Clarke v Cascade Pools (Qld) Pty Ltd

[2010] QCAT 323

CITATION:

PARTIES:

Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323

Ms Katherine Clarke aka Marianne Morel

v

Cascade Pools (Qld) Pty Ltd

APPLICATION NUMBER:   BD382-09

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 6 July 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

The proceeding records the applicant as both Katherine Clarke and Marianne Morel. Applicant’s claim is dismissed. The applicant pays the respondent $3,081.57 within 60 days of order.

CATCHWORDS :  Swimming pool contract – exercise of discretion to consider late submissions where guillotine order – where decision on the papers because applicant unable to attend hearing – where no evidence of quantum – s61 QCAT Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. By contract dated 15 August 2007, Ms Clarke engaged Cascade Pools (Qld) Pty Ltd (“Cascade”) to construct a pool. On either party’s account, it was not a happy experience. Ms Clarke claims payment of money owing, relief from payment and damages for breach of contract. Cascade claims money due and owing pursuant to the contract.

Preliminary comments

1. This proceeding was brought in the name of Katherine Clarke. Cascade makes the point that much of the correspondence from the applicant is in the name of Marianne Morel. As Ms Clarke has pointed out, she is entitled to call herself whatever name suits her. The proviso is, however, that no person can adopt another name for a dishonest purpose. To avoid doubt, I find that Katherine Clarke is the same person as Marianne Morel, and that correspondence to Cascade from Marianne Morel is, in fact, correspondence from Ms Clarke. I also order, therefore, that this proceeding record both names.

2. The Queensland Civil and Administrative Tribunal Act (“QCAT Act”) intends that parties conduct their own proceedings in this tribunal. The Act also intends that proceedings in this tribunal are to be informal and that the tribunal is not bound by the rules of evidence. Further, the QCAT Act makes it clear that the tribunal has an inquisitorial function. For these reasons, no member expects a self-represented party to present a case in the same way as would be expected from a member of the legal profession. There are, however, limits. In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of fact where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.

3. In the many documents filed in this proceeding, neither party has provided the tribunal with a narrative of what actually occurred. Ms Clarke’s application filed 11 August 2009 is a series of dislocated and unreferenced dot points. It has…