Grant v Russell - [2022] QCAT 68

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Grant v Russell [2022] QCAT 68

PARTIES: JASON GRANT

(applicant)

v

JAMES TERENCE RUSSELL

(respondent)

APPLICATION NO/S:

BDL008-21

MATTER TYPE:

Building matters

DELIVERED ON:

3 March 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. The application for miscellaneous matters filed 27 July 2021 is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application to dismiss the proceeding is made, the power under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) should only be exercised if it is clear beyond doubt that the claim is lacking in substance and is not arguable – where the applicant has an arguable case in negligence, the power to dismiss the proceedings should not be exercised.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where an action for breach of contract was brought in 2021 – where the Tribunal finds that the breach occurred in 2010 and the cause of action accrued in 2010, the action is time barred – section 10(1)(a) of the Limitation of Actions Act 1974 (Qld) applies.

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – GENERALLY AT COMMON LAW – whether a concurrent duty of care in tort is owed by a building contractor to a building owner where the parties are in a contractual relationship relating to the performance of domestic building work.

Civil Liability Act 2003 (Qld) s 11(1)

Domestic Building Contracts Act 2000 (Qld)
Limitation of Actions Act 1974 (Qld) s 10(1)(a), s 38(1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, s 48
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75

Atkinson & Anor v Van Uden [2020] QCAT 259

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36
Brown v Havenfoot Pty Ltd t/as Ibis Pools and Anor [2019] QCAT 105
Bryan v Maloney (1995) 182 CLR 609
Canavan v Sutton [2020] QCAT 374
Howell v Young (1826) 5 B&C 259; 108 ER 97
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2014] QCA 233
Norman v Australian Red Cross Society (1998) 14 VAR 243
Voli v Inglewood Shire Council (1963) 110 CLR 74

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16

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

REASONS FOR DECISION

Mr Grant owns a house in Brisbane (‘the property’). In 2009/2010 Mr Grant undertook building renovation works at the property (‘the works’). Mr Russell was the building contractor engaged by Mr Grant to undertake the works. Mr Grant says that when Mr Russell performed the works he incorrectly connected the sewerage drain to the stormwater system which resulted in problems with the sewerage system. Mr Grant says that he was required to arrange for further building work to be undertaken to disconnect the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grant v Russell

Details

AGLC: Grant v Russell [2022] QCAT 68
Case: [2022] QCAT 68
Decision Date

CaseChat Overview and Summary

In the case of Grant v Russell, the dispute arose from allegations of defective building works carried out by Mr Russell, the builder, on a property owned by Mr Grant, the homeowner. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with resolving the dispute. Mr Russell applied for the dismissal of Mr Grant's proceeding, arguing that Mr Grant's claim was frivolous, vexatious, or misconceived under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Mr Grant countered that the defective works were fraudulently concealed by Mr Russell.

The central legal issues the tribunal had to address were whether Mr Grant's proceeding was frivolous, vexatious, or misconceived and whether there existed grounds for the summary dismissal of the proceeding. Section 47 of the QCAT Act allows the tribunal to dismiss a proceeding if it is frivolous, vexatious, or misconceived. To determine whether Mr Grant's proceeding should be dismissed, the tribunal considered whether it was obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief. This was examined against the principles of analogous powers under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which require caution before summarily terminating a proceeding.

The tribunal examined the evidence provided by both parties, including statements from Mr Grant and a plumbing contractor, Mr Sfettina. The tribunal concluded that Mr Grant's explanation for not being able to locate a copy of the building contract was reasonable, and thus, section 48 of the QCAT Act was not engaged. The tribunal also found that Mr Grant's claim that the defective works were fraudulently concealed was not obviously unsustainable in fact or in law. Consequently, the application for summary dismissal of the proceeding was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 9 March 2021 the tribunal directed Mr Grant to file and serve a copy of the building contract. Mr Russell says that Mr Grant is causing unnecessary disadvantage to him by failing to comply with the direction. By s 48 of the QCAT Act, the tribunal may dismiss a proceeding if an applicant, without reasonable excuse, fails to comply with tribunal directions and thereby unnecessarily disadvantages the respondent. Mr Grant says that he cannot locate a copy of the building contract and thus cannot comply with the direction of the tribunal to produce the document. As I have observed, Mr Russell cannot locate a copy of the contract. Mr Grant’s explanation that he cannot find a copy of the contract is a reasonable explanation for his failure to comply with the tribunal directions. Section 48 of the QCAT Act is not engaged.Conclusion The application for summary dismissal of the proceedings is refused.

