CITATION:	Piper v Hookham Constructions Pty Ltd [2014] QCAT 215	

PARTIES:	Darryl Piper
(Applicant)	
	v	
	Hookham Constructions Pty Ltd
(Respondent)	

APPLICATION NUMBER:	BDL121-13	

MATTER TYPE:	Building matters	

HEARING DATE:	15 April 2014	

HEARD AT:	Brisbane	

DECISION OF:	Senior Member Oliver	

DELIVERED ON:	21 May 2014	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	Darryl Piper pay to Hookham Constructions Pty Ltd the sum of $95,516.63 by 30 June 2014.	

CATCHWORDS:	BUILDING CONTRACT – TERMS AND EXTENSION OF TIME – TERMINATION – where contract for the construction of three units on a single block of land – where contract stipulated an amount for delay damages – where amount inserted by applicant – whether the parties agreed to the daily rate – where contract provided for specific construction period for the three units to be built together – where agreement to split the project to build one unit first and then two units – where original time for construction exceeded the time in the contract – whether the parties agreed to an extension of time for the build – where payment schedule changed to reflect the change in the construction arrangements – where applicant sought to terminate the contract for substantial breach – whether the respondent in substantial breach  - whether respondent entitled to balance monies owed under the contract –whether the respondent entitled to be paid prime cost items for food and accommodation when not included in the “inclusions” to the contract.	

