SUPREME COURT OF QUEENSLAND
CITATION:
Fraser Property Developments Pty Ltd v Sommerfeld & Ors [2004] QSC 363
PARTIES:
FRASER PROPERTY DEVLOPMENTS PTY LTD ACN 101 644 026
(plaintiff/first respondent)
and
ROBERT PETER SOMMERFELD
(first defendant/applicant)
and
SYDNEY BALE
(second defendant/second respondent)
and
BURNETT SHIRE COUNCIL
(third defendant/third respondent)FILE NO/S:
S290/2003
DIVISION:
Trial division
PROCEEDING:
Civil application
ORIGINATING COURT:
Supreme Court Rockhampton
DELIVERED ON:
22 October 2004
DELIVERED AT:
Rockhampton
HEARING DATE:
17 September 2004
JUDGE:
Dutney J
ORDER:
Plaintiff to discontinue the Claim and Statement of Claim filed on 28 June 2004 before the Supreme Court of Queensland and re-institute the Claim before the Commercial and Consumer Tribunal
CATCHWORDS:
INFERIOR TRIBUNALS – JURISDICTION – whether or not Commercial and Consumer Tribunal has jurisdiction to hear a claim against the Council for negligently approving building plans
STATUTES – STATUTORY CONSTRUCTION – whether or not s. 77(1) of the Queensland Building Services Authority Act 1991 (Qld) is a stand alone provision
Commercial and Consumer Tribunal Act 2003 (Qld) s. 8(1). s. 40(1), s. 113 and Schedule 2
Domestic Building Contracts Act 2000 (Qld) s. 8(3)(a)
Queensland Building Services Authority Act 1991 (Qld) s. 75(1), s. 75(2), s. 76(1), s. 77(1) and Schedule 2COUNSEL:
Mr CD Press for the applicant/first defendant
Ms KE Downes for the respondent/plaintiffMr GC O’Driscoll for the respondent/third defendant
SOLICITORS:
Payne Butler Lang for the applicant/first defendant
McCullough Robertson Hancock for the respondent/plaintiffBarry & Nilsson for the respondent/third defendant
The first defendant makes this application pursuant to s. 40(1) of the Commercial and Consumer Tribunal Act 2003 (Qld) (“CCTA”). In short, that sub-section provides that if a proceeding is started in a court and the proceeding could be heard by the Commercial and Consumer Tribunal (“the tribunal”), the court must order the proceeding to be started again before the tribunal.
By way of background, the applicant (“the builder”) entered into a contract with the first respondent (“the owner”) to construct a residential building on the owner’s land. The second respondent (“the engineer”) was retained by the owner to prepare foundation plans. The builder constructed the dwelling. The owner alleges against the builder and the engineer that the designs were not in accordance with Australian Standards. Furthermore, the owner alleges against the third respondent (“the council”) that it failed to take reasonable steps to ensure the designs were in accordance with Australian Standards, and that the engineer was registered. Proceedings were commenced in the Supreme Court, Rockhampton on 29 June 2004.
The builder now applies to this Court to have the proceedings transferred to the tribunal for hearing. The builder relies on s. 77(1) of the Queensland Building Services Authority Act 1991 (Qld) (“QBSAA”) for the tribunal’s jurisdiction. The owner submits that the tribunal has no jurisdiction to hear the claim against the council. The council supports the owner.
The issue, therefore, is whether or not the tribunal has jurisdiction to hear that part of the matter relating to the council.
Sub-section…
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- AGLC
- Fraser Property Developments Pty Ltd v Sommerfeld [2004] QSC 363
- Case
- [2004] QSC 363
- Decision Date
CaseChat Overview and Summary
The primary issue before the court was whether the Commercial and Consumer Tribunal had the jurisdiction to hear a claim against the Council for negligently approving building plans. The court had to consider the statutory framework and determine the appropriate forum for such a claim. The court was also required to interpret the relevant provisions of the Queensland Building Services Authority Act 1991 (Qld) to ascertain the scope of the Tribunal's jurisdiction.
The court found that the Commercial and Consumer Tribunal did have jurisdiction to hear the claim, as the relevant provisions of the Queensland Building Services Authority Act 1991 (Qld) were not stand-alone provisions but were part of a broader statutory scheme. The court held that s. 77(1) of the Act conferred jurisdiction on the Tribunal to hear claims against the Council for negligently approving building plans. The court also noted that the Tribunal was the appropriate forum for such a claim, as it was specifically established to deal with disputes arising from building and construction activities. The court ordered that the plaintiff discontinue the claim and re-institute it before the Commercial and Consumer Tribunal.
Orders
Orders of the court
Plaintiff to discontinue the Claim and Statement of Claim filed on 28 June 2004 before the Supreme Court of Queensland and re-institute the Claim before the Commercial and Consumer Tribunal
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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