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Ramm v Ramm (No. 2)[2020] QCAT 236

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ramm v Ramm (No. 2) [2020] QCAT 236

PARTIES:

colin leslie ramm

(applicant)

 

v

 

ashley david ramm

(respondent)

APPLICATION NO/S:

BDL058-19

MATTER TYPE:

Building matters

DELIVERED ON:

1 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The proceedings are dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where applicant sought extension of time to bring a claim for breach of statutory warranty under s 51(1)(a) of the Domestic Building Contracts Act 2000 (Qld) – where there was no regulated contract entered into between the parties – where the statutory warranties do not apply – where proceedings lack substance – where proceedings should be dismissed

Domestic Building Contracts Act 2000 (Qld), s 7(1)(a), s 8(1)(b), s 9(1), s 30, s 41(1), s 51(1)(a), s 92

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 61(1)(a)

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

Ramm v Ramm [2020] QCAT 102

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

  1. [1]
    I previously gave reasons as to why Mr Colin Ramm’s claims against Mr Ashley Ramm for breach of contract or for negligence were statute barred and could not be pursued.[1]
  2. [2]
    Directions were made for Colin to file submissions addressing whether the tribunal should extend the time for Colin to make a claim for breach of statutory warranty pursuant to s 51(1)(a) of the Domestic Building Contracts Act 2000 (Qld) (‘DBC Act’). Ashley was directed to file submissions in response. The parties have complied with the directions. The application to extend time falls for determination.[2]
  3. [3]
    In my earlier decision I referred to the basis upon which the tribunal may extend time for a person to bring a claim for breach of statutory warranty.[3] It is unnecessary for me to repeat what I said previously.

Extensions of time under s 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – relevant principles

  1. [4]
    The relevant considerations in respect of extending time pursuant to s 61(1) of the QCAT Act were expressed thus in Harper Property Builders Pty Ltd v Queensland Building and Construction Commission:[4]

[25] The cases cited by the parties touching upon the proper exercise of a discretion to extend time include Baguley v Lifestyle homes Mackay Pty Ltd; Braunberger v Assistant Commissioner Les Hopkins; Crime and Misconduct Commission v Chapman; and Cardillo v Queensland Building Services Authority.

[26] Whilst recognising that the discretion to extend time is unfettered (except to the extent that s 61 of the QCAT Act precludes such an extension when it would cause prejudice or detriment, that could not be remedied by an appropriate order for costs or damages), the following matters have been recognised in the above cases as particularly relevant considerations in such exercises:

  1. (a)
    the length of the delay;
  1. (b)
    the adequacy of explanation for the delay;
  1. (c)
    the merits of the proceeding sought to be litigated;
  1. (d)
    prejudice to others; and
  1. (e)
    the interests of justice (sometimes expressed as ‘general considerations of fairness’).

[27] In the context of extending time for an appeal or review, commonly the central question addressed is whether there is any reasonable prospect of success in the proposed appeal. (footnotes omitted)

Consideration

  1. [5]
    By s 41(1) of the DBC Act, the warranties mentioned in Division 2 of the Act are part of every regulated contract.
  2. [6]
    A regulated contract is a domestic building contract for which the contract price is more that the regulated amount.[5] A domestic building contract is a contract to carry out domestic building work.[6] Domestic building work includes the renovation, alteration, extension, improvement or repair of a home.[7]
  3. [7]
    A regulated contract has effect only if it is signed by the building contractor and the building owner.[8] The DBC Act provides that unless the contrary intention appears in the Act, a failure by a building contractor to comply with a requirement under the Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable.[9]
  4. [8]
    I am satisfied that, had the contract between Colin and Ashley been in writing and signed by the parties, any such contract would be a domestic building contract and therefore a regulated contract.
  5. [9]
    It is uncontentious that there was no signed contract entered into by Colin and Ashley in respect of the building works. Section 30 of the DBC Act is an expression of the contrary intention as referred to in s 92. By operation of s 30 of the DBC Act any agreement between the parties is of no effect. Where an agreement is of no effect it is void. It follows that the agreement between the parties was not a regulated contract and therefore the warranties mentioned in Division 2 of the DBC Act are not part of the agreement. There is therefore no basis upon which Colin may claim in respect of an asserted breach of one or more of the relevant statutory warranties.
  6. [10]
    Unfortunately neither party identified in their submissions the consequences of s 30 of the DBC Act in the present circumstances and Colin’s entitlement to bring a claim for breach of statutory warranty. They each had ample opportunity to do so. The application of s 30 of the DBC Act is so central to the determination of the issue that it should have been apparent to the parties that they were required to address whether there was in fact a regulated contract between the parties.

Conclusion

  1. [11]
    Colin has no viable cause of action against Ashley. He cannot claim for breach of contract, or in negligence or for breach of a statutory warranty. His claim is without any prospects of success. The tribunal may, where a proceeding lacks substance, is frivolous, vexatious or misconceived or is otherwise an abuse of process, dismiss the proceeding.[10] The proceedings by Colin lack substance and must be dismissed. I order accordingly.

Footnotes

[1] Ramm v Ramm [2020] QCAT 102.

[2] Application to extend time filed 22 April 2020.

[3] Ibid, [37]-[55].

[4] [2018] QCATA 70.

[5] DBC Act, s 9(1).

[6] Ibid, s 7(1)(a).

[7] Ibid, s 8(1)(b).

[8] Ibid, s 30.

[9] Ibid, s 92.

[10] QCAT Act, s 47.

Close

Editorial Notes

  • Published Case Name:

    Ramm v Ramm (No. 2)

  • Shortened Case Name:

    Ramm v Ramm (No. 2)

  • MNC:

    [2020] QCAT 236

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    01 Jul 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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