PJS Development Pty Ltd v Tong - [2003] QSC 337

SUPREME COURT OF QUEENSLAND

CITATION:

PJS Development Pty Ltd v Tong [2003] QSC 337

PARTIES:

PJS DEVELOPMENT PTY LTD SCN 061 924 007
(plaintiff)
v
PAULINE MARJORIE TONG
(defendant)

FILE NO/S:

SC No 5933 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2003

JUDGE:

McMurdo J

ORDER:

1. Defendant’s application for summary judgment is dismissed

2. Defendant to pay the plaintiff’s costs of and incidental to that application to be assessed

CATCHWORDS:

PRACTICE – SUMMARY JUDGMENT - where application for summary judgment – where case concerns dispute over deposit paid under contract to purchase an apartment in a building to be constructed – where contract provided plaintiff would carry out building work - where plaintiff contends defendant repudiated contract entitling it to forfeit deposit - where defendant contends plaintiff disentitled to the deposit by s 42 Queensland Building Services Authority Act – whether s 42 extends to landowners causing building work to be performed – whether application for summary judgment should be dismissed

Queensland Building Services Authority Act 1991 (Qld), s 42, s 42(1), s 42(2)(a), s 42(3), s 44
Scaffolding and Lifts Act 1912 (NSW), r 73

Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422, considered

COUNSEL:

S J Lynch for the plaintiff
C M Hall (Solicitor) for the defendant

SOLICITORS:

Geoff Lyons Solicitors for the plaintiff
Winchester Young & Maddem Solicitors for the defendant

McMURDO J: This proceeding concerns the true entitlement to an amount of $13,750. It is the deposit paid by the defendant under her contract to purchase an apartment in a building to be constructed at Caloundra. The plaintiff says that she repudiated the contract entitling it to forfeit the deposit. On a number of grounds the defendant says that the deposit is hers. On one of those grounds the defendant applies for summary judgment.

The defendant argues that because the plaintiff was and is not a holder of a contractor’s licence under the Queensland Building Services Authority Act 1991 (Qld), the plaintiff is disentitled to the deposit by s 42 of that Act. Section 42 relevantly provides as follows:

“42 Unlawful carrying out of building work
(1)A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act.
(2)For the purposes of this section –
(a)a person carries out building work whether that person carries out it out personally, or directly or indirectly causes it to be carried out; and
(b)a person is taken to carry out building work if that person provides advisory services, administration services, management services or supervisory services in relation to the building work; and
(c)a person undertakes to carry out building work if that person enters into a contract to carry it out or submits a tender or makes an offer to carry it out.

(3)Subject to subsection (4), a person who carries out building work in contravention of…

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.

Keep reading for free

Create a free CaseChat account to read PJS Development Pty Ltd v Tong and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] QSC 337
Decision Date: 9 October 2003

CaseChat Overview and Summary

In the case of PJS Development Pty Ltd v Tong, the dispute arose from a contract for the sale of an apartment in a building yet to be constructed. The plaintiff, PJS Development, claimed that the defendant, Tong, had repudiated the contract, entitling them to forfeit the deposit paid. Conversely, Tong argued that the plaintiff was disentitled to the deposit under section 42 of the Queensland Building Services Authority Act, which prohibits unauthorised persons from performing building work. The matter was brought before the court to determine whether section 42 extended to landowners causing building work to be performed, and to decide on the application for summary judgment.

The court was required to address two primary legal issues. Firstly, it had to interpret the scope of section 42 of the Queensland Building Services Authority Act to determine if it applied to landowners who caused building work to be performed. Secondly, the court had to assess whether the defendant's arguments were sufficient to warrant the dismissal of the plaintiff's application for summary judgment. The court needed to consider the pleadings and any relevant evidence to determine if there was a triable issue, and if the defendant's application should be dismissed.

The court concluded that there was a genuine issue for trial regarding the interpretation of section 42 of the Queensland Building Services Authority Act and its applicability to the plaintiff. The court held that it was not appropriate to determine the matter on the basis of the pleadings alone, as there were factual matters that needed to be resolved. The court also found that the defendant's arguments were not sufficient to warrant the dismissal of the plaintiff's application for summary judgment, as there was a real prospect that the plaintiff would succeed at trial. Accordingly, the court dismissed the defendant's application for summary judgment.

In addition to dismissing the defendant's application, the court ordered that the defendant pay the plaintiff's costs of and incidental to that application to be assessed. This order reflected the court's view that the defendant's application was not well-founded and that the plaintiff was entitled to recover costs for the time and expense incurred in responding to it.

Orders

Orders of the court

1. Defendant’s application for summary judgment is dismissed

2. Defendant to pay the plaintiff’s costs of and incidental to that application to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	PJS Development Pty Ltd v Tong [2003] QSC 337
PARTIES:	PJS DEVELOPMENT PTY LTD SCN 061 924 007 (plaintiff) v PAULINE MARJORIE TONG (defendant)
FILE NO/S:	SC No 5933 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	9 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2003
JUDGE:	McMurdo J
ORDER:	1. Defendant’s application for summary judgment is dismissed 2. Defendant to pay the plaintiff’s costs of and incidental to that application to be assessed
CATCHWORDS:	PRACTICE – SUMMARY JUDGMENT - where application for summary judgment – where case concerns dispute over deposit paid under contract to purchase an apartment in a building to be constructed – where contract provided plaintiff would carry out building work - where plaintiff contends defendant repudiated contract entitling it to forfeit deposit - where defendant contends plaintiff disentitled to the deposit by s 42 Queensland Building Services Authority Act – whether s 42 extends to landowners causing building work to be performed – whether application for summary judgment should be dismissed Queensland Building Services Authority Act 1991 (Qld), s 42, s 42(1), s 42(2)(a), s 42(3), s 44 Scaffolding and Lifts Act 1912 (NSW), r 73 Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422, considered
COUNSEL:	S J Lynch for the plaintiff C M Hall (Solicitor) for the defendant
SOLICITORS:	Geoff Lyons Solicitors for the plaintiff Winchester Young & Maddem Solicitors for the defendant