Jemade Design and Construction Pty Ltd v Queensland Building and Construction Commission & Ors [2026] QCAT 24

Hometeam Construction Pty Ltd v McCauley [2005] NSWCA 303

Mazelow Pty Ltd v Herberton Shire Council [2002] QCA 119

Probuild Construction (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151

Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359

[1] The applicant, Jemade Design and Construction Pty Ltd ('the builder'), entered into a Master Builders Residential Building Contract Level 2 with the second and third respondents (jointly 'the owners') on 23 December 2020. The scope of work covered demolition of an existing structure and construction of a new dwelling for a fixed price of $736,800.

[2] The work commenced on 10 March 2021 according to the builder and the construction period was agreed at 216 days, made up of 140 working days, 20 inclement weather days and 56 non-working days, which meant practical completion was due on 11 October 2021.

[3] The parties agreed to the work being performed over seven stages and progress payments utilising Part D - Progress Claims Method D in the appendix to the contract as follows:

Stage 1 Demolition - on completion of items listed in Job Schedule Vardi Rev C

Stage 2 Pool shell - on completion of items listed in Job Schedule Vardi Rev C

Stage 3 Slab poured - on completion of items listed in Job Schedule Vardi Rev C

Stage 4 Frame stage - on completion of items listed in Job Schedule Vardi Rev C

Stage 5 Enclosed stage - on completion of items listed in Job Schedule Vardi Rev C

Stage 6 Fixing stage - on completion of items listed in Job Schedule Vardi Rev C

Stage 7 Practical Completion - on completion of items listed in Job Schedule Vardi Rev C

[4] In the appendix to the contract under Part C - Plans and Specifications, there were two specification documents noted, "Jemade Quote and Scope of Works Vardi Dwelling Revision M 16 pages" and "Job Schedule Vardi Revision C dated 22-12-20".

[5] Practical completion was not achieved by 11 October 2021.

[6] The parties agreed to reduce the scope of work for stage 6 and the abbreviated stage 6 claim was paid on 11 August 2022.

[7] On 22 August 2022 the owners issued the builder with a Notice of Intention to Terminate the Contract, giving the builder 10 days to remedy various listed defaults.

[8] The builder failed to remedy the claimed breaches within the time set or at all and on 12 September 2022 the owners purported to terminate the contract.

[9] The builder responded on 15 September 2022 claiming the termination of the contract by the owners was ineffective and itself a repudiation of the contract which was accepted by the builder, and at the builder's election, the contract was terminated.

[10] On 29 September 2022 the owners lodged a non-completion claim for loss suffered as a result of the builder's failure to complete the work with the first respondent, Queensland Building and Construction Commission ('QBCC'), pursuant to the statutory home warranty insurance scheme. The claim was approved on 7 November 2022 on the basis the owners had validly terminated the contract on the default of the builder.

[11] On 6 December 2022 the builder lodged an application for internal review of that decision, and on 17 January 2023 the internal review decision confirmed the original decision (on default of the review occurring within 28 days of filing the internal review application).

[12] The builder made application on 16 February 2023 to the Tribunal for external review of the decision.

[13] The parties agree the primary issue is whether the contract was validly terminated by the owners following the builder's default. To address that the following fall for consideration:

(a) Were the owners in substantial breach when they purported to terminate the contract?

(b) Was the builder in substantial breach when the owners purported to terminate the contract?

(c) Were the owners entitled to terminate the contract at common law for the builder's breach when they purported to do so?

Were the owners in substantial breach when they purported to terminate the contract?

[14] By clause 20.3 of the general conditions of contract, an owner is not entitled to terminate the contract for substantial breach by the builder if the owner is in substantial breach of the contract.

[15] Substantial breach is defined in clause 1 definitions as a party's failure or refusal to perform a substantial obligation under the contract.

