Collier v Coast to Coast Earthmoving Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Collier v Coast to Coast Earthmoving Pty Ltd [2018] QCATA 129

PARTIES:

KATHERINE LOUISE COLLIER
(applicant/appellant)

v

COAST TO COAST EARTHMOVING PTY LTD

(respondent)

APPLICATION NO/S:

APL044-18

ORIGINATING APPLICATION NO/S:

MCDO 76 of 2017

MATTER TYPE:

Appeals

DELIVERED ON:

31 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – APPLICATION TO REOPEN – where the applicant seeks leave to appeal the tribunal’s decision refusing to reopen the proceeding – where the original application to recover costs under an earthworks contract was adjourned part-heard – where the applicant failed to attend the resumed hearing without a reasonable excuse and orders were made in her absence – where s 139(5) prohibits appeals from reopening decisions – where the application for leave to appeal is refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(4), (5)

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. This is an appeal from a decision of the tribunal refusing an application to reopen a proceeding.

2. The originating application, involving disputed charges under a contract for earthmoving and other works at the respondent’s property, was part heard on 6 September 2017 before being adjourned to 1 November 2017.

3. The applicant paid the quoted amount but advised the respondent that no further payments would be made because additional charges, amounting to over $10,000, were for works that were not explained or authorised. She claims that the respondent did not complete all works as per the original project requirements and the quote. Her central contention is that fill material to be used for a house pad was removed from the site without her authorisation leaving her to purchase additional material from a different contractor at additional cost.

4. The applicant was present at the 6 September 2017 hearing when the hearing was adjourned to 1 November 2017. Her address had not changed throughout the proceeding, and indeed was the address of the building site where the dispute arose. The relevant notice is recorded as having been sent on 6 September 2017 and there was no evidence of it being returned undelivered.

5. The tribunal decided the dispute against the applicant in default of appearance on 1 November 2017. 

6. On 28 November 2017 the applicant filed an application to reopen the proceeding on the basis that she had not received a Notice of Hearing confirming the date. If she had, she says she would have been there and defended her position.

7. The tribunal refused to reopen the proceeding on 1 February 2018, finding that the applicant had not offered a reasonable excuse for her non-attendance and it was not in the interests of justice (or aligned with the objects of the QCAT Act) to re-open the proceeding.

   Applicant’s submissions

8. The Form 39, filed on…