Campbell v Fields

[2013] QDC 206

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

1. 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.

1. 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”. 

1. 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.

1. Although there…