[16] The builder complains about the second respondent, Mr Vardi's, presence and behaviour on site. The builder maintains it amounted to substantial breach of the contract; that Mr Vardi persistently obstructed the builder's performance of the works through his continuous presence on site and his constant supervision of the works and his questioning of the builder's trades.

[17] In a statement of evidence Mr Ryan, the builder's director, says Mr Vardi attended the site at least every second working day and in most weeks every day during the entire build, other than when the owners were on holidays.

[18] Special condition SC-2 to the contract provided:

a) The contractor must give to the owner, or a person authorised by the owner:

1. reasonable supervised access to designated construction areas at the site; and
2. a reasonable opportunity to view any part of the works provided that the contractor's performance is not obstructed and the owner or authorised person complies with any reasonable direction by the contractor in respect of workplace health and safety.

b) Access by the owner, or a person authorised by the owner, under this clause is to be by prior arrangement with the contractor and must be during usual business hours or other times as agreed.

For the purposes of this special condition, 'reasonable access and or opportunity to view any part of the works' shall not be less than twice per week.

[19] Under the contract it was agreed that the owners would be responsible for completing some of the work themselves. The items of work concerned appear at page 4 of a Scope of Works document of 16 pages attached to the contract. The owners were responsible for such things as the plumbing fit-off, tiling and timber flooring work, general joinery work and carpeting, amongst others.

[20] Given that, the owners' access to the site was necessary, Mr Vardi said, to organise the owners' own tradespeople or, if an issue had been discussed with the builder, to view the issue.

[21] Special condition SC-2 clearly facilitated that. The agreed permitted access extended not only to the owners but to a person authorised by the owners to attend. Mr Matthews, a building consultant, was engaged by the owners to report on the progress of the work.

[22] At hearing Mr Vardi said that over the course of the build he was never there more than twice a week, and frequently not even that.

[23] Mr Ryan also claimed that throughout the course of the build, Mr Vardi persistently directed A:

... as to what he considered needed to be done and has also persistently directed the Applicant's trades (which he was told on numerous occasions not to do). He has hindered and interfered with the progress of the works by being a constant presence on site, often criticising the work being carried out, since the work commenced.[1]

Mr Vardi was told he should not be on site on several occasions due to the fact that his presence hindered the works and also was in some cases the builder safety concern. However he has steadfastly remained attending at site almost every working day, causing strain to the relationship between the parties and discomfort to the trades. Some of the applicant's trades refused to attend at site because of Mr Vardi and his consultant's interference and criticism of the works being carried out (for example the applicant has lost 2 bricklayers due to Mr Vardi's interactions with them).[2]

[24] There is little evidence offered to support Mr Ryan's claims. Mr Vardi denies them. There were no email exchanges between them on the subject of interference in the course of the build and at hearing Mr Ryan said he had been worried about it but agreed he had done nothing about it at the time.[3]

[25] There is a statement of evidence made by one of the builder's apprentices, Mr Canning, that says something about the claim of interference. Mr Canning was present on site throughout the build. He gave evidence at the hearing. He said he regularly saw Mr Vardi on site, sometimes for short visits and sometimes for half a day or longer. He said that several times Mr Vardi had asked him questions about the work he was doing and asked him to show and explain things. He said this interrupted his work but offered no elaboration about that. He could not recall any of the conversations.

[26] He also said Mr Vardi asked him to change some of the work, but instead of making changes he referred him to Mr Ryan. Again he had no recall of the changes sought.

[27] Mr Canning said he saw Mr Vardi asking other trades and workers on site questions. He claimed he heard workers on site complain that Mr Vardi was interfering and "acted like he knew everything". He did not clarify whether the trades concerned were the builder's employees or subcontractors. Other than two apprentices, the builder only had two tradesman employed on site in the first weeks of work, but Mr Heslov his leading hand resigned. Mr Ryan nominated the other tradesman on site as leading hand but then he left too in October 2021. After that it was just the two apprentices.

