at that time and to act. [48] Whilst there is some error in the manner of expression of this statement, such as cancellation of the Privium contract due to voluntary administration,27 the essence of the statement is generally correct. Upon the termination of the First Building Contract as a result of Privium’s liquidation, it was open for Cai to have claimed under the Home Warranty Insurance Scheme for loss of the deposit paid to Privium. But that step was not taken. The question is why ? [49] Before answering that question, whilst not expressed by either party in the material before this Tribunal, it may be observed that had Cai taken such a step and successfully recovered the amount of the First Deposit it should be expected that Homecorp would have required payment of the full amount of the Deposit under the Second Building Contract such which would have resulted in Cai being required to pay that amount to Homecorp in satisfaction of the requirement for the deposit thereunder, and so upon termination of the Land Sale Contract in turn Cai being in the same circumstances as have given rise to this proceeding. But such is merely speculative discussion and there is no certainty that had that occurred Homecorp might not have, or might have, refunded the full amount noting it readily refunded the amount of the Second Deposit.28 [50] In my opinion, the answer to this question is found in the content of Cai’s application to this Tribunal wherein the following statements appear:29 I signed a building contract with Privium Pty Ltd trading as Impact Homes on 8 June 2021, but on 22 December 2021, Privium was placed into liquidation. I was then informed that my case would be taken over by Homecorp. Initially, I received a Novation Deed to sign, but later, Homecorp didn’t sign that document back (sic). Instead, they offered a new building contract with a higher price, and asked me to sign if I agreed. On 18 January 2022, I signed that contract and was instructed that there is no need to pay the deposit again, Homecorp Pty Ltd will issue a receipt to me as evidence of payment. I just needed to directly pay the difference in 5% deposits 26 Homecorp’s Statement of Evidence filed 25 March 2024 – para 6. 27 There is no premise upon which the First Building Contract could have been terminated upon Privium entering voluntary administration. It is only at the time of liquidation that a right of termination arises – see clause 27.1 of the General Conditions of Contract. 28 This is so even though Homecorp asserts it did so on an ex-gratia basis. See Homecorp’s Statement of Evidence filed 25 March 2024 - para 17. 29 Application filed 4 September 2023, Part C Q2. It is not in issue that Homecorp refunded the amount of the Second Deposit, thus what is pressed is solely the amount of the First Deposit as being the ‘amount owing’. -- 11 of 14 -- 12 between the building prices of Privium Pty Ltd trading as Impact Homes and Homecorp Pty Ltd. They assured us (sic) that they would provide a receipt for this 5% deposit payment. … Throughout the entire process, I followed instructions from Homecorp Pty Ltd and paid the deposits as required by them. They assured me that I didn’t need to make additional deposit payments and that they would provide receipts. Given these circumstances, I believe that they should refund the amount to me. [51] Given what Cai stated in the Application, it seems to me that Cai relied on the Homecorp Representation and so did not pursue recovery of the First Deposit under the Home Warranty Scheme. It may be that such gives rise to some form of estoppel which might have given some support to Cai’s efforts to recover the amount of the First Deposit had such been a premise relied on by Cai in this proceeding. [52] Alternatively it might be that it enlivens issues under the Australian Consumer Law that might equally have given some support, once again had it been relied on by Cai. [53] I do not express any opinion on whether either or both of these would be so, nor make any findings about those legal concepts. This is because Cai did not advance either of them as a premise for the relief sought in this proceeding. The relief pressed is for payment of what is said to be an ‘amount owing’, which as I discussed earlier can only be read as an amount owing under the Second Building Contract. To that end, Cai pressed for relief reliant on Special Condition 7A of the Second Building Contract terms as the basis for the asserted entitlement to the full deposit being refunded.30 [54] Special Condition 7A provides Cai, as the home owner under the contract, an entitlement to refund of the Deposit only where the contract is terminated by Homecorp. A similar entitlement is found in Special Conditions 7B and 7C. That being so, the next relevant question is - did Homecorp terminate the Second Building Contract ? [55] As I noted it earlier herein, I found as fact that: (a) on 20 February 2023, Cai sent to Homecorp the Termination Letter; and (b) on 8 June 2023, Homecorp confirmed with Cai that the Second Building Contract was at an end. [56] Homecorp described the former as Cai having “asked to terminate the Homecorp Contracts (sic)”.31 The manner in which Cai described it is a “contract termination”.32 [57] On the basis of these facts, and those short descriptions given to them by the parties respectively, in my opinion it was Cai who sought to effectively terminate the Second Building Contract, such which was accepted by Homecorp. In my opinion, whilst not described as such by Homecorp, Cai’s action was a renunciation (which may also be 30 Cai’s Submissions para’s 16 and 20. 