Provis v Universal Construction Group Pty Ltd

[2015] QCAT 346

CITATION: Provis v Universal Construction Group Pty Ltd [2015] QCAT 346

PARTIES:	Brett Edward Provis (Applicant)
v
Universal Construction Group Pty Ltd (Respondent)

APPLICATION NUMBER: BDL254-14

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Brown

DELIVERED ON: 7 September 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application for costs is dismissed.

CATCHWORDS:

Costs - where application withdrawn and respondent seeks costs - whether application misconceived or without foundation - basis for award of costs.

Limitation of Actions Act 1974 (Qld)
Domestic Building Contracts Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Bryan v Maloney (1995) 182 CLR 609
Tyrell & Anor v McNab Constructions Pty Ltd & Ors [2014] QCA 52

APPEARANCES:

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

REASONS FOR DECISION

What is this application about?

1. Brett Provis filed an application in the Tribunal against Universal Construction Group Pty Ltd (‘Universal’) in which he claimed that Universal had carried out defective building works at his home (‘the property’). Mr Provis subsequently withdrew his application. Universal now seeks its costs of the proceedings.

The application for a domestic building dispute - background

1. Mr Provis purchased the property in 2007. It had been built by Universal in 2005. Before he purchased the property, Mr Provis arranged for a building inspection to be undertaken. That inspection revealed an issue with water lipping around the waste and pooling on the shower floor due to an inadequate fall in the floor to waste. Having received the results of the inspection, Mr Provis proceeded to complete the purchase of the property.

2. In 2010 Mr Provis complained to the now Queensland Building and Construction Commission (‘the QBCC’) about the issues relating to the ensuite. Following an inspection by the QBCC, a notice to rectify was issued to Universal and rectification work was subsequently undertaken.

3. In 2014 Mr Provis made a further complaint to the QBCC about the water problems in the ensuite. The QBCC undertook a further inspection. Prior to the inspection, Mr Provis had arranged for the shower screen door to be removed. The subsequent QBCC report stated that:

   The removal of the screen by the owner has now supplied evidence of what the defective building work is… This evidence was not available at the previous inspection.

4. The QBCC inspection identified that the water stop had not been correctly installed. The QBCC identified that this issue was related to, but not identical, to the issue identified following the 2010 inspection. The QBCC advised Mr Provis that the work had been completed more than six years and three months prior and therefore no direction to rectify could be issued.

5. Mr Provis subsequently filed his application for a domestic building dispute in the Tribunal in October 2014 in which he sought rectification of the defective works and monetary compensation for being unable to rent the property.

6. In November 2014, Universal filed a response and counter-application. Universal claimed that Mr Provis’s claim was statute barred, not having been commenced within the time limits prescribed by the Limitation of Actions Act 1974 (Qld) (‘the LA Act’) and/or the Domestic Building Contracts Act 2000 (Qld) (‘DBCC Act’).

7. In February 2015 Mr Provis withdrew his application.

8. Universal seeks to recover from Mr Provis the legal costs it has incurred in responding to the application.

What do the parties say?

1. Universal says that:

   a)    There was no contract between it and Mr Provis;

   b)    Mr Provis had, before purchasing the home, arranged a pre-purchase inspection to be carried out and had elected to proceed with the purchase and therefore Universal did not owe to Mr Provis a duty of care;

   c)    If a duty was owed, the application was filed by Mr Provis outside the statutory limitation period of six years from the date the cause of action accrued;

   d) Mr Provis had no cause of action in respect of the warranties contained in Part 4 of the DBCC Act as the proceeding had not been commenced within six years and six months from the date of practical completion.

2. Universal submits that the application by Mr Provis was misconceived and that it is just and reasonable that Mr Provis pay Universal’s costs.

3. Mr Provis in his submissions does not address the substantive issues in relation to the limitation periods raised by Universal. Mr Provis says that the fact that he had a pre-purchase inspection and report undertaken did not preclude him from pursuing a claim in negligence against Universal. He says that he withdrew his application for financial reasons and could no longer afford what he says was the “financial drain”.

The Tribunal’s jurisdiction to award costs

1. In proceedings before this Tribunal each party usually bears their own costs.[1] Costs may be awarded against a party if the Tribunal considers the interests of justice require such an order to be made.[2]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 100.

   [2]Ibid s 102(1).

2. The Tribunal may consider a number of matters in deciding whether to award costs including whether a party to a proceeding has acted in a way that unnecessarily disadvantages the other party; the nature and complexity of the dispute; the relative strengths of the claims made by the parties; the financial circumstances of the parties; anything else the Tribunal considers relevant.[3]

   [3]Ibid s 102(3).

3. The Tribunal must consider whether:

   … the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.[4]

   [4]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29].

4. Any claim in negligence by Mr Provis against Universal arose when the latent defect was discovered by reasonable diligence or became manifest.[5]

   [5]Bryan v Maloney (1995) 182 CLR 609; Tyrrell & Anor v McNab Constructions Pty Ltd & Ors [2014] QCA 52.

5. It was at least arguable by Mr Provis that the defect in respect of the water stop was not discovered until the QBCC inspection in 2014. As the subsequent QBCC report noted, the evidence in relation to the water stop being the cause of the water problems in the ensuite ‘was not available at the previous inspection’.[6]

   [6]QBCC report dated 2 September 2014.

6. Mr Provis’s claim was therefore at least arguable.

7. Universal has not established that the interests of justice point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100 of the QCAT Act.

8. The application for costs by Universal is dismissed.

Orders

1. The application for costs is dismissed.