[28] At hearing Mr Canning said after the two tradesmen left, the work on the house was left to him and the other apprentice. He said Mr Ryan was his supervisor throughout the project, that Mr Ryan was not on site all the time but he was on site each morning when Mr Canning was there. He said Mr Ryan did not stay on site however and there was no one else on site to supervise him (or the other apprentice).

[29] Mr Ryan maintains something a little different. He says he was on site most days "on the tools" to help the apprentices. Mr Ryan's time sheet for the job does not support his assertion however, even with the rider Mr Ryan placed on the accuracy of his own time sheets put into evidence at hearing, namely that they did not disclose all days he and the apprentices were on site.[4]

[30] The time sheets reveal that over the period recorded from 30 March 2021 through to completion of stage 4 frame stage on 18 February 2022, that there were only six entries showing Mr Ryan performing work "on the tools" as opposed to his far more frequent attendances described as site visits or site meetings.

[31] For the subsequent enclosed and fixing stages, his personal time sheet for the period to 11 July 2022 shows 23 days doing work "on the tools" and 22 days recorded variously as site visits or site meetings.

[32] The time sheets, such as they are, also show that throughout the course of the job attendances by Mr Ryan or his workers were invariably limited to no more than two or three days in most working weeks and no attendance at all in many weeks. From February to July 2022, the time sheets disclose only six occasions where work was performed four days in the working week and only two weeks where work was done each working day.

[33] There is no evidence given about the attendances of sub-contractors.

[34] By special condition SC-2 the builder was obliged to offer the owners or a person authorised by them access to the site and reasonable opportunity to view any part of the works no less than two days each week. Supervised access and opportunity to view any part of the work suggests some form of engagement between the parties necessary on site. Given the apprentices were commonly the builder's only workers on site the engagement might necessarily devolve to them in the absence of tradesmen.

[35] Mr Canning's evidence was that Mr Vardi asked him questions about the work he was doing and asked him to show him things and explain things. That does not seem behaviour contrary to the intention of SC-2.

[36] Mr Canning refers to his discomfort at being asked questions. That does not equate to obstruction of the builder's performance of work.

[37] I am not persuaded that Mr Vardi's access and conduct onsite complained about was beyond that permitted by special condition SC-2.

[38] Clause 3.1 of the general conditions provides that if there is any discrepancy or ambiguity in the contract the parties must consult in an attempt to resolve such. Failing resolution, it is to be resolved in order of the precedence of documents given in clause 3.3. By clause 3.3, special conditions take precedence over general conditions. That is entirely sensible. Special conditions are specifically formulated by the parties to express their particular intention in particular circumstances:

Where a contract contains both printed standard terms as well as typed or handwritten terms, the typed or handwritten terms ought ordinarily to prevail in the case of conflict between them, since the typed or handwritten terms are those specifically formulated by the parties themselves or their solicitors to express their intention in the particular circumstances, whereas printed standard terms are in the form of a general formula, intended for a wide range of different cases (see The Brabant [1967] 1 QB 588 at 601....)[5]

[39] Given Mr Vardi's behaviour was permitted by special condition SC-2, the same behaviour cannot amount to obstruction of the builder's performance of work under other general conditions of the contract.

[40] Mr Ryan also claims that an ongoing report created by Mr Matthews for Mr Vardi (described by Mr Matthews as an Issues List) caused significant delays to the work because the owners insisted on all the minor defects or minor omissions identified in the report being remedied or completed before the relevant stage payment was claimed.[6]

[41] An owner is not entitled to withhold payment of stage claims if the work is complete save for minor defects or minor omissions. The difficulty quite often however, is determining whether a defect or omission is minor. I have addressed the difficulties and problem of that assessment elsewhere[7] and need not repeat what was said. The difficulty here is Mr Ryan mentions minor defects and minor omissions delaying stage payments but offers no particulars about that.

