Avenell v Oxygen Pools Pty Ltd & Anor - [2010] QCAT 284

CITATION:

Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284

PARTIES:	Frances Joy Avenell (Applicant)
v
Oxygen Pools Pty Ltd (First Respondent) and Andrew Wayne Ross (Second Respondent)

APPLICATION NUMBER: BD257-08

MATTER TYPE:

Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 21 June 2010

DELIVERED AT: Brisbane

ORDERS MADE: That the questions of law referred by order 14 April 2010 be answered:

(a) the CCT order of 30 March 2009 was a final order;
(b) the order may be capable of renewal under s 133 of the Queensland Civil and Administrative Tribunal Act 2009 but is in any event renewable by the operation of s 96 of the Commercial and Consumer 2003 and s 252(3) of the Queensland Civil and Administrative Tribunal Act 2009;
(c) in any event, QCAT has power to order and does order that the sum of $9,450 paid into the Trust Account of the Commercial and Consumer Tribunal by the applicant on 8 December 2008 be paid out to her.

CATCHWORDS :

JURISDICTION - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – REFERRAL OF QUESTION OF LAW TO PRESIDENT – APPLICATION FOR RENEWAL – ORDER UNDER COMMERCIAL AND CONSUMER TRIBUNAL ACT – where applicant commenced proceedings under the Commercial and Consumer Tribunal (CCT) – where parties signed a Mediation Agreement – where the CCT made order by consent – where Respondents incapable of meeting the terms of that order – where applicant applied to CCT to determine that order prior to commencement of the Queensland Civil and Administrative Tribunal (QCAT) – whether order of the CCT was final decision – whether order of CCT capable of renewal under QCAT Act – whether appropriate case for renewal

Commercial and Consumer Tribunal Act 2003 (repealed), s 96
Queensland Civil and Administrative Tribunal Act 2009, s 117, s 133, s 134(2)(b), s 244, s 245, s 252(1) and (3), s 256

Redprince Pty Ltd v Robert Johnson [2008] QCCTB 83

APPEARANCES and REPRESENTATION (if any):

Applicant

Respondent

REASONS FOR DECISION

In 2008 Ms Avenell began proceedings in the Commercial and Consumer Tribunal (CCT) for an order that the respondents properly complete a swimming pool they had agreed to construct at her home at Draper, and for associated relief. The claim was defended but, after an ADR process in the CCT, apparently settled in terms recorded in a signed Mediation Agreement dated 27 November 2008.

On 4 December 2008 the chairperson of the CCT made an order by consent which reflected the settlement terms – that Ms Avenell pay the sum of $9,450 into the CCT trust account by 3 December 2008, and that the respondents perform certain rectification work by 23 December 2008, whereupon the funds held in the trust account could be released to them.

The respondents allegedly failed to complete the work by the stipulated date and were later called back before the CCT in effect to show cause why their building licences should not be suspended…

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: [2010] QCAT 284
Decision Date: 21 June 2010

CaseChat Overview and Summary

The case of Avenell v Oxygen Pools Pty Ltd & Anor involved a dispute between Avenell and the respondents, Oxygen Pools Pty Ltd and another party, following the signing of a Mediation Agreement. The applicant had commenced proceedings under the Commercial and Consumer Tribunal (CCT), which resulted in a consent order. However, the respondents were unable to meet the terms of the order, prompting the applicant to seek a determination of the order prior to the commencement of proceedings in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issues revolved around the finality of the CCT order, the potential for its renewal under the Queensland Civil and Administrative Tribunal Act, and the appropriateness of the QCAT ordering the payment of a sum held in the Trust Account of the CCT.

The court considered whether the CCT order of 30 March 2009 constituted a final decision and whether it could be renewed under the QCAT Act. It was also necessary to determine whether the QCAT had the authority to order the payment of funds held in the CCT's Trust Account. The court examined the relevant statutory provisions and legal precedents to ascertain the applicability of sections 133, 96, and 252(3) of the Queensland Civil and Administrative Tribunal Act 2009, alongside relevant sections of the Commercial and Consumer Tribunal Act 2003. The court's analysis involved interpreting the legislative framework to ascertain the appropriate course of action regarding the enforcement of the CCT order and the management of the Trust Account funds.

In its decision, the court found that the CCT order of 30 March 2009 was indeed a final order. However, it was also capable of renewal under the provisions of the QCAT Act and the Commercial and Consumer Tribunal Act. The court further ruled that QCAT had the authority to order the payment of the sum held in the CCT's Trust Account to the applicant. This decision underscored the interplay between the two tribunals and the mechanisms available for enforcing consent orders, particularly in circumstances where one party is unable to fulfil the terms of the agreement.

The final orders of the court were that the questions of law referred by order 14 April 2010 be answered in the affirmative, with specific findings regarding the finality of the CCT order, its potential for renewal, and the appropriateness of QCAT ordering the payment of the sum held in the CCT's Trust Account. This decision clarified the legal framework governing the interaction between the CCT and QCAT and provided guidance on the enforcement of consent orders.

Orders

Orders of the court

That the questions of law referred by order 14 April 2010 be answered:

(a) the CCT order of 30 March 2009 was a final order;

(b) the order may be capable of renewal under s 133 of the Queensland Civil and Administrative Tribunal Act 2009 but is in any event renewable by the operation of s 96 of the Commercial and Consumer 2003 and s 252(3) of the Queensland Civil and Administrative Tribunal Act 2009;

(c) in any event, QCAT has power to order and does order that the sum of $9,450 paid into the Trust Account of the Commercial and Consumer Tribunal by the applicant on 8 December 2008 be paid out to her.

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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