Berry t/as D&K Constructions v Pinter

[2006] QDC 18

DISTRICT COURT OF QUEENSLAND

CITATION:

Berry t/as D&K Constructions v Pinter [2006] QDC 018

PARTIES:

DANIEL BERRY t/as D&K CONSTRUCTIONS

Appellant

v

MARK PINTER

Respondent

FILE NO/S:

BD3824/05; M672/04

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

17 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2006

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – Discretion – no reasons given – approach to review of exercise of discretion

COSTS – Appeals – absence of reasons for order – proceeding wrongly started in court ordered to be started again in tribunal – plaintiff to pay costs in court

Commercial and Consumer Tribunal Act 2003 ss 40, 70, 71, 73

Bowden v ACI Operations Pty Ltd [2003] QCA 293 – cited.
Capylgin v Martin Fiebig Homes Pty Ltd [2003] QSC 382 – distinguished.
Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373 – applied.
Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 – cited.
Martin v Rowling [2005] QCA 128 – cited.
Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444 – not followed.
Pringle v Secretary of State for India (1888) 40 Ch D 288 – cited.
Pritchard v Howard Smith and Sons Ltd (1891) 4 QLJ 64 – cited.
Tamawood Ltd v Paans [2005] QCA 111 – applied.

COUNSEL:

J. Otto for the appellant

B.W.J. Kidston for the respondent

SOLICITORS:

John-Paul Mould for the appellant

James Varitimos for the respondent

1. On 23 January 2004 the appellant sued the respondent in the Magistrates Court claiming $13,037.10 as money payable under a building contract.  The respondent defended the claim, and by a defence filed with a notice of intention to defend on 23 February 2004, the defendant alleged that the plaintiff had actually been overpaid, and counterclaimed for the amount of the overpayment.  The issue between the parties appeared to turn on the terms of the contract between the parties.

1. The matter went through the usual interlocutory steps, and came on for trial on 24 July 2004 when, following some criticism by the magistrate, leave was given to each of the parties to amend the pleadings, the trial was adjourned, and costs were made costs in the cause.

1. After the adjournment of the trial the pleadings were extensively amended, the claim being converted (on 23 August 2004) to a claim for quantum meruit. The amended defence filed 9 September 2004 disputed in some detail what work was done for which the plaintiff was entitled to charge, and the reasonableness of the rates of charge, and alleged that the claim was barred by section 30 of the Domestic Building Contracts Act 2000. The counterclaim claimed a refund the whole of the amount paid as a result of the provisions of that Act, and also claimed that the work performed was negligent and defective, and that it will cost $16,000 to repair the defects. In an answer to the amended counterclaim filed 8 October 2004 the plaintiff…