Number One Quality Homes Pty Ltd v Murphy & Anor - [2020] QCAT 339

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Number One Quality Homes Pty Ltd v Murphy & Anor [2020] QCAT 339

PARTIES:

Number one quality homes pty ltd

(applicant)

daniel murphy

(first respondent)

judith murphy

(second respondent)

APPLICATION NO/S:

BDL364-18

MATTER TYPE:

Building matters

DELIVERED ON:

7 September 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The Tribunal declines to determine the preliminary issue as framed by Daniel Murphy and Judith Murphy.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – GENERALLY – where respondents seek determination of a preliminary issue – whether utility, economy and fairness to the parties of a separate question is beyond issue – where factors tell against the making of an order for the determination of a preliminary issue – where it is not just and convenient to determine the preliminary issue

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the parties entered into a contract for the construction of a dwelling - where applicant seeks payment of an amount owing under the contract- where the respondents counterclaim damages for defective work and misleading and deceptive conduct

Queensland Building and Construction Commission Act 1991 (Qld), s 3(a)(ii), s 3(d), s 67AZN, sch 1B, s 7(1)(b), s 15, s 18, s 35, s 37, s 38, s 44, s 46(1)

Uniform Civil Procedure Rules 1999 (Qld), r 483

Arnold v Attorney-General (Vic) (Unreported, Federal Court of Australia, Sundberg J, 8 September 1995)

Blackman v Milne [2007] 1 Qd R 198

Collis v Currumbin Investments Pty Ltd [2009] QSC 297

Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75

Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209

GMB Research & Development Pty Ltd v Commonwealth [1997] FCA 934

Marchesi v Viridian Noosa Pty Ltd [2010] QSC 324

MJ Arthurs Pty Ltd v Isenbert [2017] QDC 85

Orknie Pty Ltd v Body Corporate for Paloma CTS 9524 [2010] QCATA 52

Prider v Bond University Ltd [2019] QSC 197

Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495

Roberts v Australia and New Zealand Banking Group Ltd [2006] 1 Qd R 482

Sultana Investments P/L v Cellcom P/L [2008] QCA 357

Tepko Pty Ltd v Water Board (2001) 206 CLR 1

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 14 July 2020 I declined to determine a preliminary issue as framed by the Murphys, Mr and Mrs Murphy. These are the reasons for my decision.
The determination of preliminary issues in proceedings
[2] Preliminary issues may involve questions of law, questions of fact or questions of mixed law and fact. While the determination of a preliminary issue may result in savings in costs and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCAT 339
Decision Date: 7 September 2020

CaseChat Overview and Summary

In the case of Number One Quality Homes Pty Ltd v Murphy & Anor, the primary dispute involved a contractual obligation for the construction of a dwelling. The matter was before the Tribunal, which was tasked with addressing the preliminary issue of whether it was just and convenient to determine the respondents' request for a determination of a preliminary issue. The respondents, Daniel Murphy and Judith Murphy, sought to frame a specific issue for resolution prior to proceeding with the main action, which involved the applicant's claim for payment of an outstanding amount under the construction contract and the respondents' counterclaim for damages related to defective work and misleading and deceptive conduct.

The central legal issue before the Tribunal was whether the utility, economy, and fairness to the parties warranted a determination of the preliminary issue as proposed by the respondents. The Tribunal had to assess whether it was appropriate to resolve this preliminary matter before addressing the substantive claims and counterclaims. Factors considered included the complexity of the issues, the potential for unnecessary delay, and the overall fairness to both parties.

The Tribunal concluded that determining the preliminary issue as framed by the respondents was not just and convenient. The decision highlighted that resolving the preliminary issue separately could lead to inefficiencies and additional costs without clear benefits to the resolution of the main dispute. Consequently, the Tribunal declined to determine the preliminary issue as requested by Daniel Murphy and Judith Murphy, thereby allowing the main proceedings to proceed without a preliminary determination.

The Tribunal's final order was to decline the respondents' request to determine the preliminary issue. This decision ensured that the main proceedings could progress without undue delay, maintaining the efficiency and fairness of the judicial process.

Orders

Orders of the court

The Tribunal declines to determine the preliminary issue as framed by Daniel Murphy and Judith Murphy.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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