Fraser Property Developments Pty Ltd v Sommerfeld

[2004] QSC 363

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 2

COUNSEL:

Mr CD Press for the applicant/first defendant
Ms KE Downes for the respondent/plaintiff

Mr GC O’Driscoll for the respondent/third defendant

SOLICITORS:

Payne Butler Lang for the applicant/first defendant
McCullough Robertson Hancock for the respondent/plaintiff

Barry & Nilsson for the respondent/third defendant

1. 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.

1. 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. 

1. 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.

1. The issue, therefore, is whether or not the tribunal has jurisdiction to hear that part of the matter relating to the council.

1. Sub-section…