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Piper in person	

RESPONDENT:	Mr Hookham in person	

REASONS FOR DECISION

[1]	Mr Piper owned a house at 4 Leichhardt Drive, Moranbah in the State of Queensland. On 13 May 2011, he entered into a contract with Hookham Constructions Pty Ltd for the construction of three units on the land. The existing house was to be demolished to make way for the three new units. 
[2]	Mr Piper was living in the house when the contract was signed. He would use the house when in Moranbah for work. The total contract price for the three units was $904,813 inclusive of GST. The contract provided that the works must reach practical completion with 210 days. The work commenced on 11 July 2011 and the actual practical completion date was either 6 February 2013 or 20 February 2013. This was well in excess of the original 210 days provided for in the contract. 
[3]	When the project was completed, Hookham Constructions delivered an invoice for the final payment under the contract for $87,278. Mr Piper does not dispute that this is the final payment. Despite that, Mr Piper did not pay the final payment. Instead, he filed an application in the Tribunal for $87,278.12 on 15 May 2013, which, according to the statement of claim attached to the application, he claimed was owed $85,868.08 for what might be described as late completion damages under item 11 of the contract for $76,000, plus interest of $9,578.08 and the filing fee. The basis of this claim was that the work was not completed within the 210 day timeframe.
[4]	In its response to the application, Hookham Constructions says that their contractual requirement that the work be completed in 210 days was varied because the progress of the works changed from building all three units in one stage, to a two stage process. The first stage was to build one unit for Mr Piper to reside in and then, the second stage was demolishing the house and building the other two units. This is in fact what occurred yet; Mr Piper complains that despite this change Hookham Constructions still had to comply with the original timeframe. Further, Mr Piper says that if there was a variation of the timetable for construction, this was not done in strict compliance with the contract or s 18 of the Domestic Building Contracts Act 2000 (Qld). 
[5]	As Mr Piper did not pay, the final payment and Hookham Constructions counter-claimed for this sum, which, as I said Mr Piper does not dispute save for offsetting his own claim for delay damages and damages generally under the contract.
[6]	Both parties have had the assistance of lawyers. The lawyers have prepared statements, submissions and amended the claim made by Mr Piper. Mr Piper’s lawyers have also recently taken steps to bring the contract to an end. However, to the parties credit, both appeared in person at the hearing before me. Typically, there was some late delivery of statements of evidence but this did not delay the hearing of the application. Both parties had an opportunity to give further evidence and cross-examine each other about the contents of the statement but save for some minor evidentiary detail, chose not to do so. 
[7]	The parties did agree before me that the issues for me to decide were as follows:
1.	Is the respondent bound by the $200 per day late completion damages inserted into item 11 of the contract;
2.	Was the time for completion extended beyond 210 days by agreement between the parties;
3.	Did the works reach practical completion and if so when;
4.	Was the applicant in breach for non payment of the final stage; and
5.	Was the contract lawfully terminated by the applicant.
Background
[8]	Mr Hookham is a director of the respondent company and held a building licence for many years. He is an experienced builder. He and Mr Piper were friends and Mr Hookham had previously built a four bedroom family home and a triplex for him in Moranbah. It seems from this history that Mr Hookham and Mr Piper had a good and amicable working relationship.
[9]	Prior to providing a quote, Mr Hookham and Mr Piper had discussions about the new project of three units and it was always intended that the existing house would be removed and the project would proceed in a single stage, that is, all units would be constructed together. This is confirmed by reference to schedule 2 of the contract, that is the stage of payments because each stage was in respect of all three units. By way of example, the enclosed stage required a payment of $316,684.55, which was about a third of the total contract price.
[10]	The contract price was agreed, and the contract documents were prepared by Mrs Hookham. That is evident from a perusal of the contract document where all of the insertions are in the same handwriting. The signature for the builder simply says ‘Hugh Hookham for Hookham Constructions P/L which again is in the same handwriting as the rest of the contract. Mr Hookham deposes this to be the writing of his wife and I have no reason not to accept that evidence. Although there is some contention about whether the contract was signed in Hookham Constructions’ office and there is no satisfactory evidence about this, this could easily have been the case because I notice that the same witness witnessed the signatures of both the applicant and the respondent. In any event, nothing turns on this point save for the question about whether the figure inserted into item 15, the daily liquidated damages amount, occurred without any specific knowledge on the part of the respondent. 
