Smith Developments Pty Ltd v Maybrey Pty Ltd - [2012] QCAT 234

CITATION:

Smith Developments Pty Ltd v Maybrey Pty Ltd and Ors [2012] QCAT 234

PARTIES:	Smith Developments Pty Ltd
v
Maybrey Pty Ltd Jan- Mar Trading Pty Ltd ESR Management Pty Ltd (known collectively as Moreton Island Development Group) (MIDG)

APPLICATION NUMBER:

BDL031-09

MATTER TYPE:

Building matters

HEARING DATE:

18 May 2012

HEARD AT:

Brisbane

DECISION OF:

Sandra G Deane, Member

DELIVERED ON:

13 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Smith Developments is to file in the Tribunal two (2) copies and give to MIDG one (1) copy of an Amended Application seeking to recover amounts as provided in s 42(4) of the QBSA Act by 4.00pm on 11 July 2012.

2. If Order 1 is not complied with the Application will be dismissed without further order and will proceed only in respect of the Response and Counter Application.

3. If Order 1 is complied with then:

a. MIDG is to file in the Tribunal two (2) copies and give to Smith Developments one (1) copy of any Amended Response and Counter Application by 4.00pm on 1 August 2012.

b. Smith Developments is to file in the Tribunal two (2) copies and give to MIDG one (1) copy of statements of evidence and copies of any relevant documents by 4.00pm 22 August 2012.

c. MIDG is to file in the Tribunal two (2) copies and give to Smith Developments one (1) copy of statements of evidence and copies of any relevant documents in response by 4.00pm 12 September 2012.

d. The parties must exchange and file in the Tribunal lists of issues by 4.00pm on 26 September 2012.

e. The matter is listed for a Directions Hearing at 1:30pm on 3 October 2012.

CATCHWORDS:

BUILDING – whether contractor unlicensed – prohibition on recovery of amounts by unlicensed contractor

Queensland Building Services Authority 1991, ss 42, 51, 51A, 77
Queensland Civil and Administrative Act 2009, s 64

Sutton v Zulo Enterprises Pty Ltd [2000] 2 Qd R 196
McCoy v Sloss and Anor [2012] QCAT 60
Marshall v Marshall [1999] 1 Qd R 173
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453
Cant Contracting Pty Ltd v Casella [2006] QCA 538
Nortask Pty Ltd and Speziali v Rodriguez [2008] QCCTB 250

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Smith Developments Pty Ltd represented by Mr BW Smith (director)
RESPONDENT:	Moreton Island Development Group represented by Mr L S Reidy of Counsel instructed by Creevey Russell Lawyers

REASONS FOR DECISION

Background

Smith Developments Pty Ltd brought a claim against Maybrey Pty Ltd, Jan- Mar Trading Pty Ltd and ESR Management Pty Ltd collectively known as Moreton Island Development Group (MIDG) for monies owing under a domestic building contract and for variations. MIDG has defended the claim variously on the grounds that they deny the variations, allege defects in the works and claim that Smith Developments is not a licensed contractor.
This hearing was restricted to preliminary points relating to the licensed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith Developments Pty Ltd v Maybrey Pty Ltd

Details

AGLC: Smith Developments Pty Ltd v Maybrey Pty Ltd [2012] QCAT 234
Case: [2012] QCAT 234
Decision Date: 13 June 2012

CaseChat Overview and Summary

Smith Developments Pty Ltd applied to the Queensland Building and Construction Commission seeking an adjudication of its dispute with Maybrey Pty Ltd. Smith Developments was a builder engaged by a homeowner to undertake construction works. Maybrey was engaged by the homeowner to design and supervise the works. The dispute arose out of Maybrey's alleged failure to properly supervise the works. Smith Developments submitted that it was entitled to recover from Maybrey the amount of $40,000 under section 42(4) of the Building Services Act 1991 (Qld). Maybrey argued that Smith Developments was an unlicensed contractor and therefore could not recover the amount. The court was required to determine whether Smith Developments was an unlicensed contractor and whether it was precluded from recovering amounts from Maybrey on that basis. The court found that Smith Developments was not an unlicensed contractor because it held a Class 1A Building Contractors Licence. As such, it was not precluded from recovering amounts from Maybrey under section 42(4) of the Act. The court ordered Smith Developments to file an amended application and set out a timetable for the remainder of the proceeding.

Orders

Orders of the court

2. If Order 1 is not complied with the Application will be dismissed without further order and will proceed only in respect of the Response and Counter Application.

3. If Order 1 is complied with then:

a. MIDG is to file in the Tribunal two (2) copies and give to Smith Developments one (1) copy of any Amended Response and Counter Application by 4.00pm on 1 August 2012.

b. Smith Developments is to file in the Tribunal two (2) copies and give to MIDG one (1) copy of statements of evidence and copies of any relevant documents by 4.00pm 22 August 2012.

c. MIDG is to file in the Tribunal two (2) copies and give to Smith Developments one (1) copy of statements of evidence and copies of any relevant documents in response by 4.00pm 12 September 2012.

d. The parties must exchange and file in the Tribunal lists of issues by 4.00pm on 26 September 2012.

e. The matter is listed for a Directions Hearing at 1:30pm on 3 October 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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