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  • Unreported Judgment

Ramm v Ramm

 

[2020] QCAT 102

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ramm v Ramm [2020] QCAT 102

PARTIES:

colin leslie ramm

 

(applicant)

 

v

 

ashley david ramm

 

(respondent)

APPLICATION NO/S:

BDL058-19

MATTER TYPE:

Building matters

DELIVERED ON:

8 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. Colin Leslie Ramm must file in the Tribunal two (2) copies and give to Ashley David Ramm one (1) copy of submissions addressing whether the Tribunal should extend time under s 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to enable Colin Leslie Ramm to proceed with a claim for breach of statutory duty pursuant to s 51(1)(a) of the Domestic Building Contracts Act 1991 (Qld) (the extension of time), by 4:00pm on 23 April 2020.
  2. Ashley David Ramm must file in the Tribunal two (2) copies and give to Colin Leslie Ramm one (1) copy of submissions addressing the extension of time, by 4:00pm on 7 May 2020.
  3. Colin Leslie Ramm must file in the Tribunal two (2) copies and give to Ashley David Ramm one (1) copy of submissions in reply, by 4:00pm on 14 May 2020.
  4. The application for an extension of time will be determined by a member of the Tribunal on the papers and without an oral hearing, not before 14 May 2020.

CATCHWORDS:

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT – DAMAGES - where applicant alleges defective building work – where respondent has filed an application to dismiss proceedings on the basis that the claim is time-barred under s 10 of the Limitation of Actions Act 1974 (Qld) – where 6 years is the period of limitation prescribed - where applicant does not articulate a claim by reference to any identified cause of action – where cause of action for a claim in a breach of contract or a claim in tort arose in 2010 – where the claim should have been commenced by 2016 - where claim brought in 2019 - where the claim for damages was not commenced within the period of limitation prescribed

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT– STATUTORY WARRANTIES FOR RESIDENTIAL BUILDING WORK - where a claim for a breach of warranty must be commenced within 6 years and 6 months after work is finished under s 51(a) of the Domestic Building Contracts Act 1991 (Qld) – where relevant work finished in 2008 –  where time limit has passed - where the tribunal may extend time to commence proceedings even if the relevant time has passed under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where no application by applicant to extend the time limit – where applicant should be permitted to make submissions addressing the issue

Domestic Building Contracts Act 1991 (Qld), s 32(1)(a), s 44, s 51, s 51(1), s 51(1)(a)

Limitation of Actions Act 1974 (Qld), s 7, s 10, s 10(1)(a), s 11(2), s 29, s 31, s 32, s 32A, s 43, s 43A, s 43A(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 61(1), s 61(1)(a), s 61(2), s 61(3)

Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245

Cartledge v E Jopling & Sons Ltd [1963] AC 758

Commonwealth of Australia v Mewett (1997) 146 ALR 299

Hawkins v Clayton (1988) 164 CLR 539

Hyacinth Developments Pty Ltd v Scenic Rim Regional Council & Ors [2018] QSC 230

Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2015] 1 Qd R 476

Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1

Pullen and Anor v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27

Reynolds v Aluma-Lite Products Pty Ltd (No 2) [2010] FCA 914

Ryan v Cornwall [2010] QCAT 212

Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

Watkins v Queensland Building Services Authority [2013] QCAT 535

Winnote Pty Ltd (in liq) v Page (2006) NSWLR 531

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

J Morgan, solicitor of Grant & Simpson Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

What is this application about?

  1. [1]
    Colin Ramm and Ashley Ramm are cousins. Colin says that he engaged Ashley to undertake building work at his house in 2008. Colin says that the work is defective and he has commenced proceedings in the tribunal claiming damages.
  2. [2]
    Ashley has filed an application to dismiss the proceedings on the basis that they have been commenced after the expiration of the limitation period prescribed by the Limitation of Actions Act 1974 (Qld) (‘LAA’).
  3. [3]
    Ashley’s application to dismiss the proceedings falls for determination.
  4. [4]
    It is appropriate at the outset to consider the following statement by Douglas J in Hyacinth Developments Pty Ltd v Scenic Rim Regional Council & Ors:[1]

It is convenient to address the summary judgment application first and to recognise that the defendants’ application, based as it is on an argument that the plaintiff’s action is brought out of time, faces the significant hurdle of the decision in Wardley Australia Ltd v Western Australia that it is undesirable that limitation questions of this kind should be decided in interlocutory proceedings except in the clearest of cases as, generally speaking, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.

