Bruce v Sneesby
[2011] QCAT 392
•5 August 2011
| CITATION: | Bruce v Sneesby [2011] QCAT 392 |
| PARTIES: | Kim Bruce |
| v | |
| Lyndal Robert Patrick Sneesby |
| APPLICATION NUMBER: | REO021-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 5 August 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | Application for renewal of final decision – application out of time – extension of time granted – refusal to comply with order – application dismissed Queensland Civil and Administrative Tribunal Act 2009, ss 61, 88, 132, 133, 134 Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284 |
APPEARANCES and REPRESENTATION (if any)
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Background
On 29 September 2010 Ms Bruce applied to renew the Tribunal’s decision of 24 June 2010 (the Original Decision).
The Original Decision:
a)was an order by consent to effect a settlement of proceedings BD426-09.
b)ordered that by 29 July 2010 Mr Sneesby was to rectify certain defects identified in a specified Queensland Building Services Authority (QBSA) report. The defects were to be rectified to the satisfaction of the QBSA. Upon completion of the rectification work the parties were to arrange for the QBSA to carry out an inspection.
On 13 August 2010 the QBSA conducted an inspection and provided a report on 23 August 2010. The QBSA reported that none of the 7 items had been rectified.
Ms Bruce seeks an order that the Original Decision be set aside and in its place orders that:
a)Mr Sneesby pay the costs of other tradesmen to rectify the defects;
b)she be compensated for the amounts paid to the Tribunal;
c)she be compensated for the amounts paid for products required by Mr Sneesby when performing work in purported compliance with the Original Decision;
d)she be compensated for the leadlight window Mr Sneesby has not returned to her.
The reasons for seeking the orders are that:
a)none of the 7 items have been rectified to the QBSA’s satisfaction;
b)she has no confidence that Mr Sneesby will rectify the defects; and
c)the matter has been ongoing for some years.
Law
Section 133 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides that a party may apply for a renewal of the Tribunal’s final decision if it is not possible for it to be complied with or there are problems with interpreting, implementing or enforcing the tribunal’s final decision.
Rule 89 of Queensland Civil and Administrative Tribunal Rules 2009 (the Rules) provides that such an application for renewal must be made within 28 days after the party is given notice of the decision.
Section 134 of the QCAT Act provides that on an application for renewal the tribunal may make the same final decision it made when the proceeding was originally decided or any other decision that could have been made when the proceeding was originally decided.
Section 61 of the QCAT Act provides that the Tribunal may extend a time fixed for the start of a proceeding by the QCAT Act or extend a time limit fixed by the QCAT Act or the Rules. The Tribunal can not extend a time limit if to do so would cause prejudice.[1]
[1] Section 61(3) of the QCAT Act.
[10] Section 88 of the QCAT Act provides that an order giving effect to a settlement has the same effect as if it were a Tribunal order made after deciding the proceeding.
Discussion and Decision
[11] The Original Decision was made by consent and therefore the parties were given notice of the decision on 24 June 2010. Accordingly Ms Bruce’s application was not made within the time required by the Rules. However the application was brought within a relatively short time after the BSA report was provided.
[12] There is no evidence before the Tribunal of any prejudice that Mr Sneesby would suffer.
[13] I therefore extend time for the making of this application.
[14] Mr Sneesby disagrees with the BSA report. He submits variously that the rectification:
a)cannot be undertaken;
b)was not required because the items are not defects;
c)the defects have been rectified;
d)referred to in the Original Decision was varied by agreement by Ms Bruce at the hearing; or
e)referred to in the Original Decision was varied by agreement by Ms Bruce subsequently.
[15] The difficulty with Mr Sneesby’s response is that the Original Decision clearly sets out that certain “defects” were to be rectified and that the work was to be performed to the QBSA’s satisfaction.
[16] There was no condition that Mr Sneesby was required to agree with the QBSA’s view of what constituted appropriate rectification.
[17] If the Original Decision did not reflect what was ‘agreed’ at the hearing then Mr Sneesby ought not to have consented to it.
[18] Further, if as alleged Ms Bruce subsequently agreed to vary the work required then such agreement ought to have been reduced to writing, provided to the BSA and notified to the Tribunal.
[19] The Tribunal has granted applications for renewal in circumstances where an order that rectification work be undertaken was not complied with and could not be complied with because the first respondent/contractor had gone into liquidation and the second respondent did not hold an appropriate licence and therefore could not perform the work.[2]
[2] Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284.
[20] I am not satisfied that the fact circumstances in this case fall within the grounds for renewing the decision.[3]
[3] Sections 133(1)(a) and (b) QCAT Act.
[21] The fact circumstances are that Mr Sneesby is refusing to comply with the Original Decision.
[22] Ms Bruce has an entitlement to enforce the Original Decision in accordance with section 132 of the QCAT Act. The Tribunal has no enforcement powers.
[23] Ms Bruce’s application appears to be more in the nature of a claim for damages for breach by Mr Sneesby of the settlement agreement reached and recorded in the Original Decision. The Tribunal has no jurisdiction in relation to such a claim.
[24] Accordingly, the application for renewal is dismissed.
[25] If I am wrong and the fact circumstances fall within the grounds for renewing the decision it is necessary to consider what order could be made.
[26] Given that Mr Sneesby has not rectified any of the 7 items to the QBSA’s satisfaction there appears little utility in making the same final decision the Tribunal made originally.
[27] From a review of the recording of the hearing it is clear that the relationship between Ms Bruce and Mr Sneesby had long before the hearing broken down. Mr Cotterell, the Member who made the Original Decision, was reluctant to allow Mr Sneesby to return to the site to perform the work for that reason.
[28] The awarding of an amount of money to Ms Bruce for the cost to perform the work was a decision that could have been made when the proceeding was originally decided. In fact at the hearing Ms Bruce sought payment of amounts for rectification work to be carried out by others.
[29] Some evidence was lead at the hearing in the form of an unsigned contract with Mr Denis McDonald being for a total price of $25,932.75 for certain work at Ms Bruce’s property. The evidence is unclear as to whether the work set out in the unsigned contract was the same as the work as required by the Original Decision.
[30] Mr Mc Donald was not appropriately licensed to enter into such a contract and was not an impressive witness at the hearing. He gave evidence that he had been involved in the construction industry for approximately 50 years and stated that he did not build in accordance with the Building Code of Australia (BCA) as he built the way he built before the BCA was in place. He also gave evidence that suggested he engaged in a regular practice of licence lending with licensed builders. In most instances he could not recall specifics about Ms Bruce’s building.
[31] I find that there was no reliable evidence at the hearing upon which to make an order in favour of Ms Bruce that Ms Sneesby pay an amount to her in respect of rectification work.
[32] Ms Bruce has sought to introduce further evidence as to the costs of rectification. The difficulty for Ms Bruce is that this further evidence was not evidence at the hearing.
[33] For these reasons there is insufficient evidence to make the orders sought and therefore the application would also be dismissed.
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