[42] Mr Vardi said in his statement of evidence that the owners engaged Mr Matthews on 25 October 2021, after the date for practical completion passed, because they had concerns that the builder was not progressing the works diligently and about the builder's capacity to complete the job. Mr Matthews' evidence was that he did not give advice or make complaint directly to the builder about defects or incomplete work but simply reported his findings about the state of the work to his principals, the owners.

[43] The builder refers to a delay of 36 days due to the owners' late payment of the stage 4 claim in a builder's document entitled Statement of Events. Based on an email from the owners to the builder dated 1 February 2022, the builder made the claim too early and had failed to address a number of structural defects which were described as being more than minor defects or omissions. The builder responded by email to the owners "understood and I agree".

[44] There was similar dispute over the builder's entitlement to claim progress payment 5 for the enclosed stage with the owners disputing the stage work being complete.

[45] Similarly with the stage 6 fixing stage payment. I note some of the defects or omissions identified were arguably minor and did not justify the owners refusing payment, however there was dispute over an external drain that the owners maintained, on Mr Matthews' advice, was poorly installed and more than minor defective work. There was also the issue of installation of windows that the owners asserted was the builder's responsibility to supply and install under the contract but which the builder disputed. The parties subsequently agreed to vary the contract to exclude windows and some other items from stage 6 and the builder reduced its claim for the stage work and was then paid for stage 6 work.

[46] I am not persuaded there was delay in paying completed stages of work based on extant minor defects and omissions.

[47] I find the owners were not in substantial breach of the contract when they purported to terminate the contract.

Was the builder in substantial breach when the owners purported to terminate the contract?

[48] By clause 10 of the general conditions the builder expressly warranted it would carry out the work in an appropriate and skilful way, with reasonable care and skill and with reasonable diligence.

[49] Also by s 22 of Schedule 1B Queensland Building and Construction Commission Act 1991 (Qld), the builder impliedly warranted that it would carry out the work under the contract in an appropriate and skilful way and with reasonable care and skill and by s 25 of the same Schedule impliedly warranted it would carry out the work with reasonable diligence.

[50] By clause 20.1 of the general conditions if a contractor fails or refuses to perform a substantial obligation under the contract the owners may give the contractor written notice describing each alleged substantial breach and stating the owners' intention to terminate the contract unless the contractor remedies the substantial breaches within 10 business days after receipt.

[51] By clause 20.2 if the contractor fails to remedy the substantial breach or breaches set out in the notice within the time stated the owners may terminate the contract. The right to do so under the contract is stated to be without prejudice to any other rights or remedies. The right under the common law to terminate the contract and claim general damages for its breach is therefore also available given it is not expressly excluded.[8] General law termination is considered below.

[52] The owners served Notice of Intention to Terminate the Contract on 22 August 2022, specifying the following claimed substantial breaches by the builder:

(a) Failing to proceed with the works with due diligence and in a competent manner;

(b) Unlawfully suspending the carrying out of the works;

(c) Being in substantial breach of clauses 8.3, 10.1, 12.3, 12.4, 12.5, 15.1, 16.1 and 16.2 of the contract.

[53] Addressing the claimed failure to proceed with the works with due diligence and in a competent manner, as at the agreed date for practical completion, 11 October 2021, the builder had completed only the first 3 stages of the work. As at the agreed date for practical completion, stage 4 frame stage was only partially complete and another 3 stages, enclosed, fixing and practical completion remained to be done.

[54] The Notice of Intention to Terminate the Contract was given on 22 August 2022, 315 days after the agreed date for practical completion under the contract with the work still incomplete.

[55] There were no requests for any extensions of time on any basis save with respect to 7 variations agreed after 4 May 2022.[9]

[56] Mr Ryan maintained at hearing and in his statements of evidence that the owners were well aware why the works had not reached practical completion by 7 October 2021,[10] principally delays caused by variations at their request.[11]

[57] As at date of practical completion only 2 variations had been agreed, described as variations 1 and 2. Neither was in writing. The owners paid all of variation 1 and agreed to pay some of variation 2.