The material filed by the parties

  1. [5]
    In addition to the application to dismiss the proceedings, Ashley relies upon an affidavit by himself[2], and submissions filed in support of the application.[3]
  2. [6]
    Colin has filed a response to Ashley’s affidavit and submissions.[4] The submissions are handwritten and reply in detail to each paragraph of Ashley’s affidavit. Colin’s response is, in effect, his evidence and I have proceeded on this basis.

The background to the dispute

  1. [7]
    Colin says that in 2008 he contracted with Ashley to undertake building work at his home.
  2. [8]
    The work involved the rendering and painting of the exterior walls of Colin’s residence. The exterior of the upper level of Colin’s residence was cement sheeting and the lower level was brick. The render was applied to the exterior walls of both the upper and lower levels.
  3. [9]
    There is a dispute about whether there was an agreement between Colin and Ashley for Ashley to undertake the work. Ashley says that the contractor undertaking the work was Mr Black. Ashley says that he did not enter into an agreement with Colin. As these reasons explain, whether there was an agreement between Colin and Ashley is not ultimately determinative of the application to dismiss the proceedings.
  4. [10]
    Colin says that the works were completed in December 2008. He says that he first became aware of problems with the works in or around 2010.[5] Colin says that the render started to delaminate from the lower level brickwork at various points.
  5. [11]
    Colin says he contacted Ashley and told him about the problem with the rendering, that Ashley subsequently inspected the works and told Colin that he would rectify the problem. Colin says Ashley told him that he (Ashley) would first have to ascertain why the render had failed to adhere to the walls. Ashley says that after being contacted by Colin, he arranged to meet at Colin’s residence together with Mr Black and representatives of the supplier and the manufacturer of the render. Ashley’s evidence is not entirely clear as to when the meeting took place. Colin says that the meeting occurred on 1 July 2016. It is common ground between the parties that following the meeting and inspection of the work, samples of the render were taken for analysis. A subsequent report identified the cause of the problem as inadequate surface preparation prior to the application of the render.[6]
  6. [12]
    In November 2018 Colin obtained a building inspection report in relation to the rendering.[7] The report identifies the presence of delaminated render. The possible causes of the delamination are identified as poor surface preparation, product failure in manufacturing and product failure as a result of moisture exposure during transport or storage.[8]
  7. [13]
    In December 2018 Colin complained to the Queensland Building and Construction Commission (‘QBCC’). On 5 December 2018 the QBCC wrote to Colin advising him that it could not assist with the complaint about defective building work. Of particular relevance to the present application is the statement, ‘In reviewing your complaint, I have noted that you noticed the complaint item/s between 2011 and 2012 and lodged a complaint with QBCC on 4 December 2018’.[9]

The claim by the applicant

  1. [14]
    Not unsurprisingly Colin, noting that he is not legally represented, does not articulate a claim against Ashley by reference to any identifiable cause of action. Ashley’s submissions refer to the application of s 10 of the LAA On a proper reading of his submissions, Ashley says that the claims by Colin are in contract and in tort.
  2. [15]
    Section 10 of the LAA provides that an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person, shall not be brought after the expiration of six years from the date on which the cause of action arose.[10]
  3. [16]
    A cause of action for a breach of contract arises when the contractual term is breached, irrespective of when damage occurs.
  4. [17]
    Where a person seeks to enforce a right based upon a breach of a duty, that is to say a claim for damages for negligence, the cause of action accrues when the person suffers damage as a result of the breach of duty. The damage must however be more than minimal or trifling.
  5. [18]
    Professor Dal Pont observes in Law of Limitation:

Limitations statutes are not prescriptive; and so it is not strictly accurate to speak in terms of ‘breaching’ the Limitation Act. They simply stipulate a consequence for failing to commence an action within the relevant limitation period. The nature of that consequence rests on the wording of the statute in issue. The traditional statutory language — expressed in terms that ‘no action … shall be brought after the expiration of [a stated time] after the cause of action accrued’ — while susceptible of being read as limiting a court's jurisdiction to hear and determine an action of the kind described, has received no such construction. Instead, it has been held to bar the remedy (unless the plaintiff can adduce grounds to extend time), not the right. ‘The intention of the law of limitation’, it is said, is ‘not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right’.[11]

