March v Metrotek Constructions Pty Ltd

[2011] QDC 376

DISTRICT COURT OF QUEENSLAND

CITATION:

March v Metrotek Constructions Pty Ltd [2011] QDC 376

PARTIES:

RANDALL WAYNE MARCH & KATRINA CLAIRE SPENCER
(plaintiffs)

V

METROTEK CONSTRUCTIONS PTY LTD
(defendant)

FILE NO/S:

BD 3832/10

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2011

JUDGE:

McGill DCJ

ORDER:

Application dismissed.

CATCHWORDS:

INFERIOR TRIBUNALS – Queensland Civil and Administrative Tribunal – whether proceeding in District Court to be transferred to Tribunal – consideration.

Queensland Civil and Administrative Tribunal Act 2009 s 53.

COUNSEL:

N M Cook for the plaintiffs

D C Kissane for the defendant

SOLICITORS:

1. This is an application for an order under section 53 of the Queensland Civil and Administrative Tribunal Act 2009 to transfer a proceeding which has been commenced in this Court to that Tribunal. 

1. The respondent/plaintiffs do not dispute that the Tribunal has jurisdiction to hear and determine the matter, and the issue is simply whether the Court should exercise its discretion to make an order for transfer. 

1. I should say that the claim is one for liquidated damages and other damages payable under a building contract between the plaintiffs and the defendant.  The total amount claimed is an amount of over $400,000.  The claim was filed after the increase in the jurisdiction of the District Court.  It is not disputed that it was a domestic building contract, and that the Tribunal has jurisdiction notwithstanding the amount of the claim. 

1. At the present time there is no defence on the file, although it is, I suppose, understandable that the defendant would want to apply promptly for an order transferring the matter to the Tribunal because one could understand that otherwise it would be met with an argument that the matter had made some progress in this Court, and that was the reason why it should not be transferred. 

1. It does seem to me that in principle there should be either a defence filed, or at least a draft defence put in evidence before the Court, so that the Court can properly identify the nature of the dispute between the parties.  It may be of some relevance to determine what the nature of the dispute is in deciding whether or not the matter should be transferred to the Tribunal.  As it happens, this seems to be an entirely conventional building dispute. 

1. There is an argument about variations, there is an argument about whether something which was required under the contract had been provided, and there are allegations that there has been certain defective workmanship.  There is also an allegation that the plaintiffs are entitled to liquidated damages because of delay in completion.  There will be, no doubt, the usual disputes about those matters. 

1. The defendant prefers the matter to proceed in the Tribunal, and a number of factors were put forward in favour of that course.  It was submitted that the Tribunal is a specialised tribunal created for the determination of building disputes.  I think in…