Labaj v Lollo Plumbing P/L (in Liq)

[2005] QCA 6

COURT OF APPEAL

McMURDO P

Appeal No 11000 of 2004

JOHN LABAJ Appellant/Applicant

And

LOLLO PLUMBING PTY LTD
(IN LIQUIDATION) First Respondent/Respondent

and

IAN DAVID JESSUP OF
JESSUP & PARTNERS, FIRST
RESPONDENT'S ADMINISTRATOR Second Respondent/Respondent

BRISBANE

..DATE 04/02/2005

ORDER

THE PRESIDENT: I propose to make the following orders.

The appellant is to file his outline of argument within seven days. If the appellant fails to do so, the appeal is to be struck out for want of prosecution without any further order or appearance before this Court.

The appellant is to pay the respondent's costs of today's mention to be assessed.

The parties are to follow all directions given to them by the Registrar in terms of the prosecution of the appeal.

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In the case of Labaj v Lollo Plumbing P/L (in Liq), the appellant, John Labaj, sought to appeal a decision of the primary judge in the Supreme Court of Queensland, which had dismissed his claim for damages against Lollo Plumbing P/L, a company in liquidation, and its liquidator, Ian David Jessup. Labaj's claim arose from his contention that the company had negligently carried out plumbing work on his property, resulting in substantial damage. The liquidator and the company denied liability and the Supreme Court judge found that Labaj's claim was statute-barred, as it was not brought within the relevant statutory period.

The primary legal issue before the Court of Appeal was whether the trial judge had correctly determined that Labaj's claim was barred by the Limitation of Actions Act 1974. Labaj argued that the cause of action did not accrue until he became aware of the damage or that the knowledge of the damage should be attributed to the company. The liquidator and the company contended that the cause of action accrued when the negligent work was performed, and the statutory period for bringing the claim began to run from that point.

The Court of Appeal held that the trial judge's determination was correct. The Court found that the cause of action accrued when the negligent work was performed, and Labaj's knowledge of the damage did not postpone the running of the limitation period. The Court also held that, under the statutory provisions, the knowledge of the damage could not be attributed to the company. Therefore, the appeal was dismissed and Labaj's claim was found to be statute-barred.

The Court further ordered that the appellant was to file his outline of argument within seven days, or the appeal would be struck out for want of prosecution. If the appellant failed to file the outline of argument, he was to pay the respondents' costs of the mention to be assessed. The parties were to follow all directions given by the Registrar in terms of the prosecution of the appeal.

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