DISTRICT COURT OF QUEENSLAND
CITATION:
Campbell v Fields & Anor [2013] QDC 206
PARTIES:
ALEXANDER WEST CAMPBELL
(first plaintiff)
and
MARY CLEAVER CAMPBELL
(second plaintiff)
v
ADRIAN KIM FIELDS
(first defendant)
and
CLASSIC QUEENSLANDERS PTY LTD
(ACN 114417588)(second defendant)
FILE NO/S:
D115/2010
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Maroochydore District Court
DELIVERED ON:
6 September 2013
DELIVERED AT:
Maroochydore District Court
HEARING DATE:
23 August 2013
JUDGE:
Long SC, DCJ
ORDER:
The application for transfer of this proceeding to QCAT is dismissed.
CATCHWORDS:
PROCEDURE – JURISDICTION - ORDER TRANSFER OF PROCEEDING TO QCAT - Where proceedings regularly commenced in the District Court – where defendants seek transfer of proceeding to the Queensland Civil and Administrative Tribunal under s 53 of the Queensland Civil and Administrative Tribunal Act 2009 - Whether the court should exercise discretion and order that the proceedings or part of the proceedings be transferred to QCAT – unfettered discretion – relevant considerations, including delay in making application – whether agreement to refer dispute to the Queensland Building Tribunal is a relevant consideration
BUILDING AND ENGINEERING CONTRACTS – recovery of monies – variations under Part 7 of the Domestic Building Contracts Act 2000 – whether s 84(2) of the Domestic Building Contracts Act 2000 affects pursuit of claims otherwise based upon specific contractual entitlement
Commercial and Consumer Tribunal Act (Qld) 2003 s 40(1)
Domestic Building Contracts Act (Qld) 2000 s 79, s 84
Queensland Building Services Authority Act (Qld)1991 s 77
Queensland Building Tribunal Act (Qld) 2000 s 117(1)
Queensland Civil and Administrative Tribunal Act (Qld) 2009 sch 1, s 53, s 244, s 247, s 248
Brookes v Burns Philp Trustee Co Ltd (1969) 121 CLR 432
Lieberman v Morris (1944) 69 CLR 69
March and Spencer v Metrotek Constructions Pty Ltd No 3832 of 2010, 24, February 2011
COUNSEL:
Mr A Harding for the applicant
Mr T Nielsen for the respondent
SOLICITORS:
Garland Waddington Solicitors for the applicant
Butler McDermott Solicitors for the respondent
Introduction
By application filed on 26 March 2013, the applicants, who are the defendants in an extant proceeding in this court, seek an order pursuant to s 53 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) for the transfer of that proceeding to QCAT and for additional consequential orders.
The proceeding so sought to be transferred was commenced by the respondents/plaintiffs, by the filing of a claim and statement of claim on 21 May 2010. The disputes which are the subject of the proceeding so commenced, arise from the performance of what is described as “a standard Queensland Master Builders Association Residential Building Contract… dated 9 March 2008”.
The claim (which has not been since amended) is for:
1. Damages for breach of contract in the sum of $107,109.45/$117,608.58 (being for the cost of rectification of defective building work);
2. “The sum of $17,993.55 damages by way of set-off for defective workmanship”;
3. Interest pursuant to the Supreme Court Act 1995; and
4. Costs.
Although there…
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- AGLC
- Campbell v Fields & Anor [2013] QDC 206
- Case
- [2013] QDC 206
- Decision Date
CaseChat Overview and Summary
The court noted that the decision to transfer proceedings to QCAT was discretionary and was not to be exercised lightly. The court considered the delay in making the application, which weighed against the defendants, as well as the potential implications of referring the dispute to the Queensland Building Tribunal. The court found that the delay was significant and that an agreement to refer the dispute to the Queensland Building Tribunal was not a relevant consideration in the exercise of the court's discretion. The court held that the defendants' application for transfer should be dismissed, and the proceedings would remain in the District Court.
In summary, the court exercised its discretion and dismissed the application for transfer of the proceedings to QCAT. The court emphasised the importance of considering the delay in making the application and found that the agreement to refer the dispute to the Queensland Building Tribunal was not a relevant factor in its decision. The proceedings would continue in the District Court, and the plaintiff's claims for recovery of monies under the Domestic Building Contracts Act 2000 would be determined there.
Orders
Orders of the court
The application for transfer of this proceeding to QCAT is dismissed.
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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