Roberts v Nunn

CITATION: Roberts and Anor v Nunn [2012] QCATA 131

PARTIES:	Shane Gavin Roberts Jacqueline Mary Roberts (Applicant/Appellant)
v
Adrian Nunn trading as AL Nunn Design Construction Builders (Respondent)

APPLICATION NUMBER: APL453-11

MATTER TYPE: Appeals

HEARING DATE: 4 April 2012

HEARD AT: Brisbane

DECISION OF: Hon James Thomas, AM QC, Member
Michelle Howard, Member

DELIVERED ON: 31 July 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.     Leave to appeal granted.

2.     Appeal allowed and tribunal orders of 11 November 2011 in BD312-07 are set aside.

3.     In lieu thereof orders are made in terms of paragraphs 4, 5 and 6 below.

4. The respondent Nunn’s claims in application BD312-07 are dismissed pursuant to section 60 of the Commercial and Consumer Tribunal Act 2003.

5.     Leave is granted to the respondents Roberts to amend their counterclaim to include: “Orders Sought: 1. That the respondents (Roberts) be paid the sum of $32,484.20, from the amount held in the Queensland Master Builders Trust Account in respect of this dispute; and (2) That the applicant (Nunn) pay the costs of Roberts of and incidental to the action and the counterclaim on a reasonable basis to be assessed by a professional legal cost assessor appointed by the Tribunal.”

6(a)     Unless the applicant Nunn provides to the Tribunal three copies of a defence to the owners’ amended counterclaim on before 15 August 2012 judgment be entered in these proceedings for the respondents Roberts against the applicant Nunn in the sum of $32,484.20; and in the event that such a judgment is entered, either party is at liberty to apply to the Tribunal for directions concerning the disposition of the balance of the fund.

(b)   In the event that the applicant Nunn files a defence in accordance with order 6(a) above, the respondents Roberts’ application for judgment on the amended counterclaim is remitted to the tribunal for determination.

(c)    With respect to the remitted amended counterclaim the respondents Roberts may file any witness statements and supporting submissions on or before 3 September 2012, and the applicant Nunn may file any witness statements and supporting submissions in reply by 19 September 2012.

(d)   All issues as to costs of the claim and counterclaim, including the costs declared in this order to be the respondents Roberts’ costs in the cause are remitted to the Tribunal for final determination.

(e)    Unless otherwise ordered all the above determinations will be on the papers.

CATCHWORDS:

Appeals and leave to appeal – domestic building dispute in Commercial and Consumer Tribunal – appeal to District Court before "commencement day”– transitional provisions – application of section 260 of QCAT Act – whether matter had to be dealt with under provisions of CCT Act – application to dismiss claim – whether section 60 of CCT Act or section 48 of QCAT Act applicable – application not dealt with by member – leave to appeal – criteria for determination of such applications – costs

Commercial and Consumer Tribunal Act 2003, s 60
Queensland Civil and Administrative Tribunal…