Felstead v Bundaberg Homes Pty Ltd

Case [2016] QCAT 294


CITATION: Felstead v Bundaberg Homes Pty Ltd [2016] QCAT 294
PARTIES: David Nigel Felstead
Kim Felstead
(Applicants)
v
Bundaberg Homes Pty Ltd
(Respondent)
APPLICATION NUMBER: BDL145-15
MATTER TYPE: Building matters
HEARING DATE: 10 March 2016, 20 June 2016
HEARD AT: Brisbane
DECISION OF: Senior Member Brown
DELIVERED ON: 11 July 2016
DELIVERED AT: Brisbane
ORDERS MADE:

1.    The application for miscellaneous matters is dismissed.

2.    David Nigel Felstead and Kim Felstead must file in the Tribunal two (2) copies and give to Bundaberg Homes Pty Ltd one (1) copy of a further amended application by:

4:00pm on 19 July 2016

3.    Bundaberg Homes Pty Ltd must file in the Tribunal two (2) copies and give to David Nigel Felstead and Kim Felstead one (1) copy of an amended response to the further amended application by:

4:00pm on 2 August 2016

4.    David Nigel Felstead and Kim Felstead must file in the Tribunal two (2) copies and give to Bundaberg Homes Pty Ltd one (1) copy of a reply to the amended response by:

4:00pm on 16 August 2016

5.    David Nigel Felstead and Kim Felstead must file in the Tribunal two (2) copies and given to Bundaberg Homes Pty Ltd one (1) copy of any further statements of evidence upon which they intend to rely by:

4:00pm on 30 August 2016

6.    Bundaberg Homes Pty Ltd must file in the Tribunal two (2) copies and give to David Nigel Felstead and Kim Felstead one (1) copy of any further statements of evidence upon which they intend to rely by:

4:00pm on 13 September 2016

7.    The application is listed for an Experts’ Conclave to commence in Brisbane at 9:30am on 10 October 2016.

8.    The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:

a.    for the conduct of the conclave; and

b.    for the conduct of the proceeding.

9.    The parties must file in the Tribunal two (2) copies of:

a.    The name, specialisation and contact details of the experts to participate in the Conclave; and

b.    An agreed list of issues to be considered by the experts at the Conclave; and

c.    A list of documents provided to their experts by:

4:00pm on 19 September 2016

10. If the parties are unable to agree on a set of issues, each party must file in the Tribunal two (2) copies and give to each other one (1) copy of a list of issues they propose to be considered by the experts at the Conclave, by:

4:00pm on 26 September 2016

11. In either case the Tribunal will settle the list of issues to be considered by the experts at the Conclave and will provide the settled list to each party and to the experts, by:

4:00pm on 3 October 2016

12. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.

13. If the experts…

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AGLC
Felstead v Bundaberg Homes Pty Ltd [2016] QCAT 294
Case
[2016] QCAT 294
Decision Date

CaseChat Overview and Summary

The parties to the case were David Nigel Felstead and Kim Felstead, who were the applicants, and Bundaberg Homes Pty Ltd, who was the respondent. The applicants brought an action against the respondent for negligence and pure economic loss in relation to a building dispute. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The main legal issues in the case were whether the applicants' claim was statute-barred, and whether the applicants had complied with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld). The respondent argued that the applicants' claim was statute-barred, while the applicants relied on the Limitation of Actions Act 1974 (Qld) and alleged fraud.

The court found that the applicants' claim was statute-barred, as it was brought more than three years after the accrual of the cause of action. The court also found that the applicants had not complied with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld). The court dismissed the application for miscellaneous matters and ordered the applicants to file further amended applications, responses, and statements of evidence by specified dates. The court also ordered an Experts’ Conclave and a Directions Hearing to be held at specified dates. The court further ordered that the experts' joint report would be the experts' evidence in chief, and that parties may not raise matters not already mentioned in the joint report without the Tribunal's leave. The court also ordered that the costs of the application would be determined on the papers by written submissions from the parties, and without an oral hearing, not before a specified date.

Orders

Orders of the court

1. The application for miscellaneous matters is dismissed.

2. David Nigel Felstead and Kim Felstead must file in the Tribunal two (2) copies and give to Bundaberg Homes Pty Ltd one (1) copy of a further amended application by:

4:00pm on 19 July 2016

3. Bundaberg Homes Pty Ltd must file in the Tribunal two (2) copies and give to David Nigel Felstead and Kim Felstead one (1) copy of an amended response to the further amended application by:

4:00pm on 2 August 2016

4. David Nigel Felstead and Kim Felstead must file in the Tribunal two (2) copies and give to Bundaberg Homes Pty Ltd one (1) copy of a reply to the amended response by:

4:00pm on 16 August 2016

5. David Nigel Felstead and Kim Felstead must file in the Tribunal two (2) copies and given to Bundaberg Homes Pty Ltd one (1) copy of any further statements of evidence upon which they intend to rely by:

4:00pm on 30 August 2016

6. Bundaberg Homes Pty Ltd must file in the Tribunal two (2) copies and give to David Nigel Felstead and Kim Felstead one (1) copy of any further statements of evidence upon which they intend to rely by:

4:00pm on 13 September 2016

7. The application is listed for an Experts’ Conclave to commence in Brisbane at 9:30am on 10 October 2016.

8. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:

a. for the conduct of the conclave; and

b. for the conduct of the proceeding.

9. The parties must file in the Tribunal two (2) copies of:

a. The name, specialisation and contact details of the experts to participate in the Conclave; and

b. An agreed list of issues to be considered by the experts at the Conclave; and

c. A list of documents provided to their experts by:

4:00pm on 19 September 2016

10. If the parties are unable to agree on a set of issues, each party must file in the Tribunal two (2) copies and give to each other one (1) copy of a list of issues they propose to be considered by the experts at the Conclave, by:

4:00pm on 26 September 2016

11. In either case the Tribunal will settle the list of issues to be considered by the experts at the Conclave and will provide the settled list to each party and to the experts, by:

4:00pm on 3 October 2016

12. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.

13. If the experts prepare a joint report, that report will be the experts’ evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.

14. Except with the Tribunal’s leave, a party may not:

a. raise a matter not already mentioned in the joint report.

b. submit evidence from an expert (whether or not they participated in the conclave) that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report.

c. submit evidence from any other expert about matters mentioned in the joint report.

15. The application is listed for a Directions Hearing on a date to be advised.

16. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of submissions as to the costs of the application which will include any submissions on fixing the costs, by:

4:00pm on 25 July 2016.

17. The costs of the application will be determined on the papers by written submissions from the parties, and without an oral hearing, not before:

4:00pm on 25 July 2016.

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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