Ramm v Ramm

Case [2020] QCAT 102

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Ramm v Ramm [2020] QCAT 102
PARTIES: COLIN LESLIE RAMM

(applicant)

v
ASHLEY DAVID RAMM

(respondent)

APPLICATION NO/S:

BDL058-19

MATTER TYPE:

Building matters

DELIVERED ON:

8 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
ORDERS:

1. Colin Leslie Ramm must file in the Tribunal two (2) copies and give to Ashley David Ramm one (1) copy of submissions addressing whether the Tribunal should extend time under s 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to enable Colin Leslie Ramm to proceed with a claim for breach of statutory duty pursuant to s 51(1)(a) of the Domestic Building Contracts Act 1991 (Qld) (the extension of time), by 4:00pm on 23 April 2020.

2.   Ashley David Ramm must file in the Tribunal two (2) copies and give to Colin Leslie Ramm one (1) copy of submissions addressing the extension of time, by 4:00pm on 7 May 2020.

3.   Colin Leslie Ramm must file in the Tribunal two (2) copies and give to Ashley David Ramm one (1) copy of submissions in reply, by 4:00pm on 14 May 2020.

4.   The application for an extension of time will be determined by a member of the Tribunal on the papers and without an oral hearing, not before 14 May 2020.

CATCHWORDS:

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT – DAMAGES - where applicant alleges defective building work – where respondent has filed an application to dismiss proceedings on the basis that the claim is time-barred under s 10 of the Limitation of Actions Act 1974 (Qld) – where 6 years is the period of limitation prescribed - where applicant does not articulate a claim by reference to any identified cause of action – where cause of action for a claim in a breach of contract or a claim in tort arose in 2010 – where the claim should have been commenced by 2016 - where claim brought in 2019 - where the claim for damages was not commenced within the period of limitation prescribed

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT– STATUTORY WARRANTIES FOR RESIDENTIAL BUILDING WORK - where a claim for a breach of warranty must be commenced within 6 years and 6 months after work is finished under s 51(a) of the Domestic Building Contracts Act 1991 (Qld) – where relevant work finished in 2008 – where time limit has passed - where the tribunal may extend time to commence proceedings even if the relevant time has passed under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where no application by applicant to extend the time limit – where applicant should be permitted to make submissions addressing the issue

Domestic Building Contracts Act 1991 (Qld), s 32(1)(a), s 44, s 51, s 51(1), s 51(1)(a)
Limitation of Actions Act 1974 (Qld), s 7, s 10, s 10(1)(a),…

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Details
AGLC
Ramm v Ramm [2020] QCAT 102
Case
[2020] QCAT 102
Decision Date

CaseChat Overview and Summary

The case of Ramm v Ramm involved a dispute between Colin and Ashley, who had a contractual agreement for building work at Colin's residence. The work, which was completed in December 2008, involved the rendering and painting of the exterior walls of Colin's residence. Colin alleged that there were defects in the work, which he first became aware of in or around 2010. He filed a claim for damages in 2019. The primary legal issues in this case were whether the claim was time-barred under s 10 of the Limitation of Actions Act 1974 (Qld) and whether the claim for a breach of statutory warranty was statute-barred under s 51(a) of the Domestic Building Contracts Act 1991 (Qld). The court held that the claim was time-barred under s 10 of the Limitation of Actions Act 1974 (Qld), as the claim should have been commenced by 2016, but was brought in 2019. Additionally, the claim for a breach of statutory warranty was statute-barred under s 51(a) of the Domestic Building Contracts Act 1991 (Qld), as the relevant work finished in 2008, and the time limit had passed. However, the tribunal may extend the time to commence proceedings even if the relevant time had passed under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The court ordered Colin to make submissions addressing the issue of extending the time limit for his claim for breach of statutory warranty. The court's decision was based on the fact that the Limitation of Actions Act 1974 (Qld) makes the provision a substantive provision, and the underlying right is extinguished on the expiry of the period of limitation. Express statutory authority is required to revive that right. The court found that s 61 of the QCAT Act is not expressed in sufficiently clear terms to override s 43A of the LA Act.

Orders

Orders of the court

1. Colin Leslie Ramm must file in the Tribunal two (2) copies and give to Ashley David Ramm one (1) copy of submissions addressing whether the Tribunal should extend time under s 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to enable Colin Leslie Ramm to proceed with a claim for breach of statutory duty pursuant to s 51(1)(a) of the Domestic Building Contracts Act 1991 (Qld) (the extension of time), by 4:00pm on 23 April 2020.

2. Ashley David Ramm must file in the Tribunal two (2) copies and give to Colin Leslie Ramm one (1) copy of submissions addressing the extension of time, by 4:00pm on 7 May 2020.

3. Colin Leslie Ramm must file in the Tribunal two (2) copies and give to Ashley David Ramm one (1) copy of submissions in reply, by 4:00pm on 14 May 2020.

4. The application for an extension of time will be determined by a member of the Tribunal on the papers and without an oral hearing, not before 14 May 2020.

