C & E Pty Ltd v CMC Brisbane Pty Ltd - [2004] QCA 60

SUPREME COURT OF QUEENSLAND

CITATION:

C & E P/L v CMC Brisbane P/L (Administrators Appointed) [2004] QCA 60

PARTIES:

C & E PTY LTD ACN 086 482 840
(applicant/appellant)
v
CMC BRISBANE PTY LTD (ADMINISTRATORS APPOINTED) ACN 069 532 967
(respondent/respondent)

FILE NO/S:

Appeal No 9562 of 2003
SC No 6944 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2004

JUDGES:

McMurdo P, McPherson JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal

2.   Set aside the order made at first instance and instead declare that the building contract dated 21 September 2001 entered into between the appellant as proprietor and the respondent as contractor is a regulated contract under the Domestic Building Contracts Act 2000 (Qld)

3.   The respondent is to pay the appellant’s costs of and incidental to the application and of the appeal to be assessed

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where contract for construction of 10 separate houses – whether regulated contract under the Domestic Building Contracts Act 2000 (Qld)

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION ACTS AND CLAUSES – PARTICULAR ACTS AND ORDINANCES – QUEENSLAND – whether words "a detached dwelling" in the Domestic Building Contracts Act 2000 (Qld), s 7, should be read as including the plural, there being no sufficient indication to the contrary for the purposes of the Acts Interpretation Act 1954 (Qld), s 32C.

Acts Interpretation Act 1954 (Qld), s 4, s 14B, s 32C
Domestic Building Contracts Act 2000 (Qld), s 3, s 7, s 8
Queensland Building Services Authority Act 1991 (Qld)

COUNSEL:

R M Kelly for the appellant
P W Hackett for the respondent

SOLICITORS:

Lees Marshall Warnick for the appellant
Crouch & Lyndon for the respondent

McMURDO P: The appellant entered into a contract on 21 September 2001 with the respondent, a builder, to build ten houses at 53 Paragon Street, Yeronga, with associated road works, services and landscaping for a total sum of $4,040,000 plus GST. Each of the ten houses is separately classified under the Building Code; separately insured for $402,000; designed as a separate residence; is on land with a separate certificate of title and will be offered for sale separately. Work on the project began in October 2001 and a notice of practical completion issued on 21 February 2003. Disputes arose between the parties under the contract and the appellant applied to the Supreme Court for a declaration that the contract is a "regulated contract" under the Domestic Building Contracts Act 2000 (Qld) ("the Act"). This appeal is from the learned primary judge's refusal to make that declaration, dismissing the application with costs to be assessed.

The scheme of the Act

The purpose of the Act in regulating domestic building contracts is to achieve a reasonable balance between…

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: [2004] QCA 60
Decision Date: 12 March 2004

CaseChat Overview and Summary

The dispute between C & E Pty Ltd and CMC Brisbane Pty Ltd was heard by the Queensland Court of Appeal. The central issue revolved around the classification of a construction contract for ten separate houses as a regulated contract under the Domestic Building Contracts Act 2000 (Qld). The lower court had previously ruled that the contract was not regulated, but C & E Pty Ltd appealed this decision, arguing that the contract should be considered a regulated one. The key legal questions before the court were whether the contract fell within the definition of a regulated contract and whether the statutory term "a detached dwelling" in the Domestic Building Contracts Act 2000 (Qld) included the plural form.

The court examined the statutory language and its interpretation under the Acts Interpretation Act 1954 (Qld). It found that the plural form of "a detached dwelling" was not explicitly excluded and therefore should be interpreted to include multiple dwellings. Consequently, the court concluded that the contract for the construction of ten separate houses qualified as a regulated contract under the Act. The court also noted that the absence of any indication to the contrary in the statute supported the broader interpretation of the term.

In light of this interpretation, the court allowed the appeal, set aside the previous ruling, and declared that the building contract was indeed a regulated contract. The respondent was ordered to pay the appellant’s costs associated with both the application and the appeal, which were to be assessed. This decision reaffirmed the importance of interpreting statutory language broadly in the absence of explicit limitations, especially where such an interpretation aligns with the broader legislative purpose.

Orders

Orders of the court

1. Allow the appeal

2. Set aside the order made at first instance and instead declare that the building contract dated 21 September 2001 entered into between the appellant as proprietor and the respondent as contractor is a regulated contract under the Domestic Building Contracts Act 2000 (Qld)

3. The respondent is to pay the appellant’s costs of and incidental to the application and of the appeal to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	C & E P/L v CMC Brisbane P/L (Administrators Appointed) [2004] QCA 60
PARTIES:	C & E PTY LTD ACN 086 482 840 (applicant/appellant) v CMC BRISBANE PTY LTD (ADMINISTRATORS APPOINTED) ACN 069 532 967 (respondent/respondent)
FILE NO/S:	Appeal No 9562 of 2003 SC No 6944 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 March 2004
JUDGES:	McMurdo P, McPherson JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal 2. Set aside the order made at first instance and instead declare that the building contract dated 21 September 2001 entered into between the appellant as proprietor and the respondent as contractor is a regulated contract under the Domestic Building Contracts Act 2000 (Qld) 3. The respondent is to pay the appellant’s costs of and incidental to the application and of the appeal to be assessed
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where contract for construction of 10 separate houses – whether regulated contract under the Domestic Building Contracts Act 2000 (Qld) STATUTES – ACTS OF PARLIAMENT – INTERPRETATION ACTS AND CLAUSES – PARTICULAR ACTS AND ORDINANCES – QUEENSLAND – whether words "a detached dwelling" in the Domestic Building Contracts Act 2000 (Qld), s 7, should be read as including the plural, there being no sufficient indication to the contrary for the purposes of the Acts Interpretation Act 1954 (Qld), s 32C. Acts Interpretation Act 1954 (Qld), s 4, s 14B, s 32C Domestic Building Contracts Act 2000 (Qld), s 3, s 7, s 8 Queensland Building Services Authority Act 1991 (Qld)
COUNSEL:	R M Kelly for the appellant P W Hackett for the respondent
SOLICITORS:	Lees Marshall Warnick for the appellant Crouch & Lyndon for the respondent