  1. [19]
    Referring to statutes of limitation generally, the tribunal in Watkins v Queensland Building Services Authority observed:

Those limits are clearly procedural. If an opponent does not take the point, “the matter of the statutory bar does not arise for the consideration of the court”. It is then quite unnecessary to seek an extension of time. General limitation Acts bar access to curial remedies; they do not extinguish causes of action. Unlike subsection 86(2) of the QBSAA they “affect procedure, not substance”. That is why, absent a plea in bar, a claim that is potentially caught by the Limitation of Actions Act 1974 may simply proceed without let, hindrance, or extension. That is why an acknowledgement of debt or a part payment restores the right to sue for a debt otherwise “stale”.[12]

  1. [20]
    Section 10(1)(a) of the LAA operates to bar the remedy, not the right. The LAA permits the extension of time to commence proceedings in very limited circumstances.[13] The LAA does not permit an extension of time for an action founded on contract or tort (other than a claim for damages for personal injury). Accordingly if an action for breach of contract or breach of duty is commenced after 6 years from the date on which the cause of action arose, and the point is taken by the respondent, the action is prima facie statute barred.

Claim in contract

  1. [21]
    It cannot be contentious that, if there was a contract between Ashley and Colin, the contract was breached as alleged by Colin when Ashley undertook the rendering and painting work. On any view, that work was undertaken more than six years before these proceedings were commenced.
  2. [22]
    I conclude that any claim by Colin for breach of contract was not commenced within the period prescribed by s 10(1)(a) of the LAA. Any claim is statute barred.

Claim in tort

  1. [23]
    As I have observed, ordinarily a cause of action in tortious negligence arises when a claimant first suffers material damage, provided that the damage is more than negligible and the loss is measurable.[14] It is not necessary that the claimant is aware of the damage.[15] There is understandably a sense of injustice in having time running against a claimant when damage could not possibly have been discovered.
  2. [24]
    The House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners[16] decided that the occurrence of damage could not be determined by reference to the discovery of that damage and that time starts running against a claimant once physical damage occurs. 
  3. [25]
    It was held in Pullen and Anor v Gutteridge Haskins and Davey Pty Ltd that:

The position is different in cases where all or some of the damage, be it in the form of physical injury to person or property or present economic loss, is directly sustained in the sense that it does not merely reflect diminution in value or other consequential damage which occurs or is sustained only when a latent defect which has existed . . . becomes manifest. In those cases, damage is sustained when it is inflicted or first suffered and the cause of action accrues at that time.[17]

  1. [26]
    Pullen[18] involved the design and construction of a swimming centre. The defendant engineer had advised on, designed and supervised the construction of the footing system. The Court in Pullen defined the damage in cases of latent defects as the cause of the loss other than the observable damage which results from it. It was only when the plaintiff in Pullen could reasonably realise that defective footings were causing the cracking that time started to run against the plaintiff.
  2. [27]
    The Queensland Court of Appeal in Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited[19] considered the issue of when the cause of action accrues in a claim for negligence against a builder. In Melisavon, negligence was alleged in respect of the design and engineering of a concrete slab and surrounds. The building design was completed in 2003 and the construction of the building subsequently undertaken. The building owner alleged that in 2009 and 2010 the building slab and surrounds were damaged or failed. The engineer claimed that the damage first occurred in late 2003 or early 2004 and the building owner’s claim, commenced in 2011, was therefore statute barred.
  3. [28]
    McMurdo P stated:

[43] … for the purposes of s 10(1)(a) of the Limitations of Actions Act, the respondent’s cause of action, which is at least arguably solely for economic loss, arose when it suffered economic loss, that is, when the latent defect, the alleged negligently engineered design of the clubhouse, first became known or manifest in the sense of being discoverable by reasonable diligence. That is because it was only then that the respondent suffered an actual diminution in the market value of the clubhouse.[20]

  1. [29]
    Her Honour went on to observe:

[48] It may be that ultimately a trial judge will find that the respondent acting reasonably should have made further enquiries in 2003 or that a prudent notional purchaser observing the cracking in 2003 would have obtained independent engineering advice and discovered the faulty design. In that case, the faulty design would have become manifest in 2003 and the respondent would have suffered either direct physical damage or resultant economic loss or both so that its action would be statute-barred.