[58] Variation 1 appears to relate to work in both stages 1 and 2 and variation 2, as far as accepted by the owners, stages 2 and 3.

[59] The builder claims variation 2 added 58 days delay to the works, 11 days associated with screw piers for the pool, 22 days increasing the height of the fence and 25 days' work on a rear block retaining wall rebuild.

[60] The parties included a Gantt Chart as a specification to the contract, which was the document described in the stages of work as Job Schedule Vardi Revision C ('Gantt Chart'). It set out in bar graph form the project's scheduled steps through each of the stages of work.

[61] There is nothing in the contract requiring the builder to complete the stages of work by the dates set by the Gantt Chart, but the builder clearly accepted the times noted as a good estimate of the time it would take to complete the construction.

[62] The Gantt Chart calculated 16 days to complete stage 1, 20 days stage 2 and 16 days for stage 3. The Gantt Chart added the anticipated date for completion of each stage. Stage 2 was supposed to be finished by 26 April 2021. It wasn't completed until 12 May 2021, 16 days late. Stage 3 was scheduled for completion on 18 May 2021. It wasn't finished until 5 August 2021, 79 days late.

[63] Accepting for the purpose of calculations that variations 1 and 2 caused a delay of 58 days, that leaves 21 days delay out of the 79 days delay completing the work to stage 3 unexplained.

[64] There were no other agreed variations leading up to 11 October 2021, the date set for practical completion under the contract.

[65] The Gantt Chart estimated the time required to complete stages 4, 5 6 and 7 as respectively 24, 25, 26 and 27 days.

[66] Stage 4, frame stage, was not completed with the stage payment claimed until 10 February 2022, 122 days late based on the estimated time for completion in the Gantt Chart. Over the period 11 October 2021 to 10 February 2022 there were six agreed variations, 2104, 2106, 2201, 2203C, 2206 and 2208B reduced to writing. In none were additional days claimed for the variations.

[67] Total hours required to complete the variations may be calculated by working back from the cost of the variations. The builder gave its labour charges in a number of the variations. Mr Ryan charged out his time at $90 per hour and each apprentice at $45 per hour. The total value of the six variations was $11,620. Dividing that by the hourly charge out rate of the apprentices $45 per hour (ignoring the higher charge out rate of Mr Ryan and the costs for materials included in supply and install items) total hours to perform the variations could not exceed 258.

[68] Based on a seven hour working day to translate that hourly figure into days, the variations would add 37 days at most to completion of stage 4. Which leaves 61 days out of the 122 days completing stage 4 that cannot be attributed to variations.

[69] The same process informs of the total possible days added to the construction by variations after 10 February 2022 up to date of date of issue of the Notice of Intention to Terminate the Contract on 22 August 2022, a period of 193 days.

[70] There were three agreed variations (2210, 2215 and 2219) without any claim made to extend time for performance, followed by seven (2220, 2221, 2222, 2223C, 2225, 2226 and 2234) with extra days claimed.

[71] Again adopting the apprentice charge out rate of $45 per hour for the three variations 2210, 2215 and 2219 against the total cost of the variations, $5,090, and applying a seven hour workday, the three variations added approximately 16 days to the build. The builder claimed actual days to complete the variations in the final seven variations 2220, 2221, 2222, 2223C, 2225, 2226 and 2234, of 35.5 days. The 10 variations added no more than 51.5 days to the build.

[72] The actual time taken to complete stages 5 and 6 over the period in question from 10 February 2022 to 22 August 2022 was 193 days. By the Gantt Chart the builder's estimate of time to perform the original stage 5 and 6 work was 51 days, which leaves an unexplained delay of 90.5 days.

[73] Unexplained delay completing stages 4, 5 and 6 not attributable to variations may reasonably be estimated as 151.5 days.