Background

Background to the litigation

Colin has filed a response to Ashley’s affidavit and submissions.[4] The submissions are handwritten and reply in detail to each paragraph of Ashley’s affidavit. Colin’s response is, in effect, his evidence and I have proceeded on this basis. [4]Applicant’s submissions filed 7 January 2020.The background to the dispute Colin says that in 2008 he contracted with Ashley to undertake building work at his home. The work involved the rendering and painting of the exterior walls of Colin’s residence. The exterior of the upper level of Colin’s residence was cement sheeting and the lower level was brick. The render was applied to the exterior walls of both the upper and lower levels. There is a dispute about whether there was an agreement between Colin and Ashley for Ashley to undertake the work. Ashley says that the contractor undertaking the work was Mr Black. Ashley says that he did not enter into an agreement with Colin. As these reasons explain, whether there was an agreement between Colin and Ashley is not ultimately determinative of the application to dismiss the proceedings. Colin says that the works were completed in December 2008. He says that he first became aware of problems with the works in or around 2010.[5] Colin says that the render started to delaminate from the lower level brickwork at various points. [5]Application for domestic building disputes filed 21 February 2019. Colin says he contacted Ashley and told him about the problem with the rendering, that Ashley subsequently inspected the works and told Colin that he would rectify the problem. Colin says Ashley told him that he (Ashley) would first have to ascertain why the render had failed to adhere to the walls. Ashley says that after being contacted by Colin, he arranged to meet at Colin’s residence together with Mr Black and representatives of the supplier and the manufacturer of the render. Ashley’s evidence is not entirely clear as to when the meeting took place. Colin says that the meeting occurred on 1 July 2016. It is common ground between the parties that following the meeting and inspection of the work, samples of the render were taken for analysis. A subsequent report identified the cause of the problem as inadequate surface preparation prior to the application of the render.[6][6]Technical Complaint Report by Bipin Chavda dated 26 July 2016. In November 2018 Colin obtained a building inspection report in relation to the rendering.[7] The report identifies the presence of delaminated render. The possible causes of the delamination are identified as poor surface preparation, product failure in manufacturing and product failure as a result of moisture exposure during transport or storage.[8][7]Building Report by Karen Logan dated 15 November 2018.[8]Ibid 3. In December 2018 Colin complained to the Queensland Building and Construction Commission (‘QBCC’). On 5 December 2018 the QBCC wrote to Colin advising him that it could not assist with the complaint about defective building work. Of particular relevance to the present application is the statement, ‘In reviewing your complaint, I have noted that you noticed the complaint item/s between 2011 and 2012 and lodged a complaint with QBCC on 4 December 2018’.[9][9]Letter from QBCC dated 5 December 2018. The claim by the applicant

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These are not matters that can be, or should be, determined in an application for summary dismissal. The parties should have the opportunity to file their statements of evidence and for that evidence to be tested at a hearing. Conclusion I have concluded that the claims by Colin for breach of contract and breach of duty are statute barred and cannot be maintained. Colin should be given the opportunity to seek an extension of time to bring a claim for breach of statutory warranty. I order accordingly.

Ratio Decidendi

Legal Principle Established

The operation of s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) Section 61 of the QCAT Act provides as follows:61 Relief from procedural requirements(1) The tribunal may, by order—(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or(b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules or(c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules.(2) An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.(3) The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.(4) The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.(5) The tribunal’s power to act under subsection (1) is exercisable only by—(a) the tribunal as constituted for the proceeding; or(b) a legally qualified member, an adjudicator or the principal registrar. In Ryan v Cornwall[31] the tribunal considered whether s 61 of the QCAT Act could operate to extend the time within which proceedings could be commenced for breach of statutory warranty under the DBC Act. The tribunal held:27. The effect of section 43A of the LA Act declaring a limitation law of the State to be part of the substantive law of the State is to automatically extinguish the right on which a claim is based, once the limitation period for bringing proceedings to enforce the right has expired. 28. This is to be compared with a limitation period which is a procedural limitation period. Usually, procedural limitation provisions provide that an action “shall not be brought” after the limitation period has expired. The effect of a procedural provision is to bar resort to the courts for a remedy, but does not extinguish the right on which the claim is based. The right is still recognised by the law. A person who has other legal remedies, not subject to the limitation period, is able to exercise the right. 29. If section 51 of the Domestic Building Contracts Act 2000 was a procedural provision there would be little difficulty in extending the period of limitation expressed in that section, given that the underlying right survives the expiry of the period of limitation. However section 43A of the LA Act makes the provision a substantive provision. The underlying right is extinguished on the expiry of the period of limitation. Express statutory authority is required to revive that right. 30. I do not consider section 61 of the QCAT Act is expressed in sufficiently clear terms to override section 43A of the LA Act. An example of a statutory provision overriding section 43A of the LA Act is section 81 of the Supreme Court Act 1991, which provides, inter alia, that a court may order an amendment to be made even though a relevant period of limitation, current when the proceeding was started, has ended. That section expressly says that it applies despite the Limitation of Actions Act 1974. Other statutory provisions state that where a court makes an order extending a limitation period, the prior expiration of the limitation period has no effect for the purposes of that Act. 31. Section 61 is expressed in its heading to be “Relief from procedural requirements”. I do not think that it is directed to reviving expired rights of action. It is rather directed to matters set out in the QCAT Act and its enabling Acts, where time frames are set for machinery provisions of the legislation. The sorts of provisions covered are for example, applications to review a “reviewable decision” which must be made within 28 days. The note to section 33(3) of the QCAT Act indicates this time may be extended by section 61. Similarly it is anticipated by the note to section 143(4) of the QCAT Act that section 61 may be used to extend the 28 day time frame for starting an appeal against a decision of the Tribunal.[31][2010] QCAT 212.