Ratio Decidendi

Legal Principle Established

As to the assertion by Mr Grant that the defective works were fraudulently concealed, Mr Russell says that there is no evidence that he acted unconscionably or concealed the existence of allegedly defective works and that he was, in fact, unable to conceal something he was not aware of. Consideration By s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the tribunal may, in circumstances where the tribunal considers a proceeding or part of a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, order that the proceeding or part thereof be dismissed or struck out.[3] [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1), s 47(2). The power conferred by s 47 is in the nature of a summary judgment power. There is no temporal constraint on when such an application may be brought. An application to dismiss pursuant to s 47 may be brought at an interlocutory stage of a proceeding or conceivably after the evidence of the applicant has been heard, in other words, a ‘no case to answer’. The principles relevant to the exercise of the analogous power found in s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) have been expressed as follows:VCAT should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[4][4]Norman v Australian Red Cross Society (1998) 14 VAR 243. A proceeding brought in the tribunal should only be dismissed before a full hearing if it is clear beyond doubt that the applicant’s claim is lacking in substance and the applicant has no arguable case that should be resolved at a full hearing. The onus is upon the party bringing the application to establish that there exist grounds for the summary dismissal of a proceeding. A compulsory conference was conducted in August 2021. Prior to that, and in accordance with tribunal directions, the parties had filed their statements of evidence. It is appropriate to pause here to consider the evidence. Mr Grant relies upon two statements of evidence: a statement by himself and a statement by a plumbing contractor, Mr Sfettina. Mr Grant’s evidence, as it is relevant for present purposes, may be summarised as follows:(a)Mr Grant experienced sewerage problems at the property in or about September 2019;(b)Mr Grant was advised by a Brisbane City Council building inspector that the sewerage drain had been connected to the existing storm water system;(c)Mr Grant became aware that the combined sewerage drain had been connected incorrectly to the storm water drain on or about 8 January 2020;(d)Mr Russell undertook the defective plumbing works;(e)On or about 14 November 2019 Mr Grant became aware that Brisbane City Council had not certified or approved the plumbing works undertaken by Mr Russell;(f)The defective plumbing works have been rectified and a final certificate has been issued in respect of the works.

CITATION:	Grant v Russell [2022] QCAT 68
PARTIES:	JASON GRANT
(applicant)
v
JAMES TERENCE RUSSELL
(respondent)
APPLICATION NO/S:	BDL008-21
MATTER TYPE:	Building matters
DELIVERED ON:	3 March 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. The application for miscellaneous matters filed 27 July 2021 is refused.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application to dismiss the proceeding is made, the power under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) should only be exercised if it is clear beyond doubt that the claim is lacking in substance and is not arguable – where the applicant has an arguable case in negligence, the power to dismiss the proceedings should not be exercised. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where an action for breach of contract was brought in 2021 – where the Tribunal finds that the breach occurred in 2010 and the cause of action accrued in 2010, the action is time barred – section 10(1)(a) of the Limitation of Actions Act 1974 (Qld) applies. TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – GENERALLY AT COMMON LAW – whether a concurrent duty of care in tort is owed by a building contractor to a building owner where the parties are in a contractual relationship relating to the performance of domestic building work. Civil Liability Act 2003 (Qld) s 11(1) Domestic Building Contracts Act 2000 (Qld) Limitation of Actions Act 1974 (Qld) s 10(1)(a), s 38(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, s 48 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75 Atkinson & Anor v Van Uden [2020] QCAT 259 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 Brown v Havenfoot Pty Ltd t/as Ibis Pools and Anor [2019] QCAT 105 Bryan v Maloney (1995) 182 CLR 609 Canavan v Sutton [2020] QCAT 374 Howell v Young (1826) 5 B&C 259; 108 ER 97 Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2014] QCA 233 Norman v Australian Red Cross Society (1998) 14 VAR 243 Voli v Inglewood Shire Council (1963) 110 CLR 74 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)