ADG Engineers (Aust) Pty Ltd v Timuss - [2015] QCATA 119

CITATION:

ADG Engineers (Aust) Pty Ltd & Anor v Timuss [2015] QCATA 119

PARTIES:	ADG Engineers (Aust) Pty Ltd Jones Lang LaSalle (Qld) Pty Ltd (Applicants/Appellants)
v
Gary Timuss (Respondent)

APPLICATION NUMBER:

APL163 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

11 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed

3. The decision of 13 March 2015 is set aside.

4. ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in support of their application by 25 August 2015

5. Gary Timuss shall file and serve any submissions in response by 9 September 2015.

6. ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in reply by 22 September 2015.

7. The application will be determined on the papers and without an oral hearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – APPLICATION IN A PROCEEDING – where application to strike out – where no submissions with application – where tribunal did not call for submissions – where application dismissed - whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 121

Pickering v McArthur [2005] QCA 294
Chandra v Queensland Building and Construction Commission [2014] QCA 335

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

This is a case where the tribunal’s zeal for an informal and quick decision[1] ran headlong into the parties’ desire to follow a procedural path that is more commonly found in a court. The result, sadly, is justice delayed.
[1]QCAT Act s 3(b).
Gary Timuss owns a unit in Top of the Mark CTS 11751. In 2012, the body corporate engaged Jones Lang LaSalle (Qld) Pty Ltd (JLL) to supervise fire rectification work in the complex at a cost of over $15 million. The scope of works between the body corporate and JLL was based on advice from ADG Engineers (Aust) Pty Ltd.
As part of that scope of works, four detectors were installed in Mr Timuss’ unit. The wiring to these detectors was housed in conduit, visible to occupants of the unit. The removal of the old detectors left patches in the ceiling.
Mr Timuss found the modifications unsightly. He found out that the work could have been done more aesthetically; the wiring could have been concealed in the ceiling space and the contractor could have installed a multi-criteria detector. Mr Timuss had the work redone to his liking and at his expense. He then claimed those costs – $6,484.50 plus costs - from JLL and ADG.
The tribunal listed the dispute for mediation on 17 March 2015. On 9 March 2015, JLL and ADG filed an application to strike out Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCATA 119
Decision Date: 11 August 2015

CaseChat Overview and Summary

ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT) that dismissed their application to strike out a proceeding brought by Gary Timuss. The proceeding arose from a dispute over the assessment of damages for delay in the construction of a shopping centre. The applicants argued that Timuss's proceeding was statute-barred and sought to have it struck out. QCAT dismissed the application on the basis that the applicants had not provided submissions with the application and that it did not call for submissions.

The legal issues before the court were whether the tribunal erred in dismissing the application to strike out and whether the applicants had grounds for leave to appeal. The applicants argued that the tribunal should have called for submissions before dismissing the application and that the dismissal was an error of law. They submitted that they had made a substantial case for leave to appeal because the tribunal had failed to consider relevant submissions and had erred in law.

The court found that the tribunal had indeed erred in dismissing the application without calling for submissions, as the applicants had made out a prima facie case for the application to be struck out. The court also found that the applicants had established grounds for leave to appeal, as the tribunal's failure to call for submissions was an error of law that had a significant impact on the outcome of the proceeding. The court granted leave to appeal and allowed the appeal, setting aside the tribunal's decision. The court ordered that the applicants file and serve any submissions in support of their application by a specified date, that Timuss file and serve any submissions in response by a later date, and that the applicants file and serve any submissions in reply by a final date. The court further ordered that the application would be determined on the papers and without an oral hearing.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed

3. The decision of 13 March 2015 is set aside.

4. ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in support of their application by 25 August 2015

5. Gary Timuss shall file and serve any submissions in response by 9 September 2015.

6. ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in reply by 22 September 2015.

7. The application will be determined on the papers and without an oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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