A L Builders Pty Ltd v Fatseas & Anor

CITATION: A L Builders Pty Ltd v Fatseas & Anor [2014] QCATA 171

PARTIES:	A L Builders Pty Ltd (Applicant/Appellant)
v
Nicholas Fatseas Tricia Fatseas (Respondent)

APPLICATION NUMBER: APL156-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver
Member Howe

DELIVERED ON: 9 July 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Appeal dismissed.

CATCHWORDS:

EXERCISE OF DISCRETION – where application to determine a preliminary issue before hearing of the substantive proceeding – where determination of the application involved the exercise of discretion having regard to the circumstances of the case – where application dismissed – whether the tribunal erred in the exercise of discretion

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 28 and 146

House v R (1936) 55 CLR 499;
Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94 CLR 621 at 627;
Rodgers v Rodgers (1964) 114 CLR 608
Reading Australia Pty Ltd v Australia Mutual Providence Society (1999) 217 ALR 495;
Re Cotton Crops Pty Ltd [1988] 1 QD R 482; CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The parties to this appeal are involved in a complex building dispute. The dispute relates to building work carried out by the applicant at the respondents’ premises on the Gold Coast.

2. One of the issues at the heart of the dispute is whether the parties entered into a fixed price contract or a costs plus contract. Depending on the finding as to the type of contract that governed the legal relationship between them, certain consequences would flow. However, even if it was determined to be a costs plus contract, consideration would be necessary with respect to compliance with s 55 of the Domestic Building Contracts Act 2000 (Qld).

3. The substantive proceeding had been listed for hearing early this year however, prior to the hearing, the applicant filed an application asking the Tribunal to determine some preliminary issues. They were:

   (a)Whether the contract between the applicant and the respondents was a fixed price contract or a costs plus contract;

   (b)The relevant terms of the contract in so far as they bear upon the rights of the parties as relevant in the proceedings;

   (c)Which of the alleged defects in the house building, the subject of the proceedings, remain in issue as a consequence of any determinations referred to in (a) and (b) above.

4. The application was opposed and on 21 March 2014 the Tribunal made an order dismissing the applicant’s application.

Grounds of Appeal

1. On 4 April 2014 the applicant filed an application for leave to appeal or appeal. The grounds of appeal contend generally, that the learned Member erred in the exercise of his discretion in not ordering a ‘trial’ of the preliminary issues; was wrong and contrary…