Boddy t/a Mal Boddy Builders v Xynias

[2010] QCAT 673

CITATION: Boddy t/a Mal Boddy Builders v Xynias [2010] QCAT 673

PARTIES:	Malcolm Boddy trading as Mal Boddy Builders
v
Mr Rick & Maria Xynias

APPLICATION NUMBER:   BDL006-09    

MATTER TYPE: Building matters

HEARING DATE:      15 December 2010

HEARD AT:     Brisbane

DECISION OF: Anne Forbes, Member

DELIVERED ON: 15 December 2010

DELIVERED AT:       Brisbane

ORDERS MADE: The parties to file their statements of evidence and set the matter down for hearing.

CATCHWORDS :  Three lengthy expert’s conclaves held – Applicant not providing sufficient evidence to assist experts – Applicant seeking to file an Amended Application not in a timely manner and without producing documents on which amendments based – Applicant given limited leave to file Amended Application provided that documentary evidence supplied to experts for preparing further joint report.

APPEARANCES and REPRESENTATION (if any):

APPLICANT  :	Malcolm Boddy trading as Mal Boddy Builders
RESPONDENT:	Mr Rick & Maria Xynias

REASONS FOR DECISION

1. This is a domestic building dispute that commenced in the Commercial and Consumer Tribunal on 30 November 2009.  There is a claim by the Applicant builder and a counterclaim by the house owners.  Issues include disputed claims of variations to the contract and or tender documents, defects and credits.  On 24 August 2010 I presided over an expert’s conclave.  Mr Roger Karrasch an expert retained by the Applicant and Mr Paul Haskard an expert retained by the Respondents, attended.  The conclave extended over 5 hours.  Following the conclave I prepared a 6 page list of omitted items.  I directed the Applicant through Mr Karrasch to produce certain missing invoices pertinent to the preparation of a joint report, to Mr Haskard.

2. The conclave was resumed on 15 September 2010.  The invoices were not produced.  After the conclave the experts prepared a joint report. Mr Karrasch on the instructions of his client added four new claims to the report.  Without evidence or a breakdown of the claims Mr Haskard was not able to express an opinion on these additions.  The conclave occupied an hour and a half.

3. At a later directions hearing Senior Member O’Callaghan directed the Applicant to file and serve any amended claim with the report of his expert on the new issues by 23 November 2010 and the Respondent to reply by 14 December 2010.  A further conclave was scheduled for 15 December 2010.

4. The Applicant filed his amended claim on 23 November 2010 and served it on the Respondent without any supplementary expert report from Mr Karrasch as ordered.  Consequently Mr Haskard was unable to address the amendments.

5. Surprisingly the Applicant did not provide a copy of his Amended Application to Mr Karrasch.  The Respondents’ solicitor sought directions that the further conclave be adjourned, but the Applicant prevailed upon the Senior Member to retain the scheduled date.

6. The third expert’s conclave was held on 15 December 2010 and Messrs Karrasch and Haskard attended for a further one and a half hours.

7. Several of the items in the Amended Application also appear at the end of the joint report.  They are Items 16, 17, 18 and 19.  But the Amended Application includes several other claims raised for the first time.

8. Insofar as the Applicant has raised new claims after two lengthy conclaves have been held and has chosen to produce important documents in a tardy fashion or not at all, he should not now be allowed to raise them.  This proceeding commenced more than a year ago.  It is the statutory duty of the Tribunal and the parties to determine claims with expedition.  I propose to strike out the Amended Application filed on 23 November  2010 and permit Mr Karrasch to provide a brief supplementary report addressing the items numbered 16,18 and 19 in the joint report and the Applicant to file an Amended Application limited to the introduction of items 16,18 and 19 provided that he also produces the relevant invoices.  Of course, Mr Haskard will have an opportunity to respond.

9. I shall direct the parties to file their statements of evidence and set the matter down for hearing.