[49] On the other hand, if these findings were resolved in favour of the respondent, economic loss did not arise until the respondent actually discovered the faulty design or, using reasonable diligence, discovered that the faulty design had become manifest. Its economic loss would be the loss in value of the clubhouse arising from the faulty design.[21]

  1. [30]
    McMurdo P placed reliance upon the decision in Pullen:[22]

[33] Their Honours concluded that in Pullen time began to run for limitation purposes when the latent defect, (the inadequacy or unsuitability of the footings) first became known or manifest. Their Honours further observed that, in determining the plaintiffs' knowledge, regard must be had to the defendant's conduct:

"It was the expert and its conduct as regards the [plaintiffs] as soon as problems emerged with the centre tended to suggest to the [plaintiffs] that the problems being experienced were not the result of inadequate footings. Another important matter to be borne in mind, whether one is considering knowledge or manifestation, is that what must be known or made manifest is the inadequacy of the footings, and that on the facts of this case settlement in general and differential settlement in particular does not necessarily bespeak inadequacy of the footings."

The Court concluded that the evidence at trial was insufficient to establish that the inadequacy of the footings was made known or manifest before the expiry of the limitation period.[23]

  1. [31]
    Holmes JA (as Her Honour then was) reached a different view stating:

[64] The court in Pullen reviewed the various features of the evidence which were said to show that the inadequacy of the footings had become manifest. It was not satisfied that some of the evidence of observations of damage in fact related to the period before the critical date (that is, six years before the writ was filed). Nor was it satisfied that other forms of damage were in fact a manifestation of the inadequacy of the footings. Having dealt with the absence of any actual manifestation of the latent defect, the court went on to say that the respondent had also failed to show that the inadequacy of the footings was known to the appellant before the critical date; in that regard the statements made by the respondent about the causes of the observable damage were relevant.

[65] It does not seem to me, then, that Pullen can be regarded, as was suggested in Cyril Smith, as

“authority for the proposition that even where actual damage caused by the latent defect in the building has been suffered more than six years before the commencement of the litigation, the cause of action does not accrue until the link between the physical manifestation and the underlying defect is known or ought to be known.”

Rather, Pullen takes the conventional approach that the cause of action accrues where actual damage caused by a latent defect is manifested or the existence of the underlying defect is known or ought to be known.

[66] In the present case, in my view, the latent defect – the slab which was faulty in design, being unable to tolerate ground heave – became manifest, on the respondent’s own pleadings and evidence, when the cracking in the buggy parking area occurred in 2003. It is not to the point that the respondent was misled as to the cause of the cracking. It was the product of the defect and was plainly not so minimal as not to produce economic loss: the quote for repair was $25,000. That was the point at which the cause of action accrued. In my view the appellant is right to contend that the action was brought outside the limitation period and they were entitled to summary judgment.[24]

  1. [32]
    Where the members of the Court of Appeal diverged in Melisavon[25] was in addressing whether the respondent’s cause of action was complete when it had actual knowledge of the appellant's faulty engineering design giving rise to the damage or, alternatively, when the damage was sustained irrespective of whether the respondent had knowledge of the faulty design. McMurdo P (Ann Lyons J agreeing with the final orders although, it should be noted, not specifically agreeing with McMurdo P’s conclusions regarding the test to be applied in determining when the cause of action accrued) held that the cause of action did not accrue until the faulty design (responsible for the damage) became known or was otherwise discoverable by reasonable diligence. Holmes JA found that the orthodox approach applied, that is, the cause of action arose when the damage was sustained irrespective of knowledge as to the link between the damage and the alleged negligent act.
  2. [33]
    Noting the divergent views of the members of the Court of Appeal, the effect of the decision in Melisavon is that the limitation period for a claim for breach of duty in a building construction claim may not start to run until the link between the physical manifestation of damage and the underlying defect responsible for the damage is known or ought to be known.
  3. [34]
    Whether Colin’s claim in negligence is one solely for damages for economic loss (based upon diminution in the value of the dwelling), or one for damages for actual physical damage to the dwelling, applying either of the tests expressed in Melisavon, the cause of action accrued when Colin identified what he refers to as the ‘failed render’ in 2010 following which he arranged for Ashley to inspect the works.[26] The inadequacy of the rendering product and/or the manner in which the render was applied became manifest, and damage to the property was sustained, when the render cracked and lifted. It was at this point in time that Colin had knowledge, or could have discovered by reasonable diligence, that the work undertaken by Ashley was defective either in respect of the manner in which the work was undertaken, the materials used, or a combination of both.
  4. [35]
    Accepting that, at the very latest, Colin identified the defect at the end of 2010, any proceedings should have been commenced by the end of 2016.
  5. [36]
    I conclude that any claim by Colin for damages for negligently performed building work was not commenced within the period of limitation prescribed the LAA. Any claim is statute barred.