[11]	There was a delay in the commencement of the work. Included in the quote was a provisional cost to demolish the house and it was up to Mr Piper to tell the respondent whether it was to demolish the house or whether he would do it himself. Mr Hookham says there was no discussion about doing the project in stages at the time the contract was signed although this is disputed by Mr Piper. I will consider that matter later in these reasons when viewing the objective evidence surrounding the progression of the project. By 24 August 2011, a decision notice was issued by the ISAC Regional Council approving the development application for the construction of the three units. It seems obvious to me that no work could be done until there was local authority approval. In addition to that, the respondent could not commence work until an approval was obtained from the certifiers and this occurred on 4 November 2011 from AAA Building Consultants who issued a ‘Building Permit Approval’ to Hookham Constructions, which included a compliance permit. It was around this time that discussions occurred concerning splitting the project into two stages. The evidence to support this is contained in a letter from Hookham Constructions to the applicant dated 4 November 2011 which states:
Dear Darryl
As discussed with Bert, the requested changes to your development at 4 Leichhardt Drive, Moranbah now being split into two stages means that the timetable for 210 days for completion is no longer achievable.
[12]	That letter, also suggests that a new payment schedule would be drawn up and sent to Mr Piper and his bank. There is no evidence from Mr Piper, either oral or documentation to challenge this contention. It accords with commonsense that if the house is to remain onsite to accommodate Mr Piper while unit three is being constructed, then for the house to then be demolished and removed and the remaining units to be constructed. This clearly establishes that the original timeframe, if only by the conduct of the parties, could not apply. 
[13]	Because of this variation to the staged works, the plans had to be changed so that the driveway could be constructed down the opposite side to that shown on the original plans. To achieve this, ‘the plans were redrawn and the whole development mirror reversed so that the driveway was now on the right of the block’. 
[14]	Subsequent to these events in late 2011, the work began and the progress of the build of unit three was uneventful. It was completed in June/July 2012 with Mr Piper taking possession and occupying the unit while stage 2 of the project was undertaken. Stage payments were also made under the revised progress payments schedule.
[15]	The house was removed in July 2012 and work then commenced on units one and two. Once again, the build was uneventful, save for one issue, until the works were completed in February 2013. The one issue, was the removal of a mature leopard tree on the boundary of the property. Mr Hookham says the removal of this tree was never included in the contract yet Mr Piper maintains the contrary. 
[16]	Once units 1 and 2 were completed, the respondent issued a Final Inspection Certificate – Form 21, which certifies that the work is complete. It also issued a final invoice and ‘notification of practical completion’. Mr Piper did not challenge or contest that the works had reached practical completion and did not challenge the Form 21 but did not pay the final stage payment in fact, in paragraph 13 of his statement made on 30 July 2013 he says:
It is admitted that the sum of $87,278.12 is still owing to the respondent under the Contract. However, this is offset by the total liquidated damages owed by the respondent in the sum of $85,868.08.
[17]	Mr Piper then goes on to contend that the respondent has failed to rectify ‘a number of deficiencies in respect of the works’. Furthermore, in the allegations of fact annexed to the application, the only claim made is in respect of late completion damages and interest. There is no contention that the respondent breached the contract nor is there any claim for defective building work. The only issue raised in the application is whether or not the applicant is entitled to damages for late completion.
[18]	Subsequent to the receipt of the final invoice there were emails exchanged about defective work but it is evident from reading those emails they all relate to minor defects which would not, in my view, challenge the contention that the works were practically completed. By May 2013, the applicant had not raised any dispute as to whether the works were practically complete nor any challenge to his liability to the final stage payment. 
[19]	After the proceedings commenced the applicant sought to shore up his position after receiving the response and statement of evidence of Mr Hookham by instructing his solicitors to send a letter to the respondent on 20 February 2014 enclosing a Notice to Remedy Breach under clause 27.3 of the contract. The alleged substantial breaches particularised are as follows:
1.	Breach of clause 21.9:
	Documentary evidence has not been provided in relation to prime cost items claims claimed by the builder.
2.	Breach of clause 21.7:
	Contract price not adjusted by the difference between the estimate and actual price of the supply of prime cost items and/or amounts for labour included in prime costs.
3. 	Breach of clause 20.3:
	Failure to provide written variation document in relation to the revised ‘mirror image’ plans. 
4.	Breach of clause 36.1(d):
	Works not carried out in accordance with the plans, as the fence and landscaping has not been completed in accordance with the plans.
5.	Breach of clause 36.1(c):
	Works not carried out in an appropriate and skilful way and with reasonable skill and care, as the kitchen bench tops are not sealed and there is a sharp edge on the staircase handrails in units one and two. 