31 Homecorp’s Statement of Evidence filed 25 March 2024 – para 13. 32 Cai’s Submissions para 18. -- 12 of 14 -- 13 referred to as a repudiation) by Cai of the Second Building Contract.33 This is so given the absence of: (a) any express provision in the contract terms to enable such a termination by the owner; and (b) Homecorp not acting in any manner that could be said to have been a substantial breach of the contract or otherwise a repudiation of it such as could have entitled Cai to terminate the contract under common law. [58] Accordingly, it was open to Homecorp to accept the renunciation and terminate the contract, such being what it did by its conduct in sending the letter of 8 June 2023. [59] Alternatively, if I am wrong in that conclusion on the meaning to be attributed to the exchange of those communications between the parties, in my opinion these facts demonstrate that the parties mutually discharged the Second Building Contract as a result of it effectively being frustrated once the Land Contract had been terminated, and as such the Site under the contract did not exist such as to permit the house to be constructed. [60] All that being said, it leads to the conclusions as I discuss them here. Conclusions [61] This is where Cai’s case has gone wrong. [62] As I noted it in paragraph [51] herein, the circumstances as they appeared on the material before me might give rise to issues in terms of an estoppel or an Australian Consumer Law argument in which a liability might be shown to have arisen on Homecorp for the loss Cai has undoubtedly suffered to the extent of the amount of the First Deposit paid. But none of this forms part of Cai’s case in this proceeding. The case can only be decided on the basis as advanced, that being what is said to be a claim for an entitlement said to be found under the Second Building Contract. But no such entitlement has been enlivened on the facts as they are presented to this Tribunal. [63] For it to have arisen, it required Homecorp to have unilaterally terminated the contract. Cai’s issuing of the ‘Termination Letter’ was something not provided for under the Second Building Contract nor otherwise required. The express terms of the contract did not provide any mechanism for the home owner to terminate the contract upon expiry of the sunset date under the Land Contract, and then in turn become entitled to refund of the deposit paid. The contract terms, and in particular Special Condition 7A, it being the premise for Cai’s case and the relief pressed for in this Tribunal, but as well as Special Conditions 7B and 7C, required Homecorp to have elected to terminate the contract before the burden was cast upon it to refund the deposit. That is, it provided for a unilateral action by Homecorp, not a bilateral action of mutual discharge instigated by Cai. [64] Such might be said to be an unfair, and to some degree an unworkable, arrangement. The question that arises is – what if Homecorp never exercised the election open to it to terminate the contract ? This would mean that the Second Building Contract simply sat there but unable to be performed in terms of having a house constructed because there was no ‘Site’ in existence unless the parties agreed by way of a variation to the 33 Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625-626. See also Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at 135;[44]. -- 13 of 14 -- 14 contract to change the Site, something not required by way of any express term and so simply left to the parties, separate but coinciding action. The answer is that the contract could thus only be treated as being legally frustrated, such meaning it could never be performed the way in which it was intended. But neither the contract terms, nor the common law, then provides for the owner to be entitled to a refund of the deposit paid reliant solely on the doctrine of frustration. [65] In all respects, it must be observed that the terms of the Second Building Contract were not drafted favouring Cai or even balanced between the parties in that regard. One might say that Cai had either failed to take advice about the contract before signing it, or had been poorly to badly advised about it. It may also be observed that Cai could have readily required a Special Condition to be inserted in the Second Building Contract, or a redrafting of Special Conditions 7A, 7B, and 7C, to provide a mechanism for either party to have terminated the contract. Such is the mechanism as it appears in the Land Contract. But that was not provided for, and there is no basis for such a term to be implied into the contract.34 Accordingly the express terms of the contract must be the terms under which the issue is resolved. [66] Given all I have discussed herein, there is no entitlement under the Second Building Contract for Cai to be refunded the amount of the Deposit under the Second Building Contract, and thus in any way become entitled to the amount paid as the First Deposit as an amount owing under the Second Building Contract. Such is an unfortunate outcome and one which has resulted solely from Cai’s own actions, possibly haven arisen from poor or incorrect advice received. Accordingly, ultimately it does not matter whether any such refund, if it was to have been made, should have included the First Deposit amount. There is only one possible outcome in this proceeding, that being the application must be dismissed. An order was made to that effect. 34 I pause here to observe that Cai did not seek, within this proceeding, to have such a term implied. -- 14 of 14 --