Fitzpatrick v Kenfrost 1987 Pty Ltd

[2012] QCAT 625

CITATION: Fitzpatrick v Kenfrost 1987 Pty Ltd [2012] QCAT 625

PARTIES:	Prudence Fitzpatrick
v
Kenfrost 1987 Pty Ltd

APPLICATION NUMBER: BDL223-12

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 5 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:      1.    The application for miscellaneous matters filed by the applicant on 19 October 2012 is refused.

CATCHWORDS:

BUILDING – where application for work to be done – where consent orders which resolve the claim – where consent orders require rectification work – where application filed before deadline for completion of work

Queensland Civil and Administrative Tribunal Act 2009, s 58

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Ms Fitzpatrick bought a house from Richardson Plant Hire Pty Ltd.  Kenfrost 1987 Pty Ltd built the house for Richardson.

2. Ms Fitzpatrick has some complaints about the house, including a complaint that water does not drain away from the house as required by the Building Code of Australia. She filed an application for miscellaneous matters asking for a direction in these terms:

   Raise irrigation box so that landscaping can be effected to enable drainage away from the house and into the box drains installed 09/10/2012.

3. The tribunal does have power to make interim orders to protect a party’s position for the duration of the proceeding or to secure the effectiveness of the exercise of its jurisdiction for the proceeding.[1]

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 58.

4. Neither of those situations is applicable to Ms Fitzpatrick’s position.  She has not provided any evidence that there is an urgent need for the work.

5. Further, as the BSA inspector pointed out, there is doubt as to whether Kenfrost is responsible for the work.

6. There is an additional complication.  On 27 August 2012, the parties consented to orders of the tribunal which provided that Kenfrost would complete drainage work by 31 October 2012.  Ms Fitzpatrick filed her application for miscellaneous matters on 19 October 2012.  She does not explain why she made the application before the deadline.

7. The consent orders also provide that, on completion of the works, Ms Fitzpatrick will withdraw her claim against Kenfrost in full and final satisfaction of her claim.  If the work the subject of the application for miscellaneous matters is not work contemplated by the orders of 27 August, it seems likely that Ms Fitzpatrick’s rights have been compromised by the orders.  In those circumstances, Kenfrost could rightfully assert that the tribunal had no power to order further works.