Limitation of Actions Act 1974 (Qld), Queensland Civil and Administrative Tribunal Act 2009 (Qld) and actions for breach of statutory warranty under the Domestic Building Contracts Act 1991 (Qld)

  1. [37]
    The building work, the subject the present dispute, is governed by the provisions of the (now repealed) Domestic Building Contracts Act 1991 (Qld) (‘DBC Act’). The DBC Act implies into all regulated contracts certain warranties including that all materials to be supplied for use in building work will be good and suitable for the purpose for which they are used[27] and that building work will be carried out in an appropriate and skilful way and with reasonable case and skill.[28] A proceeding for a breach of a warranty must be commenced within six years and six months after the work is finished.[29]
  2. [38]
    A limitation law is to be regarded as part of the substantive law of Queensland.[30] A substantive limitation law is one that operates to extinguish the right on which a claim is based, once the limitation period for bringing proceedings to enforce the right has expired.
  1. [39]
    The operation of s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)
  2. [40]
    Section 61 of the QCAT Act provides as follows:

61 Relief from procedural requirements

  1. (1)
     The tribunal may, by order—
  1. (a)
     extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
  1. (b)
     extend or shorten a time limit fixed by this Act, an enabling Act or the rules or
  1. (c)
     waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
  1. (2)
     An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
  1. (3)
     The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
  1. (4)
     The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
  1. (5)
     The tribunal’s power to act under subsection (1) is exercisable only by—
  1. (a)
     the tribunal as constituted for the proceeding; or
  1. (b)
     a legally qualified member, an adjudicator or the principal registrar.
  1. [41]
    In Ryan v Cornwall[31] the tribunal considered whether s 61 of the QCAT Act could operate to extend the time within which proceedings could be commenced for breach of statutory warranty under the DBC Act. The tribunal held:
  1. The effect of section 43A of the LA Act declaring a limitation law of the State to be part of the substantive law of the State is to automatically extinguish the right on which a claim is based, once the limitation period for bringing proceedings to enforce the right has expired.
  2. This is to be compared with a limitation period which is a procedural limitation period. Usually, procedural limitation provisions provide that an action “shall not be brought” after the limitation period has expired. The effect of a procedural provision is to bar resort to the courts for a remedy, but does not extinguish the right on which the claim is based. The right is still recognised by the law. A person who has other legal remedies, not subject to the limitation period, is able to exercise the right.
  3. If section 51 of the Domestic Building Contracts Act 2000 was a procedural provision there would be little difficulty in extending the period of limitation expressed in that section, given that the underlying right survives the expiry of the period of limitation. However section 43A of the LA Act makes the provision a substantive provision. The underlying right is extinguished on the expiry of the period of limitation. Express statutory authority is required to revive that right.
  4. I do not consider section 61 of the QCAT Act is expressed in sufficiently clear terms to override section 43A of the LA Act. An example of a statutory provision overriding section 43A of the LA Act is section 81 of the Supreme Court Act 1991, which provides, inter alia, that a court may order an amendment to be made even though a relevant period of limitation, current when the proceeding was started, has ended. That section expressly says that it applies despite the Limitation of Actions Act 1974. Other statutory provisions state that where a court makes an order extending a limitation period, the prior expiration of the limitation period has no effect for the purposes of that Act.
  5. Section 61 is expressed in its heading to be “Relief from procedural requirements”. I do not think that it is directed to reviving expired rights of action. It is rather directed to matters set out in the QCAT Act and its enabling Acts, where time frames are set for machinery provisions of the legislation. The sorts of provisions covered are for example, applications to review a “reviewable decision” which must be made within 28 days. The note to section 33(3) of the QCAT Act indicates this time may be extended by section 61. Similarly it is anticipated by the note to section 143(4) of the QCAT Act that section 61 may be used to extend the 28 day time frame for starting an appeal against a decision of the Tribunal.
  1. [42]
    In Aurisch v Millsons Pty Ltd and Others[32] the tribunal considered the application of s 61 in extending the time to commence proceedings under s 51 of the DBC Act. The tribunal referred to the decision of Logan J in Reynolds v Aluma-Lite Products Pty Ltd (No 2).[33] The tribunal held:

