Nicol v Emerson

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nicol & Anor v Emerson & Ors [2019] QCAT 262

PARTIES:

JOHN NICOL
KEITH STEWART

(applicants)

v

GEORGE EMERSON
MARGARET EMERSON

(first respondents)

MOBILE PROJECT BUILDING PTY LTD

(second respondent)

APPLICATION NO/S:

BDL317-18

MATTER TYPE:

Building matters

DELIVERED ON:

15 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The Application for miscellaneous matters filed 14 December 2018 by George Emerson and Margaret Emerson is refused.

CATCHWORDS:

COURT PRACTICE & PROCEDURES – AUSTRALIA – QUEENSLAND CIVIL PRACTICE – QCAT LEGISLATION – where applicant is a subcontractor and makes application against homeowner and head contractor – where applicant claims homeowner varied the scope of works directly with him – where homeowners seek to dismiss that part of the proceedings against them – whether power under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 should be exercised

Queensland Civil and Administrative Tribunal Act 1991 (Qld), s 47

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Kyriackou v Ace Insurance Ltd [2009] VSC 647
Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635

Reardon v Deputy Commissioner for Taxation (2013) 275 FLR 9

REPRESENTATION:
Applicants:	Cornwalls
First respondents:	McKays, Solicitors
Second respondent	Carroll Legal & Compliance
APPEARANCES:	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

1. On 19 June 2019 I refused an application by Mr and Mrs Emerson to dismiss that part of the proceedings brought by the applicants against them.

2. Mr and Mrs Emerson entered into a contract with Mobile Project Building Pty Ltd (MPB) to undertake the construction of two garages.[1]  The contract price was $82,000. The contract provided that the building works were to commence on 27 November 2017 and the date of practical completion was 15 January 2018.

   [1]Affidavit of Margret Emerson, sworn 20 December 2018.

3. MPB entered into a sub-contract with Mr Nicol.[2] Mr Nicol contracted to ‘build two garage as plane (sic) number 04589-05 supply all material concrete wall roof garage door.’ The sub-contract price was $50,000. The date for substantial completion of the works was 10 January 2018.

   [2]Subcontract undated.

4. The applicants commenced these proceedings by application filed 15 November 2018. In the application Mr Nicol is identified as the first applicant and Mr Stewart as the second applicant. Where required to set out the reasons orders should be made, the applicants say:

   We were asked to do the work by the builder and owners.

   The owners and builder dispute that they asked for the work to be done.

   The owners blame the builder and the builder blames the owners.

   We are subcontractors to the builder.

5. The application is expressed somewhat unclearly. The applicants are not legally represented. Upon a reading of the application and the accompanying documents the applicants’ appear to be saying:

   (a)The first applicant says he entered into a sub-contract with MPB to…