Allcoast Kitchens Pty Ltd v Rossiter & Cram

[2010] QCAT 314

CITATION: Allcoast Kitchens Pty Ltd v Rossiter & Cram [2010] QCAT 314

PARTIES:	Allcoast Kitchens Pty Ltd
v
Mr Michael Rossiter & Ms Suzanne Cram

APPLICATION NUMBER:   BD394-09

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 13 July 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

The application by the respondents is dismissed. The proceeding is set down for a compulsory conference on a date to be advised by the registry.  A copy of this decision be provided to the liquidators of Seasun Constructions Pty Ltd who may make submissions to the tribunal and the parties as to their continued interest in this proceeding. The parties may file and serve any further material relating to the matters raised in this decision no later than seven days before the compulsory conference.

CATCHWORDS :  Application to strike out proceeding – standing to bring proceedings - whether part of wider contract – where quote given in trading name – where proceedings brought in company name – whether assignment of contract

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. The applicants Mr Michael Rossiter and Ms Suzanne Cram (“Rossiter and Cram”) have applied to have this proceeding struck out on the grounds that Allcoast Kitchens Pty Ltd has no standing to sue as it was not a party to the building contract between the applicants and Seasun Constructions Pty Ltd (“Seasun”).

2. In support of the application to strike out, Rossiter and Cram have provided the tribunal with:

a)Letter Rossiter and Cram to QCAT dated 10 June 2010;

b)Allcoast Kitchens colour selection sheets signed by the “client”;

c)Letter Allcoast Kitchens to Rossiter dated 28 October 2008;

d)ASIC search of Allcoast Kitchens Pty Ltd dated 13 May 2010.

e)Two quotes for the rectification of alleged defects.

1. The letter to QCAT dated 10 June 2010 is in the form of a submission. I do not accept it as proof of the matters complained of in that letter.

2. The cost of the rectification of the alleged defects is not relevant to this inquiry.

3. The argument on behalf of Rossiter and Cram is that:

a)They contracted with Seasun for renovation of their home.

b)Allcoast Kitchens Pty Ltd is a subcontractor of Seasun.

c)The kitchen renovations were carried out under the Seasun building licence.

d)Allcoast Kitchens Pty Ltd was incorporated on 22 December 2008, after the date that its quote was accepted. Therefore, Allcoast Kitchens Pty Ltd could not have been the contracting party.

1. Allcoast Kitchens Pty Ltd says:

a)There was a separate contract for the renovation of the kitchen.

b)At the time of the quote, Allcoast Kitchens and Seasun Constructions were trading names of Seasun. The company operated other trading names; each trading name operated its own business, with its own books and employees.

c)In December 2008, the business of Allcoast Kitchens was purchased by Cranach Pty Ltd. The sale included work-in-progress, so this job was assigned to the new entity.

d)Allcoast Kitchens Pty Ltd undertook the work and invoiced Rossiter and Cram.

1. It is common ground that a quote for the kitchen renovation was provided by Seasun, trading as Allcoast Kitchens. I am persuaded by the separate quote from Allcoast Kitchens, and in the absence of any contrary evidence, that the kitchen renovation was a separate contract from the home renovation contract.

2. What is not clear is whether the work was performed by Seasun or by Allcoast Kitchens Pty Ltd and what knowledge Rossiter and Cram had of any transfer of the business. The parties have not provided the tribunal with any material that may assist in resolving these questions. For example:

a)To whom did Rossiter and Cram pay the deposit?

b)Which entity invoiced Rossiter and Cram?

c)To which entity did Rossiter and Cram’s address orders for materials and fittings for the kitchen?

1. An essential element of a valid assignment at law is that notice must be given to the “obligor”, the other party to the contract who has an obligation to perform acts under the contract. Notice can be given in many ways at need not be given at the time of the assignment.

10. The parties have provided no information at all on whether Rossiter and Cram received notice of the assignment. If notice of the assignment was not given to Rossiter and Cram, and cannot now be given, then the assignment can only take effect in equity and the appropriate applicants in this proceeding are both the assignor, Seasun Constructions Pty Ltd, and the assignee, Allcoast Kitchens Pty Ltd.

11. Section 42 of the Queensland Civil and Administrative Tribunal Act enables me to join Seasun Constructions Pty Ltd as a party to this proceeding. That course of action is preferable to striking out this proceeding, even though Seasun Constructions Pty Ltd is under external administration. However, a direction to that effect is premature, given the paucity of material before me.

12. The application by Rossiter and Cram is dismissed.  I direct:

a)The proceeding be set down for a compulsory conference on a date to be advised by the registry.

b)A copy of this decision be provided to the liquidators of Seasun Constructions Pty Ltd who may make submissions to the tribunal and the parties as to their continued interest in this proceeding.

c)The parties may file and serve any further material relating to the matters raised in this decision no later than seven days before the compulsory conference.