[74] In its Statement of Events document the builder lists attributes delays to other factors besides variations. The responsibility for those other delays however cannot be sheeted home to the owners. Such difficulties as the builder's tradesmen leaving its employ, the builder's concreter and plumber going away on holidays, late receipt of building approval (a responsibility of the builder under the contract), delays sourcing product and the high cost of replacement labour were all matters for the builder to address. There is no evidence that the builder made any attempt to do that.

[75] The builder could have but failed to seek any extensions of time for those other delays. Where an extension of time mechanism exists but the contractor does not use it, then it has been said that it is the contractor's failure to exercise its rights under the contract rather than anything done by the owner which contributes to the contractor's default.[12]

[76] The builder's general delay and failure to perform the work under the contract with due diligence is established. It has been held however that general delay does not necessarily translate to failure to proceed with the works with due diligence constituting substantial breach under the contract. In Hometeam Construction Pty Ltd v McCauley [2005] NSWCA 303 McColl JA said:

1. While the primary judge recognised that the validity of the Notice of Termination turned upon whether Mr McCauley was entitled to issue the Notice of Default, she identified the critical issue in the latter respect (at [5]) as being whether, in substance, the appellant had "failed to undertake the building works with due diligence". That was only one of the relevant questions. She was also required to determine whether even if that had been established, the lack of due diligence was such as to constitute a "substantial breach" of the contract.

...

1. ... However, whether delay is of itself sufficient to raise an inference of lack of due diligence must depend on the circumstances.

[77] Time was not of the essence of the contract, regardless that the provision for liquidated damages was set at $0.00 per day. That is made clear by the conduct of the parties throughout the build. What are the other relevant circumstances here?

[78] They include the owners' variations to the contract extending the time of the build after practical completion date and the fact that most of the variations were sought well after the practical completion date had passed. There is little evidence of concern about delay on the part of the owners however until very shortly before issue of the Notice of Intention to Terminate the Contract on 22 August 2022.

[79] In an email of 10 August 2022 Mr Vardi wrote to the builder saying the builder "will be cognisant that the build has not yet completed Stage 6 with, amongst ither (sic) items, the following requiring completion", and then listed various items of work to be rectified as noted in Mr Matthews Issues report. He noted that the build was well delayed but stated:

... whilst we are keen to see the build progress we cannot make stage payments for works which are incomplete and or defective. The quantum of defects identified to date, the extent of the builds (sic) delays and the amount of works required to see completion are very concerning. We note that currently there is no plan of works showing in the Builders Calendar.

I have asked Greg to provide me advise (sic) regarding your email of the 09/08/22 as well as an indication of the cost of the outstanding works for a Stage 6 payment. He has advised that he will respond as soon as possible.

[80] Then Mr Vardi discusses drains that were supposed to be installed during stage 5 concluding "I am ambivalent as to whether the grates will fit .... And may require re-manufacture. This will need assessing prior to any payment."

[81] Finally he discussed making an adjustment for window installation, mentions a credit being required and that he has asked Mr Matthews for an indication of a reasonable amount, finishing "I will come back to you as soon as I have something back from Greg."

[82] On 11 August 2022 the parties agreed to vary the contract and allow the builder to perform some of the work scheduled for stage 6 during stage 7 and the owners paid $100,000 representing the stage 6 work done.

[83] On 17 August 2022 Mr Ryan responded to an email from the owners querying the absence of a skip bin on site, with Mr Ryan saying the bins were not scheduled at that moment and that once all outstanding invoices were paid the builder would "look at the scheduling moving forward."[13]

[84] There is limited evidence of the owners' discontent concerning the general construction delay in the build to that date. That suggests the general delay did not identify as a failure of due diligence on the part of the builder amounting to substantial breach of the contract to the owners. Rather, it appears to have been the threat not to schedule future work unless more money was paid that triggered issue of the Notice of Intention to Terminate the Contract.

