Budulica v Optima Construction Services

[2020] QCAT 235

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Budulica v Optima Construction Services & Ors [2020] QCAT 235

PARTIES:

SLAVICA (SYLVIA) BUDULICA

(applicant)

v

OPTIMA CONSTRUCTION SERVICES

(first respondent)

MAREK KRAMER

(second respondent)

MOSHEN RAHMAIAN

(third respondent)

APPLICATION NO/S:

BDL143-19

MATTER TYPE:

Building matters

DELIVERED ON:

25 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

1.   The application and counter-applications are dismissed.

2.   The Application to join Optima Constructions Australia Pty Ltd is refused.

3.   Any party seeking an order for costs must file in the Tribunal and give a copy to the other parties of submissions and any supporting evidence on costs, by 4:00 pm on 21 August 2020.

4.   If submissions are filed under Direction 4, the other parties must file submissions and any evidence in response, by 4:00pm on 25 September 2020.

5.   Any application for costs will then be decided by the Tribunal on the papers and without an oral hearing.

CATCHWORDS:

 CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where contract of sale included condition requiring rectification and additional improvements – where purchaser alleges rectification and additional improvements were either not performed or were defective – where purchaser claims loss because rectification and additional improvements were defective 

Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Stewart v Scott [2020] QCAT 110

Salomon v Salomon & Co Ltd [1897] AC 22
Lee v Lee’s Air Farming Ltd [1961] AC 12
DMW v CGW (1982) CLR 491
Fraser Property Developments P/L v at Sommerfeld & Ors [2005] QCA 134
Watford v Office Shop Renovations Australia Pty Ltd [2013] QCAT 122
Tait Management Services Pty Ltd t/as BTA v Rosa [2012] QCAT 564
Murtagh v Queensland Building and Construction Commission [2018] QCAT 258
Felstead v Bundaberg Homes Pty Ltd [2016] QCAT 294
Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38

Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192

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

REASONS FOR DECISION

Issues to be decided

1. The following are the issues to be decided in these proceedings:

   (a)Is this a building dispute as defined by the Queensland Building andConstruction Commission Act 1991 (Qld) (the QBCC Act), i.e. does the Tribunal have jurisdiction to hear this matter under the QBCC Act?

   (b)If the answer to (a) is yes, then:

   (i)      who are the appropriate respondents?

   (ii)      should the Application for Miscellaneous Matter filed on 4 September 2019 be granted or refused? Alternatively,

   (c)If the answer to (a) is no should the substantive application in BDL143-19 and the counterclaims be dismissed due to the Tribunal’s lack of jurisdiction?

Background

1. Ms Budulica (the applicant and the buyer) purchased a house from Optima Constructions Australia Pty Ltd ABN 59 609 651 407 (the seller; hereafter “Constructions”; it may immediately be noted that this…