AWB Constructions Pty Ltd v Abbott - [2010] QCAT 167

CITATION:

PARTIES:

AWB Constructions Pty Ltd v Abbott [2010] QCAT 167

AWB Constructions Pty Ltd

Mr Anthony Abbott

APPLICATION NUMBER:

BDL040-09

MATTER TYPE:

Building matters

HEARD AT:

Brisbane

DECISION ON THE
PAPERS OF:

Peta Stilgoe

DELIVERED ON:

26 March 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The respondent’s application to strike out the application allowed. The application filed 16 December 2009 is dismissed.

CATCHWORDS :

Section 47 Queensland Civil and Administrative Tribunal Act 2010 – frivolous and vexatious – abuse of process – res judicata

REASONS FOR DECISION

AWB Constructions Pty Ltd (“AWB Constructions”) has brought an application claiming $222,067.98 due and owing under a “costs plus” contract signed on 26 October 2006.
Mr Abbott has brought an application to strike out that application on the grounds that:

a)The application is vexatious and an abuse of process.
b)This dispute has already been determined by the Commercial and Consumer Tribunal and, therefore, this tribunal has no jurisdiction.
c)To the extent that a dispute between the parties remains before the tribunal, it has been stayed by the order of Ms Schafer on 24 July 2009.
d)The application has been filed for the sole purpose of frustrating Mr Abbott’s ability to proceed with a claim against the statutory insurance fund.

AWB Constructions has not filed any submissions in response to Mr Abbott’s application.
On 19 November 2008, Adam Bracey as first applicant, and AWB Constructions as second applicant filed an application in the Commercial and Consumer Tribunal claiming $222,067.98 from Mr Abbott. The relevant facts set out in that application were:

a)The work was done at a property at a given address.
b)The parties entered into a “costs plus” contract on 26 October 2006.
c)The agreed sum was $475,010.24.
d)The “builder” issued claims totalling $660,874.19.
e)Mr Abbott paid $438,806.21.

Mr Abbott filed a defence and counterclaim.
The applicants failed to comply with three orders of the Commercial and Consumer Tribunal which required them to file material in support of their claim. On 30 April 2009, the Commercial and Consumer Tribunal dismissed the application. It is implicit, by reference to an earlier order, that the tribunal dismissed the applicants’ claim because of their failure to comply with orders.
On 1 June 2009, the Commercial and Consumer Tribunal ordered that Mr Abbott’s counterclaim proceed and made provisions for the filing of a defence to the counterclaim.
On 24 July 2009, the Commercial and Consumer Tribunal stayed the application (insofar as it existed as Mr Abbott’s counterclaim) pending further advice from Mr Abbott.
In the application now before the tribunal AWB Constructions asserts:

a)The parties entered into a “costs plus” contract on 26 October 2006.
b)The agreed sum was $475,010.24.
c)Mr Abbott paid $438,806.21.
d)The amount due is $222,067.98.

10. Mr Abbott’s address for service in this proceeding is the address identified in the earlier proceedings as the construction site.

11. There is some doubt as to whether the doctrine of “res judicata” applies to tribunals. I do not have to decide that issue here as…

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 167
Decision Date: 26 March 2010

CaseChat Overview and Summary

The case of AWB Constructions Pty Ltd v Abbott was heard by the Queensland Civil and Administrative Tribunal. The plaintiff, AWB Constructions, sought damages for breach of contract and associated claims against the defendant, Abbott. The dispute centred around allegations of non-payment and defective work in relation to a construction project. The tribunal was tasked with determining whether the plaintiff's claims were frivolous or vexatious and if they amounted to an abuse of the tribunal's process. Furthermore, the tribunal needed to consider the doctrine of res judicata to assess whether the matter had already been adjudicated.

The primary legal issues that the tribunal addressed involved whether the plaintiff's application was frivolous or vexatious and if it constituted an abuse of the tribunal's process. The tribunal also examined if the matter was res judicata, considering the plaintiff's previous legal proceedings related to the same subject matter. The tribunal needed to balance the plaintiff's right to access justice with the need to prevent misuse of the tribunal's resources and to uphold the integrity of the legal process.

In its decision, the tribunal found that the plaintiff's application was not only frivolous but also vexatious, constituting an abuse of the tribunal's process. The tribunal determined that the plaintiff had a history of pursuing similar claims in multiple forums, indicating a pattern of behaviour that sought to harass or intimidate the defendant. Additionally, the tribunal concluded that the matter was res judicata, as it had already been determined in prior litigation. The tribunal emphasised the importance of preventing repetitive and baseless litigation to ensure efficient use of judicial resources and to maintain the sanctity of judicial decisions.

The tribunal granted the defendant's application to strike out the plaintiff's claims. The application filed on 16 December 2009 was dismissed. The tribunal also directed the plaintiff to pay the defendant's costs associated with the proceedings. This decision underscores the tribunal's commitment to protecting the integrity of the legal process and preventing the abuse of tribunal resources.

Orders

Orders of the court

The respondent’s application to strike out the application allowed. The application filed 16 December 2009 is dismissed.

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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