Presser v Inside Out Timber Floors & Decks
[2010] QCAT 417
•27 August 2010
| CITATION: | Presser v Inside Out Timber Floors & Decks [2010] QCAT 417 |
| PARTIES: | Mr Tim Presser Mrs Leanne Presser |
| v | |
| Inside Out Timber Floors & Decks |
| APPLICATION NUMBER: | BDL148-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 13 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Anne Forbes – Member |
| DELIVERED ON: | 27 August 2010 |
| DELIVERED AT: | Brisbane |
CATCH WORDS: Domestic building dispute; breach of contract; party joined to proceeding; directions in a proceeding
ORDERS MADE: |
|
REASONS FOR DECISION
The Applicants seek relief from the Respondent, named in their application as “Chris Lowry”, in a domestic building dispute. They seek $80,000 and costs upon an alleged breach of contract. The Respondent has brought a cross application for the proceedings to be dismissed or struck out and for costs on the basis that Mr Lowry is not personally liable to the Applicants.
In compliance with orders of a Senior Member of 28 July 2010 each party has filed written submissions and the Respondent’s application is to be determined on the papers.
Background
In December 2007 the Pressers accepted a written quotation from an entity trading under the business name Inside Out Timber Floors and Decks (called for convenience herein as “IOTFD”) for flooring to be supplied and installed at their residence. The floor was installed but was found to have certain defects and the Pressers complained to the Queensland Building Services Authority (“the QBSA”) naming IOTFD as the Building contractor holding the relevant BSA licence 1051258. On 17 December 2008 the QBSA issued a Direction to Rectify and Complete to Mr Lowry personally as the holder of the licence.
On 15 January 2009 Lowry filed an Application to Review the QBSA’s decision on the ground that he was not responsible for any defect or incomplete building work. Eventually that application was dealt with as a transitional matter in this tribunal under the Queensland Civil and Administrative Tribunal Act 2009 [the “Act”] on 27 May 2010 when Member Barlow ordered that the QBSA direction be set aside.
The current claim by the Pressers was filed on 18 May 2010.
The Builder Respondent’s Case
Mr Lowry contends that he had no contract with the Pressers and the application lacks substance in that it has been commenced against him in his personal capacity, and therefore should be dismissed under section 47(2) of the Act.
Lowry is the sole director and secretary of Lowry Projects Pty Ltd (“the company”) which is the trustee of the Lowry Family Trust. The company (as trustee) owns the business name IOTFD, and was the entity which provided the quotation to the Pressers which they accepted and, so says Mr Lowry, is the proper Respondent to any action against IOTFD.
Mr Lowry seeks his costs against the Pressers because they could have, in his submission, conducted the basic searches to identify the correct Respondent.
The Homeowner Applicants’ case
The Pressers say that all their dealings on the matter of the floor were conducted personally with Mr Lowry and that he presented as the only person running the business of IOTFD and appeared to be the trustee of the Lowry Family Trust or, at lease, the agent of the Trust. They claim that they were not aware of the name of the company as trustee, nor was there any sign alerting them to the presence or identity of the company until Lowry referred to it in a directions hearing. They contend that the failure of Lowry or IOTFD to identify the company as principal leaves Lowry exposed to liability personally as agent of an undisclosed principal.
Consideration
10. I was concerned to establish whether Member Barlow’s decision to set aside the QBSA direction was based on the apparent error of the QBSA to identify the correct holder of the building licence or whether it disposed of the issue of the defects in the building work now claimed by the Pressers.
11. Mr Lowry claims in his affidavit that in the application before Member Barlow independent experts’ reports determined that damage to the floors were a consequence of action by other parties or tradespeople retained by the Pressers. However, no reports are attached to his affidavit.
12. It appears that no reasons for Mr Barlow’s decision were published.
13. The Respondent has not raised an issue estoppel in his submissions and his application is based squarely on the ground that the Applicants have failed to identify the proper Respondent.
14. Therefore that error is easily corrected by directions given under section 42 of the Act. I consider that the company should be bound by, and/or its interests may be affected, by this proceeding. The issue of costs may be dealt with on the hearing of the substantive application.
DIRECTIONS
- Lowry Projects Pty Ltd formerly trading as Inside Out Timber Floors and Decks as trustee for the Lowry Family Trust shall be joined as a party to this proceeding.
- Lowry Projects Pty Ltd shall within 14 days of the receipt of this order file a notice of address for service and serve a copy upon the Applicants.
- The Applicants shall serve a copy of the Application on Lowry Projects Pty Ltd within 14 days of the receipt of this order.
- Lowry Projects Pty Ltd shall file a response within 28 days of the receipt of this order.
- The matter is adjourned for directions on a date to be fixed.
0
0
0