[25] The decision of Justice Logan in Reynolds v Aluma-Lite Products about the effect of s 43A in characterisation of a limitation provision for a choice of law analysis is directly relevant and applicable. Having regard to the Explanatory Notes regarding the insertion of section 43A into the LA, it is clear that it was inserted for the purposes of determining choice of law issues, so that when applied in another jurisdiction as the law governing proceedings, Queensland limitation laws will be applied. It was inserted to discourage forum shopping. Accordingly, I do not construe section 43A to make the time limit in section 51 of the DBC Act a substantive provision.

[26] However, in that decision, Justice Logan was considering limitation periods contained in the LA Act. His broader comments must be understood in that context. Specifically, section 7 of the LA Act provides that subject to s 43A and 11(2), which is not relevant in this case, the LA Act does not apply to an action for which a limitation period is fixed in another Act. In this instance, the relevant time limit is set in the DBC Act.

[27] The observations of Justice Windeyer in Australian Iron and Steel about limitation provisions, and the distinction between a condition which is the essence of a right, as opposed to a time limit which is a condition of a remedy, are relevant in determining the nature and effect of the time limit specified in section 51 of the DBC Act. The issue in this case is whether the time limit in s 51 of the DBC Act is annexed to the right as submitted by the builder, or whether, as the applicants argue, it is a condition of the remedy.

[28] The DBC Act provides for statutory warranties. It separately provides in s 51 for a proceeding for a breach of a warranty to be commenced within the 6 years and 6 months time limit. The statutory warranties provided for in the DBC Act are not extinguished upon the expiration of the time prescribed for commencing proceedings: the warranties themselves remain in place under the legislation. Since the warranties are unaffected by the expiration of the time limit, I am satisfied that the effect of section 51 is to bar resort to a remedy through proceedings, rather than extinguish the right to the warranties. Therefore, the time limit is a condition of the remedy.

[29] However, proceedings can not be commenced after that time, unless there is a mechanism for extending the time for the commencement of the 8 proceeding. I accept, as Justice Logan said, statutory construction rules suggest that if Parliament intended the time limitation to have substantive effect it would expressly state this. It has not done so. Further, enabling Acts may modify the provisions of the QCAT Act in which case the modifying provision would prevail. There is no modifying provision in the DBC Act which prohibits extension of the time limit fixed by section 51 pursuant to section 61 of the QCAT Act.

[30] Accordingly, I am satisfied that I may, if I consider it appropriate to exercise my discretion to do so, extend time for the start of a proceeding for a breach of warranty under the DBC Act.[34]

  1. [43]
    In Watkins v Queensland Building Services Authority the tribunal held:

[20] In my view section 61 of the QCAT Act may no more be used to escape the imperative “must not” in section 86(2) of the QBSAA than it may be used to bypass the mandatory exceptions to the general grant of jurisdiction in section 103 of the Retail Shop Leases Act 1994. In each case the negative provision is substantive, and defines the limits of jurisdiction. It is no mere procedure, subject to discretionary liberalisation.[35]

[25] The present question is not to be resolved by reference to authorities on extension of time limits in general statutes of limitation. Those limits are clearly procedural. If an opponent does not take the point, “the matter of the statutory bar does not arise for the consideration of the court”. It is then quite unnecessary to seek an extension of time. General limitation Acts bar access to curial remedies; they do not extinguish causes of action. Unlike subsection 86(2) of the QBSAA they “affect procedure, not substance”. … [36]

  1. [44]
    In Aurisch,[37] the tribunal referred to the decision in Ryan v Cornwall[38] and the finding that s 43A of the LAA made s 51 of the DBC Act a substantive provision and that as a result, the right was extinguished at the expiration of the limitation period. The tribunal held in Aurisch that s 43A of the LAA did not operate to make a limitation period in another statute (in that case s 51 of the DBC Act) a provision with substantive rather than procedural effect.
  2. [45]
    Section 43 of the LAA provides:

43A Characterisation of limitation laws

  1. (1)
     In this section—

limitation law means a law (including, but not limited to, this Act) that provides for the limitation or exclusion of any liability or the barring of a right of action for a claim by reference to the time when a proceeding on, or the arbitration of, the claim is started.

