Tamawood Ltd v Paans & Anor

DISTRICT COURT OF QUEENSLAND

CITATION:

Tamawood Ltd v Paans & Anor [2004] QDC 427

PARTIES:

TAMAWOOD LTD

Appellant

v

ELIZABETH PAANS

First Respondent

and

PHIL MARTYN CONSTRUCTIONS PTY LTD

Second Respondent

FILE NO/S:

Appeals 2660/2004;  3286/2004

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2004

JUDGE:

McGill DCJ

ORDER:

Leave to appeal refused with costs.  Second respondent’s application refused.  Leave to first respondent to appeal, set aside decision of 17 August 2004, and in lieu orders that the appellant and second respondent pay the first respondent’s costs of the proceeding in the Tribunal to be assessed on the District Court Scale where the amount recovered is less than $50,000.

CATCHWORDS:

INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – Costs – ordinary principles applicable.

BUILDING AND ENGINEERING CONTRACTS – Performance of work – slab built too low – whether failure to build in proper and tradesperson-like manner – significance of level on plan.

APPEAL AND NEW TRIAL – Practice – joinder of appellant after expiration of time for appeal – not available – whether cross-appeal available.

Commercial and Consumer Tribunal Act 2003 ss 70, 71, 100.

Bellgrove v Eldridge (1954) 90 CLR 613 – applied.

Coulton v Holcombe (1986) 162 CLR 1 – applied.

Latoudis v Casey (1990) 170 CLR 534 – applied.

Oshlack v Richmond River Council (1998) 193 CLR 72 – applied.

COUNSEL:

A E Lyons for the appellant, and for the second respondent
A B Wallace for the first respondent

SOLICITORS:

W Goodwin solicitor for the appellant, and for the second respondent
McAlister & Cartmill solicitors for the first respondent.

1. On 6 November 1998 Ms Paans signed a contract to have a house built on some land that she owned on the Sunshine Coast.  She signed this following negotiations with Tamawood Limited (“Tamawood”), and the contract nominated as builder, Phil Martyn Constructions Pty Ltd (“Martyn”).  The house was built, and Ms Paans moved into it.  Unfortunately, the floor level of the house is too low.  On two or three occasions since she moved in, when there has been heavy rain, water has come into the garage, and once into the house and flooded part of the floor.  On other occasions water has ponded in the yard.  Ms Paans took proceedings against Tamawood and Martyn, and ultimately the Commercial and Consumer Tribunal (“the Tribunal”) ordered that each of them pay her $10,000.  That the homeowner should recover compensation in such circumstances is entirely unsurprising.  What is less unsurprising is that the Tribunal declined to make any order for costs in her favour.  All of the parties now seek leave to appeal against the Tribunal’s decisions, Tamawood and Martyn seeking to escape liability, while Ms Paans is seeking an order in respect of her costs.

1. One would expect the resolution of such a matter would be simple and uncomplicated.  Unfortunately a host of complications have arisen, some because of the actions of the parties, or their legal advisers,…