Cronk v Harris [2009] QDC 408

[2009] QDC 408 DISTRICT COURT APPELLATE JURISDICTION JUDGE NOUD No 1746 of 2009 MALCOLM CRONK AND SARAJANE CRONK Applicants and BRIAN GLEN HARRIS Respondent BRISBANE ..DATE 21/12/2009 JUDGMENT 1-1 -- 1 of 6 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application for leave to appeal from a decision of a Member of the Commercial and Consumer Tribunal. Miss Treston appeared for the applicants and Mr O'Regan for the respondent. The application concerns the validity of a notice to terminate given by building owners to a builder. The date of the notice was 8 October 2008. It was preceded by a notice of intention to terminate dated 19 September 2008. Both notices were given pursuant to clause 20 of the contract between the parties, that contract being dated 18 April 2007. The contract was varied on 20 February 2008. The variation provided for stages of completion and for payments (see page 8 of the Member's reasons where the terms of the variation are set out). Between April 2007 and February 2008 there were delays with the building project. Some of these delays were due to the builder but I gather, from the Member's reasons, that the cause of the delays was lack of funds, that, of course, being the responsibility of the owners. That approach, in my view, was open to the Tribunal Member. The parties sought to impose some rigour into arrangements by February 2008, hence, the variation. However, the builder continued to experience difficulties as is apparent from a September 2008 meeting (see paragraph 60 of the Member's reasons). That approach was also open to the Tribunal Member in my view. Nevertheless, as I have said, a notice of intention to terminate by the owners was sent on 19 September -- 2 of 6 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 2008 and in it allegations were made that the builder had failed to complete the requisite stages. The Member found that the notice was good and that the builder was, in fact, in breach of the contract as varied. In that the Member was upholding the agreement between the parties (see also paragraphs 51, 69 and 72 of the Member's reasons). The notice to terminate, however, involved a different issue (see pages 4 - 5 of Mr O'Regan's submissions where clause 20 of the contract of 18 April 2007 is set out). What the Member had to decide there was whether the notice to terminate was given unreasonably. If it was, then the notice would be null and void and that, in fact, is what the Tribunal Member found. Ms Treston argues that in this the Tribunal Member erred in law and that leave to appeal should be granted. It is implicit that the argument is that leave be granted, the appeal heard, and that it be decided in favour of the owners, that is, that the Tribunal Member's decision be overturned. Ms Treston relies on a number of matters (see especially pages 8 - 12 of Ms Treston's submissions). I have had regard to that and have given attention especially to counsel's point that the Tribunal Member, by his approach, was, in fact, endeavouring to make a different or fairer contract for the parties instead of dealing with the one he had before him. With respect, I am unable to view the case in that way. I think the Tribunal Member went about it correctly. He made findings relevant to clause 20(1) and then went on to consider factors relevant to clause 20(2) of the contract. -- 3 of 6 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 The failure on the part of the builder in relation to completion of stages did not mean that the giving of notice in that regard could not be unreasonable. In the present case that, in effect, is what the Tribunal Member found. The Tribunal Member, as I think, took the view that even though the builder did not complete on time, too little time (ten days) was given in the relevant notice. There was evidence supporting that approach. The Tribunal Member also thought that that issue had to be determined in the light of the builder's difficulties in obtaining funds to go forward with the building. All that, in my opinion, was open to the Tribunal Member. The Tribunal Member's reasons at paragraphs 80 - 83 of his reasons are, it is true, brief but they follow a very comprehensive treatment of law and fact and the Tribunal Member to my mind left no doubt as to the reasons for his final decision. It would be unfair to expect the Tribunal Member to go over again at page 13 of his reasons that which he had already dealt with in detail and which formed part of the basis for his decision. I think the Tribunal Member's meaning is clear, namely, that there were delays by the builder, that he, the builder, was not the real cause of that but that the owners were and that the giving of notice to terminate, allowing as it did for only ten days, in all the attendant circumstances was unreasonable. Now, it is true that the Tribunal Member did not expressly -- 4 of 6 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 take into account the many points submitted on by Ms Treston but, in my opinion, he was not required to do so and in this I agree with Mr O'Regan's submissions. The fact is that the Tribunal Member took into account contractual obligations of the parties and also, all the surrounding circumstances as he saw them. The Tribunal Member did not deal with the builder's conduct between the time of the notice of intention to terminate and the notice to terminate nor did the Tribunal Member ask himself about what the owners were supposed to do in the light of what had transpired. I am sure, however, that the Tribunal Member is not ignorant of these features. The real issue is whether it was open to the Tribunal Member to come to the view that the notice to terminate was given unreasonably. I agree with Mr O'Regan in this regard. I am of the opinion that it was open to the Tribunal Member. Finally, I am of the view that when the Tribunal Member spoke about "duress", and the like, in relation to what the builder was undergoing, he, the Tribunal Member, was really addressing the issue of reasonableness. The principles in relation to an application for leave to appeal are well known (but see page 2 of Mr O'Regan's submissions). I do not think the Tribunal Member, for the above reasons, erred in law and I do not consider that the case raises issues of wider importance, that is, going beyond the interests of the parties. If there were errors of law of -- 5 of 6 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 the kind relied on, I would, nevertheless, have dismissed the appeal because, taking account of relevant matters, I agree with the general approach of the Tribunal Member and with his conclusion. It follows, for the above reasons, that the application for leave to appeal must be dismissed and I order accordingly. I shall hear the parties as to costs. MR O'REGAN: Your Honour, I ask for the respondent's costs on the standard basis. HIS HONOUR: Have you got anything to say about that? MS TRESTON: No, your Honour. HIS HONOUR: All right. I order that the applicants pay the respondent's costs of and incidental to the application on the standard basis. Nothing arising? MR O'REGAN: No, your Honour. MS TRESTON: No, your Honour. ----- -- 6 of 6 --