Tweddell v Palladio Pty Ltd and Smartbuilt Brisbane Pty Ltd t/as Termimesh pest Management

[2010] QCAT 652

CITATION: Tweddell v Palladio Pty Ltd and Smartbuilt Brisbane Pty Ltd t/as Termimesh pest Management [2010] QCAT 652

PARTIES:	James Tweddell and Rebecca Tweddell
v
Palladio Homes Pty Ltd and Smartbuilt Brisbane Pty Ltd t/as Termimesh Pest Management

APPLICATION NUMBER:   BDL335-10  

MATTER TYPE: Building matters

HEARING DATE:     23 December 2010

HEARD AT:  Brisbane

DECISION OF: Mr J Allen

DELIVERED ON: 23 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

The Second Respondent, Smartbuilt Brisbane Pty Ltd t/as Termimesh pest Management shall provide to the Applicants a certificate for the pest management system installed by it at lot 433 Sovereign Mile, sovereign island within 14 days of the date of this order.

The Second Respondent, Smartbuilt Brisbane Pty Ltd t/as Termimesh pest Management shall pay the Applicants costs of this application limited to the amount of $255 within 14 days of the date of this order

CATCHWORDS :  Failure to file response Rule 44 of the QCAT Rules, Decision if party causing disadvantage section 48 of Queensland Civil and Administrative Tribunal Act 2009, failure to supply termite certificate.

REASONS FOR DECISION

1. Mr and Mrs Tweddell are the owners of land at Lot 433 Sovereign Mile, Sovereign islands. They had contracted with Palladio Homes Pty Ltd (Palladio) to build a home on the land by contract dated 13 November 2007. A dispute occurred and Palladio terminated the contract and an Agreement of Compromise, Release and Indemnity was entered between the Tweedell’s and Palladio on 2 July 2009. One of the terms of that deed was to the effect that Palladio would deliver all building certificates in its possession to the Tweddell’s on 19 June 2009.

2. Smartbuilt Brisbane Pty Ltd t/as Termimesh Pest Management (Termimesh) installed a termite management system in respect of the home during the period that the construction was under the control of Palladio. The construction of the home was subsequently completed by Paul Stringer t/as PGS Constructions. Mr Stringer approached Termimesh to obtain necessary certification documents in respect of the termite management system to enable the final certificate for completion of the building to be obtained. It is alleged that this was refused on the basis that Palladio had given an instruction not to release the certificate.

3. Requests were subsequently made to both Palladio and Termimesh for the release of the certificate to no avail. Finally an application was made to the Tribunal to resolve the matter on 14 October 2010. Palladio filed a response to the application on 5 November 2010. Palladio in their response claim that they have never been in possession of the certificate and deny that they instructed Termimesh not to provide the certificate.

4. An affidavit was filed by the applicants, Solicitors proving that Termimesh was served with the application by post and facsimile transmission on 22 October 2010. Termimesh have not filed a response to the application. The applicant has now made an application for a decision by default in respect of Termimesh. The application for decision by default is made in accordance with practice direction No 9 of 2010 and on its face complies with that practice direction.

5. The orders that the applicant is seeking are that Termimesh provide the requested certificate and costs.  The Tribunal is satisfied that Termimesh carried out the work in respect of the termite management system at the Tweddell’s property and that Termimesh would have in its possession either the original or duplicate certificate or the material necessary to create a new certificate in respect of that work. The Tweddell’s wish to finalise the construction of the home and are unable to obtain the final certificate until the termite certificate is obtained. They also wish to sell the property and are being disadvantaged in not being able to finalise this matter. Termimesh have had the opportunity to provide a response and have failed to in accordance with the time period of 14 days set down in rule 44 of the Tribunal Rules.

6. The Tribunal decides this matter in accordance with section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The tribunal is satisfied that Termimesh is causing disadvantage to the Tweddell’s by not providing its response to the application. The Tribunal is satisfied that Termimesh has the certificate requested by the Tweddell’s or a duplicate thereof or sufficient detail to create a new certificate. The tribunal orders that a certificate be provided by Termimesh in respect of the termite management system installed by it at Lot 3433 Sovereign Mile, Sovereign Islands to the Applicant within 14 day of the date of this order.

7. The Tweddell’s have also requested costs in respect of the application and the application for a decision by default but have not as required by the practice direction provided any details of the costs claimed. The tribunal determines costs in accordance with section 102 of the QCAT Act and these are limited to where costs are required in the interests of justice. The Tribunal may have regard to whether a party has unnecessarily disadvantaged another and the nature and complexity of the proceeding. The Tweddell’s have been disadvantaged by the conduct of both respondents and this matter should have been resolved by the party with the possession of the certificate providing it to the Tweddell’s at their request. This did not occur. It would be unfair though for Termimesh to be expected to pay all of the costs and there has not been any material put before the Tribunal in terms of what those costs are. Recognising though that the Tweddell’s should receive some of their costs the Tribunal orders that Termimesh pay the Tweddell’s cost limited to the filing fee in respect of the application in the amount of $255.00 within 14 days of the date of this order.