Ainsworth v RJ Neller Building Pty Ltd - [2008] QDC 272

[2008] QDC 272

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1247 of 2007

KJERULF DAVID AINSWORTH

Plaintiff

and

R J NELLER BUILDING PTY LTD

And

PHILIP MARTIN

First Defendant

Second Defendant

BRISBANE

..DATE 03/11/2008

ORDER

CATCHWORDS: Uniform Civil Procedure rules r 5, r 165, r 171,
r 280, r 483 re Building and Construction Industry Payments Act 2004 s 3 - separate determination that plaintiff a "resident owner" for purposes of the Act (being upon defendant builder's entitlement to bring a payment claim before an adjudicator) - argument that a person ordinarily resident elsewhere could not qualify rejected - plaintiff's claims for declaration that nothing owed to builder (notwithstanding adjudicator's unsatisfied awards in its favour) and for damages for alleged deficiencies in the work sought to be struck out or permanently stayed - grounds for defendant's application included that plaintiff's expert report foreshadowed in the pleading identifying unsatisfactory work as other particulars of it, were not forthcoming, plaintiff had "gutted" the premises so that while his experts had had access to them to examine the work, there was now nothing for the defendant's expert to see - plaintiff refused to allow defendant's people access to premises within 7 day period nominated in court's order, although offering access two days later.

HIS HONOUR: On the 14th of August, the court's determination

whether, for the purposes of the Building and Construction

Industry Payments Act 2004, section 3, the plaintiff was a

"resident owner" was deferred because of the unavailability

for cross-examination on the day of Mr Ainsworth, he being out

of the country. I refer to the reasons available at [2008]

QDC 199, which, having looked at them again, I may make some

minor corrections to, to deal with typing errors.

Today Mr Ainsworth was made available for cross-examination.

The consequence of his being a resident owner for the purposes

of the Act was to take the relevant building contract, which

was entered into in the latter part of 2005, out of the

purview of the Act. See section 3 subsection (2)(b). Mr Neller signed the contract on 13 October 2005, Mr Ainsworth on the 31st. The reasons I have referred to indicate that Mr Ainsworth failed to raise this point in the way the Act envisaged. However, the first defendant in effect raised it by asserting, and probably unnecessarily, that Mr Ainsworth was not a resident owner. He quickly responded to that assertion by claiming that he was one, which it seems to me raised the issue for the adjudicator who determined it adversely to Mr Ainsworth on the basis, it would seem to me, that the place was not to be his principal residence. In my view, that fails to apply the correct test.

There are contexts, particularly in revenue legislation, where

some sort of concession, for example, in respect of stamp duty or a land tax otherwise exigible, is made available in respect of a principal place of residence. For obvious reasons, the

legislature wishes to limit citizens…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] QDC 272
Decision Date: 3 November 2008

CaseChat Overview and Summary

In the District Court of Queensland, Kjeruf David Ainsworth, the plaintiff, sought a declaration that he owed nothing to RJ Neller Building Pty Ltd, the first defendant, and damages for alleged deficiencies in the work. The first defendant applied to have the plaintiff's claims struck out or permanently stayed. The legal issues before the court were whether the plaintiff was a "resident owner" for the purposes of the Building and Construction Industry Payments Act 2004 and whether the plaintiff's claims should be struck out or permanently stayed.

The court found that the plaintiff was a resident owner for the purposes of the Act, as he had the intention to reside in the premises within six months of completion. The court rejected the first defendant's argument that the plaintiff could not be a resident owner if he had another principal residence. The court also found that the plaintiff's claims should not be struck out or permanently stayed, as the first defendant had not demonstrated that they would be unable to get a fair trial due to the destruction of evidence.

The court ordered that the first defendant pay the plaintiff's costs of the hearing. The court reserved the costs of the first defendant's attendance on the previous hearing, which would be determined at a later date.

Orders