Hunter Builders Pty Ltd v Kuhnemann

CITATION: Hunter Builders Pty Ltd v Kuhnemann
[2017] QCAT 175

PARTIES:	Hunter Builders Pty Ltd (Applicant)
v
Michael Kuhnemann (Respondent)

APPLICATION NUMBER: BDL310-16

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Brown

DELIVERED ON: 23 May 2017

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The parties are granted leave to be legally represented.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – Whether leave should be given for parties to have legal representation – Where both parties given leave for legal representation – Where dispute raises complex questions of fact and law

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(1), s 43(1)(b)

Lida Build Pty Ltd v Miller [2010] QCATA 17

Harrison & Anor v Meehan [2016] QCATA 197

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 18 April 2017 I ordered that the parties have leave to be legally represented in the proceeding. These are my reasons.

2. Hunter Builders constructed a home for Mr Kuhnemann. An Application for a domestic building dispute was filed in the Tribunal by Hunter Builders claiming from Mr Kuhnemann monies due and owing of $28,170.42, ‘an insurance policy QBCC’ of $2,927.85 and costs of $315.70.

3. In the Application, Hunter Builders says that the dispute arises out of a ‘continuing agreement’ between the parties for the past 9 years relating to Mr Kuhnemann’s commercial gyms. The application is lacking in particulars and, if one were to consider only the Application, it is difficult to apprehend precisely what the dispute is about. At first blush, it appears that this is a commercial building dispute. Matters are made clearer by Mr Kuhnemann’s response and counter application which I will address.   

4. Hunter Builders asserts that a ‘cost plus 10% verbal gentleman handshake’ agreement was entered into between the parties, ‘as had been our agreement for the past 9 years’.[1] What the application then sets out is a chronology of events which Hunter Builders relies upon as relevant to its claim. Attached to the application filed by Hunter Builders are a number of invoices and receipts from Hunter Builders and other third parties, none of which are explained or their relevance to the claim otherwise identified.

   [1]Application for domestic building dispute filed 01.12.16.

5. In his response and counter-application, Mr Kuhnemann denies any indebtedness to Hunter Builders. He says that the building works relate to a residential property. Mr Kuhnemann says, among other things, that no written contract was entered into between the parties as required by the Queensland Building and Construction Commission Act 1991 (Qld) and that Hunter Builders has no entitlement to claim payment from Mr Kuhnemann. Mr Kuhnemann seeks recovery of all monies paid to Hunter Builders on the basis that Hunter Builders had no entitlement to any payment for building works performed…