Muller v Jeffrey Hills & Associates Pty Ltd

[2010] QCAT 596

CITATION:		Muller v Jeffrey Hills & Associates Pty Ltd [2010] QCAT 596
PARTIES:	Mr Scott Muller & Mrs Kathryn Muller
v
Jeffrey Hills & Associates Pty Ltd

APPLICATION NUMBER:   BDL280-10  

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 23 November 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The proceeding is dismissed

CATCHWORDS : 

BUILDING – whether correct respondent – where pre-inspection report - where respondent says it had not been incorporated at the time of the report – where no ACN – where applicant has not demonstrated correct respondent

Queensland Civil and Administrative Tribunal Act 2009 ss4, 28(3)(c)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. Mr and Mrs Muller obtained a pre-inspection report from Jeffrey Hills & Associates Pty Ltd on 18 August 2009. A couple of months later, they noticed that the timber floor was buckling and lifting. On 6 April 2010, a representative from the Australian Timber Flooring Association inspected the home to assess the cause of the buckling. In the course of that report, the author recorded this comment:

   “The floor was not considered to be in a particularly sound state when the owners purchased the property and the filled holes consistent with injection of adhesive suggests that the floor had experienced delamination problems in the past.”

2. An inspector from the Queensland Building Services Authority inspected the floor on 29 July 2010. In the course of that report, the inspector noted:

   “My inspection was unable to determine the condition of the flooring at the time of the pre-purchase inspection. The owners did confirm that they were unaware of issues with the floor at the time of taking possession. They advised that a period of time elapsed before becoming aware of the floor problem.

   However, the report should have identified the existence of the filled penetrations on the floor surface indicating some form of repair had taken place. The report failed to make comment regarding the lack of expansion joints in a floor of this width.”

3. Mr and Mrs Muller have applied to the tribunal for an order that Jeffrey Hills & Associates Pty Ltd rectify the defective floor at its expense. In response, Jeffrey Hills & Associates Pty Ltd notes that it was not registered until 12 October 2009. Therefore, it says, it cannot be responsible for the pre-inspection report. Mr and Mrs Muller now want to join JHA No7 Pty Ltd , formerly known as Jeffrey Hills & Associates Pty Ltd as a party to the proceeding.

4. In breach of s153 of the Corporations Act 2001 (Cth) the pre-inspection report does not show an ACN for Jeffrey Hills & Associates Pty Ltd. This makes it very difficult for Mr and Mrs Muller, or indeed any party contracting with Jeffrey Hills & Associates Pty Ltd, to identify the entity with whom they are contracting.

5. A search of the ASIC website is attached to these reasons. There are three possibilities as to the correct respondent. Unfortunately, although Mr and Mrs Muller have given the tribunal some information about which company they consider to be the correct entity, and who is the appropriate director, the tribunal has not been favoured with copies of historical ASIC searches that demonstrate they have identified the entity correctly. Although the tribunal may inform itself in any way it considers appropriate: s28(3)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), this does not mean that the tribunal will prove a party’s case for it. I am not satisfied, even now, that Mr and Mrs Muller have identified the correct respondent.

6. Even if Mr and Mrs Muller overcome this hurdle, there are more difficulties before them. They have asked the tribunal to direct Jeffrey Hills & Associates Pty Ltd to rectify the defective floor. Given that the company performed the pre-inspection report, and did not actually install the flooring, this is not an appropriate remedy. Their remedy is claim for damages for negligence but they have not submitted any material to support such a claim.

7. There is also some doubt about the quantum of any claim for damages. The reports from Australian Timber Flooring Association and the Queensland Building Services Authority suggest that the fault was simply the failure to notify Mr and Mrs Muller that there had been some work on the floor since its installation and that an expansion joint should have been installed. It is difficult to say whether this omission caused all of Mr and Mrs Muller’s loss in the cost of replacing the flooring. It is possible that, had they known of these two factors, Mr and Mrs Muller would have re-negotiated the purchase price, or not bought at all, or taken steps to investigate the flooring. Alternatively, they may have done nothing at all. As hindsight often has 20/20 vision, the proof of what Mr and Mrs Muller would, or would not, have done, is problematic.

8. Although the tribunal is required to conduct proceedings in an informal way that minimises costs to parties: s4 QCAT Act, the application as it is presently framed has almost insuperable difficulties. The appropriate course is to dismiss the proceedings.

9. I am left with a feeling of unease concerning the behaviour of Jeffrey Hills & Associates Pty Ltd. Mr and Mrs Muller indicate that the current entity trades in much the same way as the former entity, at the same address and with similar personnel. Entities are entitled to adopt whatever legal structure suits their needs but they should be transparent about that. The lack of an ACN on the pre-inspection report, in addition to being a breach of the Corporations Act invites suspicion. Jeffrey Hills & Associates Pty Ltd works, or worked, with the Queensland building industry. It’s behaviour does not meet the objectives of s3(a)(i) of the Queensland Building Services Authority Act 1991: to ensure the maintenance of proper standards within the industry .