[20]	The Notice required the various ‘breaches’ to be remedied within 10 working days of the notice. I would immediately observe, that there is some uncertainty about the effect of the notice because of the reference to ‘ten (10) working days of this notice’. Does that mean the breaches have to be remedied within 10 working days from the receipt of the notice or is it 10 working days from the date of the notice which is 20 February 2014. This of itself may render the notice invalid.
[21]	In any event, and in response to the notice, the respondent did endeavour provide a schedule of time cost items, returned to units one and two while it was in possession of them to remedy the defects complained of in various emails, had already made a decision not to charge extra for the ‘mirror plans’ and contended, as it has always contended, that the removal of the leopard tree was not part of the contract. In effect, the respondent is saying that even if these are breaches they could not be classified as ‘substantial breaches’ which would amount to a repudiation if not complied with. 
[22]	It is against that factual background that the various issues referred to above will be considered. 
Is the respondent bound by the $200 per day liquidated damages
[23]	The written contract the parties signed is a standard HIA (Housing Industry Association) New Home Instructions Construction Contract. Schedule 1 to the contract sets out all of the necessary information including the parties, the land on which house will be constructed, the cost of construction, building period, calculable delays, progress payment and item 11 provision for late completion damages. 
[24]	It is evident from reading the contract that the handwriting of Mrs Hookham is consistent throughout the document. It is also evident that the time for completion 210 days is in the same writing as the calculable delays as well as the delay of progress payments. This shows that the number “2”, in the figure “$200” as the amount of liquidated damages per day was inserted in item 11 by someone other than Mrs Hookham. If no amount is inserted, the clause provides ‘if nothing stated, then $15’ per day. Mr Hookham’s evidence is that the $200 was not inserted by him or Mrs Hookham at the time the contract was given to Mr Piper. He says that at the time of signing the contract it was not brought to his attention by Mr Piper that $200 per day had been inserted. He says had he been aware of that fact he would not have agreed to it because it is a significant amount and does not represent true liquidated damages. Support for this can be seen by comparing it to the default amount. Furthermore, the insertion of $200 was clearly inserted after the contracts were prepared and as it is a change, one would expect that both parties would initial the change to signify acceptance, and this was not done. 
[25]	Despite the assertions made by Mr Hookham as to the insertion of $200 there was no response from Mr Piper in his statement of evidence in reply. Therefore, again there is no direct challenge to the contention put by Mr Hookham that there was no agreement in fact as to the amount of liquidated damages.
[26]	At the conclusion of the hearing Mr Piper handed up a document entitled ‘Applicant’s submissions for QCAT Hearing’. I asked Mr Piper if these had been prepared by his solicitor and he confirmed that that was the case. Subsequent to the hearing and upon reading the ‘submissions’ it became apparent that the submissions were not simply submissions on the evidence but in fact an attempt to lead further evidence. In that document, he challenges the assertion that there was no agreement between himself and Mr Hookham about the amount of liquidated damages. He says he ‘specifically discussed this matter with the respondent at the time the contract was signed’. He says the figure was inserted at the respondent’s office prior to the contract being signed but he does not descend to particulars of who inserted the figure when one would expect him to do so when it is clearly in different handwriting. In addition, there is no explanation as to why there is such a large difference between the “agreed” rate and the default rate.
[27]	I do not regard that evidence in the nature of submissions, if it can be called that, as probative. I come to that conclusion because the challenge to the assertion by the applicant that there was no agreement, has come very late in the day and it lacks particularity and should be rejected. In Koman v The Guitar Gym Pty Ltd the QCAT Appeal Tribunal said, “To establish elements of a contractual relationship required a finding as to whether the parties evinced an intention to create legal relations. In contract law, this intention must be mutual, a consensus ad idem or ‘meeting of the minds’ in which both parties consider themselves contractually bound".
[28]	In any event, the discussion about whether the parties are bound by the $200/day rate is largely academic. As will be seen later in these reasons, I do not accept that the respondent was contractually obliged to comply with the 210 day deadline for the construction of the two stage project.
Was the time for completion extended by agreement
[29]	To determine whether the 210 days included the construction in two stages requires an examination of the objective facts associated with this transaction. 
[30]	When the contract was signed on 13 May 2011, the works were to be constructed in accordance with the plan showing, from Leichhardt Drive, the driveway on the left hand side of the property. The payment schedule set out in Schedule 2 of the contract has six stage payments for the whole project in various amounts as follows:
STAGE	PERCENTAGE (%)	AMOUNT ($)	
Deposit	5	45,240.65	
Base	10	90,481.30	
Frame	15	135,721.95	
Enclosed	35	316,684.55	
Fixing	20	180,962.60	
Practical Completion	Balance 15 %	135,721.95	

