Curtis v Clayton [2011] QCAT 349

CITATION: Curtis v Clayton [2011] QCAT 349 PARTIES: Heidi Curtis v Larry Clayton APPLICATION NUMBER: BDL007-11 MATTER TYPE: Building matters HEARING DATE: 29 July 2011 HEARD AT: Brisbane DECISION OF: Peta Stilgoe DELIVERED ON: 4 August 2011 DELIVERED AT: Brisbane ORDERS MADE: Application dismissed. CATCHWORDS : BUILDING DISPUTE – where contract provided for owner to be responsible for obtaining approved plans – where amendment to Building Code required amended energy efficiency details – where owner amended plan – where builder offered to obtain amended energy efficiency details – where builder withdrew offer to obtain amended energy efficiency details – where builder terminated the contract because owner had not provided approved plans – where owner sourced new contract at increased price – whether owner could claim increase in price from builder APPEARANCES and REPRESENTATION (if any): APPLICANT : Ms Heidi Curtis. by her agent Ms Violet Adams RESPONDENT: Mr Larry Clayton in person -- 1 of 4 -- REASONS FOR DECISION [1] On 17 February 2009, Ms Curtis and Mr Clayton signed a contract, subject to finance, for Mr Clayton to build a house for Ms Curtis. The contract price was $105,750.00. [2] Ms Curtis lodged the plans with the builder certifier in March 2009. On 12 May 2009, the certifier issued a letter to Ms Curtis advising further information was necessary. That further information included revised energy efficiency details. [3] Ms Curtis received her finance approval in late June 2009. In July, she had an amended plan prepared, showing a Dutch gable roof. This plan was prepared by garlandesign, whereas the original plans were prepared by Coast Wide Plan & Design Services. [4] On 11 August 2009, Mr Clayton issued a variation for the Dutch gable roof. That variation included these words at the bottom of the document: “Coast Wide Plan Design advise that they do not have a current plan and suggest you consult your draftsperson garlandesign (please note if changes to sustainable living it will incur additional expense.)” [5] On 25 August 2009, by his solicitor, Mr Clayton terminated the building contract because Ms Curtis still did not have approval from the certifier. Ms Curtis engaged another builder to build her house at a cost of $135,654.00. She says Mr Clayton breached the contract and she is claiming the difference in the contract price from Mr Clayton. [6] The parties agree that the issue I have to decide is which of them was responsible for obtaining revised energy efficiency details. The starting point for that determination is item 15 of the contract which states that Ms Curtis was responsible for obtaining plan approvals. [7] What happened between 12 May 2009 and 11 August 2009 was the subject of evidence from Ms Curtis, Ms Adams, Mr Clayton and his wife Mrs Clayton. There is significant conflict in that evidence. [8] Ms Curtis and Ms Adams say that Mr Clayton took over responsibility for providing the energy efficiency details. They say that in May 2009 Mr Clayton said “he would attend to the revised energy efficiency plan.”1 [9] In his affidavit, Mr Clayton denied that he accepted responsibility for the revised energy efficiency details. During the hearing Mr Clayton conceded that he did tell Ms Curtis he would ask Coast Wide to get the revised energy efficiency details. Mr Clayton told the tribunal that he did ask Coast Wide but that firm refused to provide the revised energy efficiency details because another firm had provided revised plans. Exhibit LC2 to Mr Clayton’s affidavit is a letter from Coast Wide confirming that it declined to carry out an amended energy efficiency assessment. [10] Ms Adams says that she had a similar conversation with Mrs Clayton.2 Mrs Clayton denies that conversation took place. 1 Affidavit Ms Curtis, paragraph 16, affidavit Ms Adams paragraph 12. 2 Affidavit Ms Adams, paragraph 13. -- 2 of 4 -- [11] I find that in May 2009, Mr Clayton did accept responsibility for obtaining the revised energy efficiency details. I am not convinced, however, that the conversation between Ms Curtis and Mr Clayton occurred in the context of the amended plan: a) The tribunal heard that amendments to the Building Code of Australia, which amended the energy efficiency requirements, took effect on 1 May 2009. All parties agreed that there were some conversations with drafters and the certifier in which the advice was to the effect that it would make no difference to the energy efficiency plan. That advice is entirely consistent with a change to the Building Code but no change to the plans. b) The plans for the amended roof line did not issue until July 2009. c) As events transpired, the amended roof line required an amendment to the energy efficiency requirement. Ms Adams advised the tribunal that the new roof required the addition of insulation; the new builder sourced an amended energy efficiency certificate;3 and the approved plans show the original energy efficiency plan with the notation “SUPERCEDED (sic) SEE ATTACHED BERS REPORT.”4 [12] I accept Mr Clayton’s evidence that, once Ms Curtis decided to change the roof line, the amendment of the energy efficiency details was no longer a simple matter. [13] Ms Adams took the tribunal to the variation of 11 August 2009. She told the tribunal that Ms Curtis discussed the amount of the variation with her at length and that they received independent advice about whether that was a fair figure. Ms Adams told the tribunal that she rang Mr Clayton and verbally accepted the variation. [14] Ms Adams said that she didn’t take much notice of the words at the foot of the variation because Mr Clayton had not rung Ms Curtis to discuss the issue. Ms Adams said that she thought the parties had a good relationship and that they were acting on verbal, not written, communications. In a jurisdiction where builders are regularly criticised for failing to submit variations in writing before the work is carried out, Ms Adams’ argument that compliance with the correct procedure should be a reason to ignore the effect of the document is novel, to say the least. [15] I cannot accept the truth of Ms Curtis’s evidence. She told the tribunal that a couple of paragraphs in her affidavit were wrong but she could not tell the tribunal what was the correct position. Under gentle questioning from Ms Adams, Ms Curtis told the tribunal that a medical condition, and the medicines she takes to control it, affects her memory. She now has no independent recollection of these events. [16] Ms Adams told the tribunal she wanted to make changes to 4 of the 20 paragraphs in her affidavit. All of the changes related to conversations with Mr Clayton. Ms Adams said that the lawyer who drafted the affidavit 3 Exhibit 3 4 Exhibit 2 -- 3 of 4 -- made the errors. Ms Adams swore the affidavit under oath; it is her responsibility to make sure that the contents of the affidavit are correct. [17] I prefer the evidence of Mr and Mrs Clayton, mainly because it is supported by the documentary evidence. [18] The parties do agree that whatever good relationship existed on 11 August 2009 quickly disappeared. There is also general agreement that, shortly after 11 August 2009, Ms Curtis knew that Mr Clayton would no longer accept responsibility for the revised energy efficiency details. [19] Mr Clayton’s offer to look after the energy efficiency details was never reduced to writing, was not accepted in writing and there was no consideration from Ms Curtis to Mr Clayton for the performance of that obligation. It was not a variation to the written contract, nor was it a separate contract on which Ms Curtis could sue. Whatever the character of the obligation, Mr Clayton withdrew it by his written variation of 11 August 2009. After that date, the obligation to provide approved plans reverted to Ms Curtis in accordance with item 15 of the contract. [20] Ms Curtis did not provide approved plans to Mr Clayton. He was entitled to terminate the contract and he did. He was not in breach of any obligation under the contract. Ms Curtis’ application must fail. -- 4 of 4 --