  1. (2)
     A limitation law of the State is to be regarded as part of the substantive law of the State.
  1. (3)
     This section applies to a cause of action that arose before the commencement of this section but does not apply to a proceeding started before the commencement.
  1. [46]
    In Reynolds Logan J found:

[43] Further, s 43A of the Limitation of Actions Act has no wider role to play than answering a characterisation question that arises in respect of a limitation period for choice of law purposes. So much is suggested by the heading of the section, which forms part of it: s 14(2)(a) Acts Interpretation Act 1954 (Qld). That impression is confirmed by regard to the explanatory notes circulated by the then Queensland Attorney-General in respect of the Bill which became the Choice of Law (Limitations Periods) Act 1996 (Qld), s 8 of which inserted s 43A into the Limitation of Actions Act. The title of that amending Act is itself instructive as to the purpose of s 43A. This aside, in the explanatory notes it is stated (p 1) that the reason for the amendment made by the Bill arises in the following way:

The High Court, in McKain v R W Miller & Company (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, decided that, according to the general rules as to choice of law, limitation periods are treated as governed by the law of the place where the proceedings are brought, regardless of where the cause of action arose. This may tend to encourage forum shopping to take advantage of the longest limitation periods.

The purpose of making the amendment is stated to be to discourage forum shopping. On further examination of the background to the amendment, it is responsive, though not fully responsive, for it is confined to cases where the lex causae is that of another State or Territory or New Zealand, rather than more generally, to a recommendation made by the Australian Law Reform Commission: ALRC Report No 58, Choice of Law at [10.33]. It is to be remembered that the amendment was enacted prior to the later judgment of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 in which it was decided that, for conflict of laws purposes, a statutory limitation period was to be treated as substantive, not procedural (at 544, 554, 571-574).[39]

  1. [47]
    In Commonwealth of Australia v Mewett, Dawson J, in considering the New South Wales analogue of s 43A of the LAA, stated:

It is also necessary to refer to s78 of the New South Wales Act which was inserted by s3 of the Limitation (Amendment) Act 1993 (NSW). S78 provides that a limitation law, which is defined to include a law barring a right of action as well as a law excluding liability, is to be regarded as part of the substantive law of the State. That section cannot, however, change the effect of a limitation law. That is to say, if the law merely bars the remedy and does not extinguish the right, a statute-barred cause of action continues to exist even though the law is regarded as part of the substantive law. The intention behind s78 appears to be that a limitation law of New South Wales which under the rules of private international law might otherwise not be applied in another place because it is procedural, should now be regarded as part of the substantive law and be applied in that other place.[40]

  1. [48]
    It is readily apparent from the Explanatory Notes to the Choice of Law (Limitation Periods) Bill 1996 (Qld) that the intent referred to by Dawson J in Mewett[41] resulted in the introduction of s 43A of the LAA.
  2. [49]
    It follows from the above that I respectfully agree with Aurisch[42] and Reynolds[43] as to the effect of s 43A of the LAA.
  3. [50]
    Section 51(1) of the DBC Act provides:
  1. (1)
     A proceeding for a breach of a warranty under this part for a regulated contract must be started within 6 years and 6 months after—
  1. (a)
     the subject work is finished; or
  1. (b)
     if the subject work is not finished—the stated completion date or period.
  1. [51]
    The express wording of s 51 does not seek to limit the jurisdiction of a court or tribunal to determine a dispute for breach of warranty. The provision is clearly a limitation statute, barring the remedy and not the right. It follows that the provision is procedural and not substantive in effect.
  2. [52]
    Section 7 of the LAA provides that the Act, other than s 11(2) (not relevant for present purposes) and s 43A, does not apply to an action for which a limitation period is fixed by another Act. In this case, the limitation period for a claim for breach of statutory warranty is fixed by the DBC Act. 
  3. [53]
    I have concluded that s 43A of the LAA does not operate to change the effect of the limitation law in Queensland from procedural to substantive. I have concluded that s 51 of the DBC Act is a provision that is procedural in effect. By s 61(1)(a) of the QCAT Act, the tribunal may extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act. Clearly, these proceedings were not commenced within the time prescribed under s 51 of the DBC Act. The tribunal may extend time to commence proceedings even if the relevant time limit has passed.[44] It is therefore open to the tribunal to consider whether the time for commencing the proceedings for breach of statutory warranty should be extended.
  4. [54]
    The tribunal cannot extend a time limit to commence proceedings if to do so would cause prejudice or detriment to a party or potential party to a proceeding, being not able to be remedied by an appropriate order for costs or damages.[45]
  5. [55]
    There is no application by Colin to extend the time limit for commencing a claim for damages for breach of statutory warranty. In light of these reasons, and what I have to say about the remaining ground relied upon by Ashley in seeking summary dismissal of the proceedings, Colin should be permitted to make submissions addressing the issue. Ashley should have the opportunity to do likewise. I will make orders accordingly.