[31]	Then, according to Mr Hookham in June 2011, there was a discussion about splitting the project to construct unit three first and then the other two units. The objective evidence also demonstrates that after that time, the original plan was changed so that the driveway was to the right hand side of the block and a final building permit approval was obtained from AAA Building Consultants to construct in accordance with that plan. Although not strictly objective, there was a letter from the respondent to Mr Piper entitled ‘Variation to construction schedule’ setting out that as the project had been split into two stages the original ‘timetable of 210 days for completion is no longer achievable’. There is a place for ‘clients signature’ at the bottom of the document however, that was never signed by Mr Piper and returned to the respondent. 
[32]	Although now contending the request for an extension of time was not in accordance with clause 17.3 of the contract, Mr Piper made no challenge to the request for the extension of time when it was made. That is probably because it was patently obvious to him that the works were not going to be completed by the original completion date of about 6 February 2012. In fact, to suggest the contrary would be quite absurd because the house he was living in was not demolished until mid-2012. 
[33]	Clause 17.3 provides:
The builder is to give the owner written notice of the extension of time detailing both:
(a)	The cause of the delay; and
(b)	The extension of time
by the latter of the day that is 
(c)	20 working days on and after the builder is aware of both the cause and the extent of the delay; or
(d)	5 working days on and before the date of practical completion.
[34]	It is arguable that clause 17.3 has no application in any event. The clause contemplates that an extension of time is necessary when the parties have agreed a specific time for completion. Here, that was the case but by his conduct if nothing else Mr Piper has acquiesced or impliedly agreed that the original timetable of 210 days was to no longer be applicable to these works. 
[35]	Further, irrespective of the strict application of clause 17.3 it would offend commonsense to suggest that the timetable was not varied by agreement, or acquiescence on the part of Mr Piper who took full advantage of the project being split; and further, had the advantage of the amended payment schedule which split the two stages and required him to only pay a total of about $320,000 for the first stage and $585,000 for the second stage.
	PROGRESS PAYMENT SCHEDULE	
				