[85] According to the builder's workers' time sheets the last work done on site was 3 August 2022. The Notice of Intention to Terminate the Contract issued on 22 August 2022. Despite receipt of the Notice of Intention to Terminate the Contract, no further work was done by the builder and that was the state of affairs when the owners gave notice of termination on 12 September 2022.

[86] On 1 September 2022, the final day of the 10 days notice to remedy breaches, Mr Vardi received a telephone call from Mr Ryan. Mr Vardi recorded the conversation and handed up a transcript he made of the conversation without the sound recording itself. Mr Ryan did not dispute that the telephone conversation had occurred nor the accuracy of the transcript in his statement of evidence filed in response to the owners material.

[87] The transcript records Mr Ryan saying to Mr Vardi that the builder had no "capability" of finishing the house. At hearing it was put to Mr Ryan that he had said those words to which he responded "Right. Okay."

[88] I accept the telephone conversation occurred and that Mr Ryan informed Mr Vardi during the conversation that the builder was unable to finish building the house and additionally, as recorded, that the owners would have to organise and finish the house.

[89] As at 1 September 2022 practical completion stage 7 was yet to be done. By the Gantt Chart stage 7 was allocated more days to complete than any other stage.

[90] There was perhaps no clearer evidence that the builder was unable to diligently perform the work under the contract than the statement made during the 10 day period set by the Notice of Intention to Terminate the Contract that it had no capacity to perform the work. That was additionally evidenced, if it be necessary, by the builder's failure to attend site to perform any work after 3 August 2022.

[91] I find that the builder was in substantial breach of the contract for failure to proceed with the works with due diligence when the owners terminated the contract on 12 September 2022.

[92] The other grounds relied on in the Notice of Intention to Terminate the Contract need not be addressed. On the evidence they cannot be categorised as substantial breaches under the contract or breaches of essential or non-essential terms of the contract sufficiently serious to justify termination under the general law.

Were the owners entitled to terminate the contract at common law for the builder's breach when they purported to do so?

[93] I find the owners were also entitled to rely on the statement by Mr Ryan to Mr Vardi as basis for termination under the general law.

[94] As explained by Dixon J in Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 per Dixon J:

But the rule is of general application in the discharge of contract by breach, and enables a party to any simple contract who fails or refuses further to observe its stipulations to rely upon a breach of conditions, committed before he so failed or so refused, by the opposite party to the contract as operating to absolve him from the contract as from the time of such breach of condition whether he was aware of it or not when he himself failed or refused to perform the stipulations of the contract. 'It is a long established rule of law that a contracting party, who, after he has become entitled to refuse performance of his contractual obligations, gives a wrong reason for his refusal. does not thereby deprive himself of a justification which in fact existed, whether he was aware of it or not....[14]

[95] The statement made by Mr Ryan on 1 September 2022 that the builder had no "capability" of finishing the work under the contract constituted clear repudiation of the contract by the builder prior to termination on 12 September 2022.

[96] The owners validly terminated the contract on the default of the builder on 12 September 2022. The decision of QBCC to that effect is confirmed.

[97] The parties should be given an opportunity to make submissions on costs.

[5] Hobbs Bell Pty Ltd v Pola (1995) 7 BPR 14,761 (McLelland CJ)

[7] Currie v Wright [2025] QCAT 529.

[8] Mazelow Pty Ltd v Herberton Shire Council [2002] QCA 119.

[9] According to Mr Vardi the owners only agreed to two variations adding seven days to the works, namely variations 2220 of 4 May 2022 and 2234 of 19 July 2022. The owners maintained they never agreed that the other five variations, 2222, 2221B, 2223C, 2225 and 2226 would add any extra days to the works.

[10] There are different dates for commencement of work and therefore practical completion identified by the parties, but that difference has no significance.

[12] Probuild Construction (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151, [118] (McColl JA) addressing a claim that the other party's conduct prevented the party from carrying out its obligations under the contract but where the party had had opportunity to claim an extension of time under the contract but did not (the prevention principle).

[14] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 377-8.