Liability of Ashley

  1. [56]
    Ashley says that Colin entered into an agreement with Mr Black to undertake the rendering work. Colin says that he entered into the agreement with Ashley. I do not propose to address at length the competing evidence of, and submissions by, the parties. Suffice it to say that there are significant factual disputes in relation to the circumstances in which the rendering work was undertaken.
  2. [57]
    These are not matters that can be, or should be, determined in an application for summary dismissal. The parties should have the opportunity to file their statements of evidence and for that evidence to be tested at a hearing.

Conclusion

  1. [58]
    I have concluded that the claims by Colin for breach of contract and breach of duty are statute barred and cannot be maintained.
  2. [59]
    Colin should be given the opportunity to seek an extension of time to bring a claim for breach of statutory warranty. I order accordingly.

Footnotes

[1]  [2018] QSC 230, [2].

[2]  Respondent’s affidavit affirmed 22 August 2019.

[3]  Respondent’s submissions filed 15 October 2019.

[4]  Applicant’s submissions filed 7 January 2020.

[5]  Application for domestic building disputes filed 21 February 2019.

[6]  Technical Complaint Report by Bipin Chavda dated 26 July 2016.

[7]  Building Report by Karen Logan dated 15 November 2018.

[8]  Ibid 3.

[9]  Letter from QBCC dated 5 December 2018.

[10]Limitation of Actions Act 1974 (Qld) (‘LAA’) s 10(1)(a).

[11]  G E Dal Pont, Law of Limitation (LexisNexis Butterworks, 2016).

[12]  [2013] QCAT 535, [25].

[13]  LAA s 29, s 31, s 32, 32A.

[14]Cartledge v E Jopling & Sons Ltd [1963] AC 758; Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, 531 (Mason CJ, Gaudron, Dawson and McHugh JJ); Winnote Pty Ltd (in liq) v Page (2006) NSWLR 531, [40]–[41], [66].

[15]Hawkins v Clayton (1988) 164 CLR 539.

[16]  [1983] 2 AC 1.

[17]  [1993] 1 VR 27, 67.

[18]Pullen and Anor v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27.

[19]  [2015] 1 Qd R 476.

[20]Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2015] 1 Qd R 476, 504 [43] (emphasis added).

[21]  Ibid 505 [48]-[49] (emphasis added).

[22]Pullen and Anor v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27.

[23]Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2015] 1 Qd R 476, 497 [33].

[24]Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2015] 1 Qd R 476, 509 [64]-[66].

[25]Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2015] 1 Qd R 476.

[26]  Application for domestic building disputes filed 21 February 2019.

[27]Domestic Building Contracts Act 1991 (Qld) (‘DBC Act’) s 32(1)(a).

[28]  Ibid s 44.

[29]  Ibid s 51(1)(a).

[30]  LAA s 43A(2).

[31]  [2010] QCAT 212.

[32]  [2011] QCAT 245.

[33]  [2010] FCA 914.

[34]Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245, [25]-[30].

[35]  [2013] QCAT 535, [20].

[36]  Ibid [25] (emphasis added).

[37]Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245.

[38]  [2010] QCAT 212.

[39]Reynolds v Aluma-Lite Products Pty Ltd (No 2) [2010] FCA 914, [43].

[40]  (1997) 146 ALR 299, 314 (emphasis added).

[41]Commonwealth of Australia v Mewett (1997) 146 ALR 299.

[42]Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245.

[43]Reynolds v Aluma-Lite Products Pty Ltd (No 2) [2010] FCA 914.

[44]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61(2).

[45]  Ibid s 61(3).

Close

Editorial Notes

  • Published Case Name:

    Colin Leslie Ramm v Ashley David Ramm

  • Shortened Case Name:

    Ramm v Ramm

  • MNC:

    [2020] QCAT 102

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    08 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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