STAGE 1 (single unit)		INVOICE	DATE	
deposit	45,240.65	paid		
base	32,295.88	paid		
frame	48,443.82	paid		
enclosed	113,035.60	paid		
fixed	64,591.77	paid		
final	19,351.15	paid	02.07	

STAGE 2 (duplex)				
deposit	29,092.71	490	22.06.12	
base	58,185.41	591	03.08.12	
frame	87,278.12			
enclosed	203,648.95			
fixed	116,370.83			
final	87,278.11			
				
TOTAL	904,813.00			

[36]	I therefore find that by agreement, the time set out in schedule 1 of 210 days was no longer applicable to the contract. As matters transpired Mr Hookham got on with the job and completed stage two in what could only be regarded as a timely fashion by February 2013. It was approximately the same time as it took to build stage one and there can be no complaint about that.
[37]	I also accept Mr Hookham’s evidence that the first time he became aware that there was an issue about delay damages or the time for completion was when he received a letter from Mr Piper’s solicitor in mid-2013. Even at the time of issuing the final invoice together with the Form 21 there was no complaint from Mr Piper. It seems Mr Piper’s strategy was to remain silent about the increased time for completion because of his desire to split the project for his own convenience and used that as a means to avoid paying the final stage payment. This, in my view, is quite unconscionable. 
Did the works reach practical completion
[38]	Mr Piper made no complaint whatsoever about the works reaching practical completion. He made no complaint about the amount of the respondent’s invoice for final payment. He made no complaint about the Form 21. Mr Hookham cooperated with Mr Piper by providing keys for him to access units one and two for the purposes of installing blinds soon after rendering the final invoice. There was an exchange of emails about minor defects but there was no indication whatsoever that Mr Piper considered the respondent to be in substantial breach of the contract even after issuing proceedings claiming delay damages. 
[39]	Clause 25 of the contract deals with practical completion it provides:
PRACTICAL COMPLETION
25.1	The builder must, at the owner’s request from time to time, give a non-binding estimate of when practical completion will be reached.
25.2	On reaching practical completion the builder must give the owner:
(a)	a notice of practical completion stating the builder’s opinion of the date of practical completion; and 
(b)	the final claim.
25.3	Subject to subclause 25.4, the owner must, within 5 working days of receiving the final claim, pay the amount of the final claim to the builder.
25.4	The final claim is not due until the builder:
(a)	give the owner a defects document signed by the builder listing minor defects and minor omissions:
(i)	that the agreed to exist and the time for when those items will be completed or rectified; and
(ii)	that the owner claims to exist but the builder does not agree with; and
(b)	makes all reasonable efforts to have the owner sign the document to acknowledge its contents. 
25.5	If the owner believes that practical completion has not been reached the owner must, within 5 working days of receiving the notice of practical completion, give the builder a written notice stating:
(a)	the owner’s requirements for the works to reach practical completion; and
(b)	the provisions of this contract that relate to each requirement.
25.6	The builder must, on receiving the owner’s notice, complete those requirements that, in the builder’s opinion, are necessary to reach practical completion.
25.7	On completion of those requirements the builder must give a further notice of practical completion stating the new date of practical completion and subclause 25.3 applies.
25.8	The owner’s payment of the final claim is conclusive evidence of the builder’s satisfaction, and discharge, of the builder’s obligations in connection with the subject matter of this contract except for:
(a)	fraud, dishonesty or fraudulent concealment relating to the works;
(b)	the builder’s liability under subclause 27.1; and
(c)	the builder’s liability under a statutory warrant set out in clause 36.
25.9	The date stated in the last notice of practical completion is deemed to be the date of practical completion unless within 5 working days of receiving the last notice of practical completion the owner give the builder written notice:
(a)	disputing the date; and
(b)	detailing the reasons why the date is disputed.
[40]	When Mr Hookham gave the final invoice and Form 21 to Mr Piper he was of the opinion that there were no minor defects. However, by an email on 26 February 2013 Mr Piper provided a list of minor defects, some of which related to Unit 3 which had been occupied by him since June the previous year. The email string indicates that all defects identified by Mr Piper were attended to by the applicant soon thereafter, except for the removal of the tree. 
[41]	Under clause 25.5, Mr Piper did not challenge the respondent’s assertion that practical completion had been reached by issuing a written notice setting out the owner’s requirements for the works to reach practical completion. Further, in paragraph 9 of the statement of facts annexed to the application he asserts that “practical completion occurred on 20 February 2013. That coupled with an acknowledgment that the practical completion (final) payment of $87,278.12 is “still owing to the Respondent under the contract”.
[42]	It follows, in my view, that the parties have both accepted practical completion had been reached, defective work was rectified but a dispute remained about the removal of the tree.
[43]	It is difficult to conclude that the removal of the Leopard tree on the boundary was included in the contract works. Firstly, it is not wholly on the applicant’s land and secondly, Mr Piper sat by while the fence was constructed, made no complaint about the tree when unit 3 was completed, and has not sought the approval of the neighbour on whose land the tree is partially growing. If the tree was so critical, in view of the dispute, Mr Piper could have obtained council approval, if necessary, had the tree removed and claimed the cost back from the respondent. I therefore find the removal of the tree was not part of the contract.
Was the contract lawfully terminated by Mr Piper
[44]	By mid 2013 the parties were at a stand off. The respondent would not hand over possession because the final payment was not made and the applicant would not make the final payment because he claimed the offset for delay damages. To bring matters to a head, presumably, Mr Piper commenced the proceedings in the tribunal. 
[45]	Subsequent to the compulsory conference, Mr Piper took steps to terminate the contract by issuing to the respondent, through his solicitors, a Notice to Remedy breach. I have discussed the Notice above in paragraph 19. Subsequent to issuing the Notice the applicant’s solicitors then issued a Notice of Termination because the respondent, it is contended, failed to remedy the “substantial” breaches. I have already recorded Hookham Constructions’ response to the Notice to Remedy Breach, however for the Notice to Remedy Breach can result in a termination, the breaches complained of must be substantial breach of the contract.
