Tait Management Services Pty Ltd v Boyle

CITATION: Tait Management Services Pty Ltd v Boyle and Anor [2012] QCAT 90

PARTIES:	Tait Management Services Pty Ltd t/a Bowen Terrace Accommodation (Applicant)
v
Terry Boyle t/a HBC Projects HBC Projects Pty Ltd (Respondents)

APPLICATION NUMBER: MCDO2179-11

MATTER TYPE: Other minor civil disputes matters

HEARING DATE: 8 February 2012

HEARD AT: Brisbane

DECISION OF: Jeremy Gordon, Adjudicator

DELIVERED ON: 7 March 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    HBC Projects Pty Ltd be joined as Second Respondent.

2.    The Respondents are jointly liable to pay the sum of $492.50 to the Applicant which sum is payable immediately.

CATCHWORDS:

Minor Civil Dispute – Claim for damages arising from building work brought as minor debt claim – No contract between parties – Whether QCAT has jurisdiction – Correction of defect in proceedings – Extent of duty of subcontractor

Queensland Civil and Administrative Tribunal Act 2009, ss 11, 33, 61
Queensland Civil and Administrative Tribunal Rules 2009, rule 7
Queensland Building Services Authority Act 1991, ss 75, 76, 77
Domestic Building Contracts Act2000, s 8
Building and Construction Industry Payments Act 2004 s10
Australian Consumer Law (applied by the Fair Trading Act 1989), ss 3, 60, 61, 267

Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134 referred to
Bryan v Maloney (1995) 182 CLR 609 applied
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 applied
Barclay v English & Ors [2009] QSC 258 applied
Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682 applied

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Maria Tait and Joseph Tigani

RESPONDENT: Terry Boyle

REASONS FOR DECISION

1. In this claim, filed on 14 July 2011, the Applicant seeks damages from Mr Boyle for defective painting and decorating work, and damage to property.

1. The main issues in the case are:

(a)whether there was a contract between the Applicant and Mr Boyle;

(b)if there was no such contract, whether QCAT has jurisdiction to hear the claim at all;

(c)whether the claim is brought in the correct form and if not, whether that defect can be waived;

(d)the nature and extent of any duty owed by Mr Boyle to the Applicant which is within the jurisdiction of QCAT;

(e)the merits of the claim in light of the answers to the issues set out above.

1. The Applicant runs a 14 room guest house at 365 Bowen Terrace New Farm QLD 4005 and is the lessee of those premises under a registered lease.  The landlord of those premises is Mrs Laura Rosa.  By the lease the landlord covenanted to keep the premises in a “good structural state and condition”, and to “maintain the premises when required as a result of latent defects and fair wear and tear”.  These covenants can be contrasted with the tenant’s covenant to “keep in repair, fair wear and tear excepted”. 

1. The Applicant identified many areas of the premises which required work to be done by the landlord under the…