Olindaridge Pty Ltd & Ors v Tracey

[2014] QCATA 40

CITATION: Olindaridge Pty Ltd & Ors v Tracey [2014] QCATA 40

PARTIES:	Olindaridge Pty Ltd Caral Wagner Rodney Wagner (Applicant/Appellant)
v
Martha-Lee Tracey (Respondent)

APPLICATION NUMBER: APL562-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane AM QC, Judicial Member

DELIVERED ON: 10 March 2014

DELIVERED AT: Brisbane

ORDER MADE: The application is refused.

CATCHWORDS:

APPEALS – APPLICATION FOR LEAVE TO APPEAL – where an application from the applicants to strike out a claim made by the respondent was refused – where matter involves complex issues of mixed law and fact – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(ii)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This is an application for leave to appeal against a determination of the Tribunal dismissing an application brought by the applicants, seeking the dismissal of a claim brought by the respondents, seeking relief arising out of a building contract between the parties.

1. Leave to appeal is required pursuant to section 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009.

1. The issues to be determined have to be distilled from the material filed by the parties.  In addition exchanges between the Tribunal and the parties at the hearing further elucidated the issues.

1. The appellant was legally represented but the respondent was not.  The matter has been further adjourned and will proceed to a hearing on these issues if the matter remains on foot after this appeal.  Both parties will be legally represented on such resumed hearing.

1. The rules and procedures of the Tribunal do not result in the precise identification and statement of the issues in the way court procedures do.

1. The Tribunal gave reasons for rejecting the strike out application at pages 34 to 36 of the record inclusive.  In these circumstances it is not possible to accept the claim of the applicant that there has been a denial of natural justice in relation to the issues raised and indeed a failure to deal with these issues.

1. In summary, the issues concern whether the appellant was obliged by the terms of the relevant town plan (or any law) to construct the relevant dwelling above a certain level.  The relevance of a resolution of the relevant local authority in 1992 dealing with the subject matter of the minimum levels for the construction of dwellings and indeed the question whether the resolution is of any legal effect also have to be considered.

1. The tribunal considered that there also fell for consideration the question whether even if no contractual or statutory obligation in relation to the relevant height arose, the appellant might have acted negligently having regard to the resolution and the circumstances generally.  The question of when any cause of action against the appellant arose and whether such cause of action might be statute barred also was thought to be raised.

1. The possibility of an action in negligence would involve a consideration of the factual background generally.  The existence of a duty of care must be considered against the background of the circumstances generally.

1. In addition, an issue is raised about an overflow relief gully.  On the face of it, this seems to have been constructed contrary to the building code.  However the limitation issue arises here also.

1. There is a general issue as to what if any damages have been suffered.

1. In my view the tribunal properly identified the issues.  These are of some complexity and, at least in respect of some of the issues, involve entwined issues of law and fact.

1. This is not a matter to be disposed of summarily on a strike out application.

1. In addition to the above matters it is necessary to keep in mind that this matter is to be further heard on 13 March 2014.  There are directions relating to the filing of further material. It is possible that further matters will be raised between the parties.

1. The fact that all issues may not have been identified is a product of the absence in the procedures of the Tribunal, of an obligation on the part of the parties to identify the issues legal and factual.

1. It will be of course open to the applicant to raise whatever matters it wishes to before the Tribunal on the resumed hearing.

1. The matter is plainly not one to be dealt with on an application to strike out for the above reasons.  No reason for the grant of leave to appeal is shown.

1. The application is refused.