Ryan v Cornwall

[2010] QCAT 212

CITATION: Ryan v Cornwall [2010] QCAT 212

PARTIES:	David John Ryan and Rene Marea Ryan
v
Kenneth Edward Cornwall

APPLICATION NUMBER:   BDL010-10

MATTER TYPE: Building matters

HEARING DATE:     On the Papers

HEARD AT:  Brisbane 

DECISION OF: Member  Fitzpatrick

DELIVERED ON: 13 May,2010

DELIVERED AT:      Brisbane

ORDERS MADE:

It is Ordered that:

1. those parts of application number BDL010-10 with respect to an alleged breach of statutory warranty pursuant to the Domestic Building Contracts Act 2000, by the Respondent, be struck out, as being out of time.
2. the Applicants have leave to file and serve an amended Application.
3. the parties attend a Directions Hearing on 26 May 2010 in Brisbane at 1:30pm for the timetabling of steps in this proceeding, including a date for a compulsory conference to be held between the parties.

CATCHWORDS :  Section 43A of the Limitation of Actions Act 1974; section 51 of the Domestic Building Contracts Act 2000; effect of section 61 of the Queensland Civil and Administrative Tribunal Act 2009.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	David John Ryan and Rene Marea Ryan represented by Brendan Cuddihy of Jeffery Cuddihy & Joyce, Solicitors.
RESPONDENT:	Kennth Edward Cornwall represented by Greenhalgh Pickard, Solicitors.

REASONS FOR DECISION

1. This is an Application by the applicants, Mr. and Mrs. Ryan that the time for bringing their Application be extended.

2. The respondent, Mr. Cornwall, has also sought orders detailed later in this Decision.

3. For convenience I will refer to the parties as Mr. and Mrs. Ryan and Mr. Cornwall.

Background

1. Mr. Cornwall was the builder and at the time of sale to Mr. and Mrs. Ryan was part owner of a house at 59 Forest Ridge Circuit, Peregian Springs.

2. Mr. and Mrs. Ryan purchased the property from Mr. Cornwall and Trina Mary Cornwall by way of a contract dated 4 February, 2002. Prior to sale, the house had been used as a display home, but never occupied. They occupied the property from March, 2002.

3. Mr. Cornwall states that construction of the house was completed on November, 2001.

4. Mr. and Mrs. Ryan allege that in January, 2009 they became concerned that a large number of tiles appeared to be drummy and that on 3 February, 2009 a pest inspection revealed a suspected failure of the waterproofing throughout wet areas of the house.

5. In February and March, 2009 Mr. and Mrs Ryan removed tiles and found a number of issues which have given rise to their allegations against Mr. Cornwall, that he,  or his servants, agents or subcontractors were negligent. The particulars of negligence are set out in the original application filed on 8 January, 2010.  The particulars are:

   (a)failure to perform tiling works throughout the building in a good and workmanlike manner;

   (b)failure to appropriately waterproof and seal wet areas;

   (c)failure to use any or any sufficient amount of glue as may be necessary to adhere the tiles to the substate in an adequate manner;

   (d)failure to use any or any sufficient expansion joints throughout the tiling;

   (e)failure to properly seal…