[46]	Clause 28 of the Contract deals with Termination by Default. The owner is entitled to give a Notice to Remedy Breach if the builder:
(a)	Suspends the carrying out of the works, other than under Clause 19;
(b)	Has the builder’s licence cancelled or suspended; or
(c)	Is otherwise in substantial breach of this contract. 
[47]	The question for consideration here is whether the matters complained of in the Notice to Remedy Breach, if not complied with, would amount to a substantial breach of the contract for the purposes of clause 28. However, the difficulty for the applicant before any consideration has to be given to that question, is that by failing to pay the final payment for practical completion he is in breach of his obligations under the contract.
[48]	I have found that the works did reach practical completion, the $200/day liquidated damages amount was not agreed, and the time for completion was extended. The effect of these findings is that the respondent was entitled to the final payment although in a technical sense the respondent did not accept the applicant’s breach as a repudiation and terminate but elected, by its conduct, to keep the contract on foot by retaining possession of the house until payment was made.
[49]	When the respondent did not respond to the Notice, the applicant elected to terminate and take possession of the house. He, or his lawyers, proceeded on the assumption that the matters complained were of such seriousness as to amount to a substantial breach. I do not agree. I have dealt with item 5, the fence, so failure to construct it is not a substantial breach.
[50]	As for the paperwork for prime cost items, clearly there is an obligation on the builder to comply with clause 21.9 but failure to do so does not go to the heart of or the performance of the builder’s primary obligations under the contract to construct the house in accordance with the plans and specification. No variation was provided for the cost of preparing the “mirror plans” because of the friendship between Mr Hookham and Mr Piper. This is failure, is not a substantial breach.
[51]	The complaint about the bench tops not being sanded and the sharp edges on the handrails are minor defects which would, in the normal course, be attended to in the defects liability period. This is not a substantial breach. Similarly, adjusting the contract price for the prime cost items is not a substantial breach. The builder is entitled to the final progress claim, in accordance with the terms of the contract, but in any event, it has in fact provided the applicant with a schedule of prime cost items and provisional sums in compliance with the Notice which results in an adjustment in favour of the respondent in the sum of $9,907.60. Either way, there can be no complaint from the applicant about this particular matter.
[52]	For these reasons I find that the respondent was not in substantial breach of the contract and therefore the applicant had no grounds for terminating the contract and taking possession.
[53]	That being the case, clauses 26.1 and 26.3 of the Contract is enlivened entitling the respondent to treat the applicant’s actions as a repudiation and claim damages as well as the balance of the money owed under the contract.
Damages
[54]	The final payment claim is for $87,278.12. The applicant has abandoned any claim for damages for defective work so there is no reason why the respondent should not be entitled to recover this sum. 
[55]	The respondent has also claimed the cost of provisional sums and prime cost items in the sum of $9,907.60. The only claims made in the counterclaim filed with the response were for the final payment and the payment of QLeave payable under the contract. On 14 April 2014, the applicant filed a further statement with a schedule, “PC Items”, of the provisional sums and prime cost items claimed to together with supporting material. This material included various invoices showing the costs of these items.
[56]	The Inclusions List to the contract sets out the various items that have prime cost allowances. Nowhere in the Inclusions List is there an allowance for food or accommodation of various trades people who were to do work on the project. An example is the tiler: there is an allowance of $80 per square metre for labour but no allowance of food or accommodation. In the schedule of PC Items there are claims for food and accommodation for the carpet layer, landscaping, the tiler and under “fencing and gates”. There is also a claim for storing and handling tiles which is unsupported by the Inclusions. As there is no contractual obligation to pay for these expenses the PC Items schedule should be adjusted as follows:
Carpets:	Claim is for $627.80 – after deducting food and accommodation of $880 there is a credit due to the applicant of $252.20
Tiles:	Claim is for $1,510.00 – after deducting the store/handling charge of $484.00 there is $1,026 payable to the respondent.
Tiler:		Claim is for $2,643.28 – after deducting $2,750 for food/acc there is $106.72 payable to the applicant
Landscaping:	Claim is for $2,751.54 – after deducting $1540.00 for food/acc there is $1,211.54 payable to the respondent.
Fencing:		Claim is for $2,546.00 – after deducting $770.00 for food/acc there is $1,776.00 payable to the respondent.
In the end of the total claim, less the refund for wast of $171.02 as conceded by the respondent the amount payable for PC Items is adjusted down to $3,488.52
[57]	There does not seem to be any contention that the respondent is entitled to the QLeave payment, subject of course to the findings about termination.
Conclusion
[58]	Because I have found that the amount of liquidated damages of $200/day was not agreed to by the respondent the default amount is payable under the contract. However because of my findings that the time for the contract was extended by the change in the way in which the contract was to be performed, no delay damages are payable by the respondent.
[59]	I have found that the applicant, by terminating the contract in the manner he did was a repudiation and is in breach under the contract. There is no entitlement to damages. 
[60]	For the respondent, I have found it is entitled to the final payment under the contract as well as a reduced claim for provisional sums and prime cost items as well as the QLeave claim.
Final Payment under the Contract	$87,278.11
Provisional Sums and Prime Cost Items	$  3,488.52
QLeave	$  4,750.00
[61]	Clause 33 of the contract makes provision for default interest. There is no claim for default interest nor can I find, in the schedule to the contract, any provision nominating the rate of default interest. Therefore I make no allowance for interest.
[62]	The result is that the applicant’s claim is dismissed and the respondent’s counter-claim is allowed in the sum of $95,516.63.
[63]	The order of the Tribunal will be that the applicant pay to the respondent the sum of $95,516.63 by 30 June 2014.