Aurisch v Millsons Pty Ltd - [2011] QCAT 245

CITATION:

Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245

PARTIES:	Barry Charles Aurisch and Sheila Denise Aurisch
v
Millsons Pty Ltd trading as Dixon Homes Rockhampton (First Respondent) LA & SR Thorne Pty Ltd trading as Bowler Geotechnical Capriciornia (Second Respondent) Tapsell Consulting Engineers Pty Ltd (Third Respondent)

APPLICATION NUMBER:

BD408-09

MATTER TYPE:

Building matters

HEARING DATE:

4 May 2011

HEARD AT:

Brisbane

DECISION OF:

Ms Michelle Howard, Member

DELIVERED ON:

4 May 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the time limit fixed for the start of a proceeding under section 51 of the Domestic Building Contracts Act 2000, be extended pursuant to section 61 of the Queensland Civil and Administrative Tribunal Act 2009 to allow the applicants’ until 9 December 2010 to file their claim for breach of statutory warranties;

2. That the time for the filing of the applicants amended statement of claim contained in direction 1 of the directions made on 29 November 2010 be extended to 9 December 2010.

CATCHWORDS:

BUILDING DISPUTE – Domestic Building Contracts Act 2000 s 51 – whether time limit for starting a proceeding for a breach of warranty can be extended under Queensland Civil and Administrative Tribunal Act 2009 s 61 – effect of Limitation of Actions Act 1974 s 43A – relevant factors in the exercise of discretion to extend time

Domestic Building Contracts Act 2000, ss 18, 42, 43, 44, 51, 55
Limitation of Actions Act 1974, ss 7, 43A
Queensland Building Services Authority Act 1991, s 77, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009, ss 6(2), 6(7), 61

Australian Iron & Steel Ltd v Hoogland (1962)
108 CLR 471, applied
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, considered
Reynolds v Aluma-Lite Products Pty Ltd (No 2) [2010] FCA 914 (25 August 2010), applied
R v Roberts, ex parte Jacob [2002] QCA 87, considered

Gallagher v QBSA [2010] QCAT 383, applied
Ryan v Cornwall [2010] QCAT 212, not followed

APPEARANCES and REPRESENTATION (if any):

This application was heard on the papers pursuant to section 32 of the Queensland Civil and Administrative Appeal Tribunal Act 2009, with the benefit of written submissions as follows.

APPLICANT:	Mr P Travis of Counsel, instructed by Aden Lawyers
RESPONDENT:	CLS Lawyers

REASONS FOR DECISION

Mr and Mr Aurisch (the applicants) have previously filed an application which sought damages for negligence. The proceedings were commenced against a builder (Millsons Pty Ltd trading as Dixon Homes Rockhampton). Later, other parties were joined as respondents to the proceedings, namely a soil tester (LA and SR Thorne Pty Ltd trading as Bowler Geotechnical Capricornia); and engineers (Tapsell Consulting Engineers Pty Ltd). The respondents were involved in the construction of a house property which the Aurischs’ subsequently purchased, and in respect of which the claim in negligence arises. They purchased the house on 5 April 2004 from the original owner, Ravcorp Developments Pty Ltd which was a developer.…

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.

Continue reading Aurisch v Millsons Pty Ltd

Details

AGLC: Aurisch v Millsons Pty Ltd [2011] QCAT 245
Case: [2011] QCAT 245
Decision Date: 4 May 2011

CaseChat Overview and Summary

Aurisch brought a claim against Millsons, alleging breaches of statutory warranties under the Domestic Building Contracts Act 2000. The court was asked to determine whether the time limit for starting a proceeding for a breach of warranty could be extended under the Queensland Civil and Administrative Tribunal Act 2009. The matter also involved the effect of the Limitation of Actions Act 1974.

The court needed to decide whether the time limit fixed for the start of a proceeding under section 51 of the Domestic Building Contracts Act 2000 could be extended under section 61 of the Queensland Civil and Administrative Tribunal Act 2009. The relevant factors in exercising the discretion to extend time were considered, including the reasons for the delay, the prospects of success of the claim, and the effect on other parties. The court also examined the impact of section 43A of the Limitation of Actions Act 1974 on the exercise of the discretion.

The court found that the applicants had provided satisfactory reasons for the delay in filing their claim, and that the prospects of success of the claim were good. The court also considered that extending the time limit would not have an adverse effect on the respondent. The court exercised its discretion under section 61 of the Queensland Civil and Administrative Tribunal Act 2009 to extend the time limit for the start of a proceeding, allowing the applicants until 9 December 2010 to file their claim for breach of statutory warranties.

The court also extended the time for the filing of the applicants' amended statement of claim to 9 December 2010, in line with the directions made on 29 November 2010. The court's decision was based on a careful consideration of the relevant factors, and the exercise of its discretion under the applicable legislation.

Orders

Orders of the court

1. That the time limit fixed for the start of a proceeding under section 51 of the Domestic Building Contracts Act 2000, be extended pursuant to section 61 of the Queensland Civil and Administrative Tribunal Act 2009 to allow the applicants’ until 9 December 2010 to file their claim for breach of statutory warranties;

2. That the time for the filing of the applicants amended statement of claim contained in direction 1 of the directions made on 29 November 2010 be extended to 9 December 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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