Foster v Stewart

[2018] QCAT 84

CITATION:

Foster v Stewart and Anor [2018] QCAT 84

PARTIES:

Kristen Trevor Foster
(Applicant)

v

Adam Stewart and Isabella Stewart

(Respondents)

APPLICATION NUMBER:

BDL012-17

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   Mrs Isabella Stewart is to pay to Mr Kristen Trevor Foster the sum of $15,462.20, plus interest in the amount of $1,998.13, within 28 days of the date of this decision.

2.   The application insofar as it relates to Mr Adam Stewart is dismissed.

3.   There is no order as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – whether builder entitled to payment for variation – whether builder entitled to progress claim – where builder entitled to interest

Bankruptcy Act 1966 (Cth), s 58
Building and Construction Industry Payments Act 2004 (Qld), s 12, s 17
Queensland Building and Construction Commission Act 1991 (Qld), s 69

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. On 22 March 2016, Mr Foster, as the Contractor, and Mr and Mrs Stewart, as the Owners, entered into a Residential Renovation Contract – Level 2 (the Contract).  The works to be carried out included a new carport, new patio, new swimming pool, new gate house and internal fit out.

2. On 27 January 2017, Mr Foster lodged an application for domestic building disputes with the Tribunal.  He is seeking payment of $29,842.49, plus interest and costs, by Mr and Mrs Stewart.  Payment is sought in respect of three tax invoices:

   a)tax invoice 15177 issued on 7 December 2016 in the amount of $15,462.20;

   b)tax invoice 15180 issued on 16 December 2016 in the amount of $12,800.31; and

   c)tax invoice 15182 issued on 19 December 2016 in the amount of $1,579.98.

3. I will consider the claims against Mr and Mrs Stewart separately.

Claims against Adam Stewart

1. On 30 November 2017, the Tribunal was advised by the Official Trustee in Bankruptcy that Mr Stewart became bankrupt on 14 November 2017.

2. The Official Trustee drew the Tribunal’s attention to s 58(3) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), which provides that a creditor may only commence a legal proceeding or, if proceedings were on foot when the bankruptcy occurred, take any fresh step against the bankrupt, with the leave of a court.

3. Mr Foster does not have a court order entitling him to commence or continue with the proceeding. Having regard to the provisions of the Bankruptcy Act, the proceedings cannot proceed against Mr Stewart.

4. Under s 47 of the QCAT Act, the Tribunal may dismiss a proceeding which is misconceived. In light of s 58(3) of the Bankruptcy Act, I am satisfied that the application is misconceived…