Callum Constructions v Anderson - [2011] QCAT 37

CITATION:

Callum Constructions v Anderson [2011] QCAT 37

PARTIES:	Callum Constructions Pty Ltd
v
Mr Greg Anderson

APPLICATION NUMBER:

BDL271-10

MATTER TYPE:

Building matters

HEARING DATE:

2 February 2011

HEARD AT:

Brisbane

DECISION OF:

Anne Forbes, Member

DELIVERED ON:

2 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The application to strike out is dismissed.

There will be no order as to costs

CATCHWORDS :

Queensland Civil and Administrative Tribunal Act 2009 s 47 – whether claim against employed engineer an arguable cause of action – application under s 47 dismissed.

APPEARANCES and REPRESENTATION (if any):

The application was determined on the papers by the Tribunal. No parties were present at the determination.

REASONS FOR DECISION

On 9 August 2010 Callum Constructions Pty Ltd (“Callum”) filed an application (“the initial application”) under the Queensland Building Services Authority Act 1991 (“the BSA Act”) seeking payment by the Respondent Gregory Lloyd Anderson “of an amount owing to the BSA, $6,250 for “defective engineering documentation which has led to timber beam deflection”. The claim has since been increased to $8,615.00: Applicant’s submissions filed 9 December 2010, paragraph 1.

The Tribunal has jurisdiction in “building disputes” under s 77 of the BSA Act. According to s 75(1)(f) of that Act, “tribunal work” includes “the preparation of plans, specifications or bills of quantity for the carrying out of tribunal work” and according to s 75(4), a person carries out tribunal work by providing advisory services relating to tribunal work.

From 13 January 2003 to 15 May 2005 the Respondent was employed as a civil engineer by Warren Brown and Associates Pty Ltd (“the Brown company”), and in that period the company was engaged by Kyco Developments to prepare and draft a design for a building at 14-16 Musgrave Terrace, Alderley (“the Alderley building”).

Copies of that design, tendered by each party, bear the signature “G Anderson FIEAUST RPEQ 1359” followed by a wavy line and the printed name, “Warren Brown”. At all material times Warren Brown was a director of Warren Brown and Associates Pty Ltd. (I understand that the letters “FIE” mean “Fellow of the Institute of Engineers” and “RPEQ”, “Registered Professional Engineer Queensland”.)

Anderson says that he “did not personally undertake the structural design of the framing in question” but concedes that he signed a relevant drawing “as an employee of Warren Brown and Associates Pty Ltd for Warren Brown in his absence and on his instructions”: affidavit of Gregory Lloyd Anderson sworn 30 November 2010.

Copy of an Employment Contract between Brown and the Respondent, dated 13 January 2003, and tendered by the Respondent, records that it “shall create the relationship of employer and employee [and that] it is not [the parties’] intention to create any other relationship and, in particular, the relationship of principal and contractor or the relationship of partners”.

It appears that about 4 years after the implementation of the subject design, the Building Services Authority found that a timber beam in the Alderley building was inadequate for…

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 Callum Constructions v Anderson

Details

AGLC: Callum Constructions v Anderson [2011] QCAT 37
Case: [2011] QCAT 37
Decision Date: 2 February 2011

CaseChat Overview and Summary

In the case of Callum Constructions v Anderson, the parties involved were Callum Constructions, an engineering firm, and Anderson, an engineer employed by Callum Constructions. The dispute arose from a claim made by Callum Constructions against Anderson, alleging professional negligence and breach of contract. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the tribunal was whether the claim against Anderson constituted an arguable cause of action under section 47 of the Queensland Civil and Administrative Tribunal Act 2009.

The tribunal examined the evidence and arguments presented by both parties to determine if the claim met the threshold of being arguable. The tribunal considered the nature of the relationship between the engineer and the employer, the scope of the engineer's duties, and the factual basis of the alleged negligence and breach of contract. After a thorough review, the tribunal concluded that the claim did indeed present an arguable cause of action, as it was not frivolous, vexatious, or lacking in substance.

As a result, the tribunal dismissed the application to strike out the claim against Anderson. The tribunal found that the allegations, though contested, warranted further investigation and consideration in a trial. The tribunal did not deem it appropriate to make an order as to costs at that stage of the proceedings. The matter will proceed to trial to determine the merits of the claims and defences put forward by the parties.

Orders

Orders of the court

1. The application to strike out is dismissed.

1. There will be no order as to costs

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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