QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Contrast Constructions Pty Ltd v Allen & Anor [2020] QCAT 194
PARTIES: CONTRAST CONSTRUCTIONS PTY LTD (applicant)
v
REECE ALLEN
(first respondent)CHANTELL TAYLOR
(second respondent)
APPLICATION NO/S:
BDL219-19
MATTER TYPE:
Building matters
DELIVERED ON:
21 May 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
ORDERS: 1. The application for miscellaneous matters is refused.
2. Contrast Constructions Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Reece Allen and Chantell Taylor of:
(a) Contrast Constructions Pty Ltd’s statement of evidence, which must be signed, dated and page numbered;
(b) the signed, dated and page numbered statement from each witness to give evidence for Contrast Constructions Pty Ltd at the hearing including any experts; and
(c) any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:
4:00pm on 18 June 2020.
3. Reece Allen and Chantell Taylor must file two (2) copies in the Tribunal and give one (1) copy to Contrast Constructions Pty Ltd of:
(a) Reece Allen’s and Chantell Taylor’s statement of evidence, which must be signed, dated and page numbered;
(b) the signed, dated and page numbered statement from each witness to give evidence for Reece Allen and Chantell Taylor at the hearing including any experts; and
(c) any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:
4:00pm on 16 July 2020.
4. Reece Allen and Chantell Taylor must file in the Tribunal two (2) copies and give to Contrast Constructions Pty Ltd one (1) copy of a Schedule of defective and incomplete work (a Scott Schedule), by:
4:00pm on 16 July 2020.
5. Contrast Constructions Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Reece Allen and Chantell Taylor of Contrast Constructions Pty Ltd’s signed, dated and page numbered statements of evidence in reply, by:
4:00pm on 13 August 2020.
6. Contrast Constructions Pty Ltd must complete the Scott Schedule and file in the Tribunal two (2) copies and give to Reece Allen and Chantell Taylor one (1) copy of the completed Scott Schedule, by:
4:00pm on 13 August 2020.
7. Reece Allen and Chantell Taylor must file in the Tribunal two (2) copies and give to Contrast Constructions Pty Ltd one (1) copy of any statements of evidence in reply limited to the counter-application, by:
4:00pm on 27 August 2020.
8. The matter is listed for a Directions Hearing on a date and time to be advised.
CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SETTLEMENT OF DISPUTES – where respondents contend that the proceedings should be dismissed for non-compliance with dispute resolution processes provided for in contract – whether dispute resolution clause survived termination of the contract – power of tribunal to…
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- AGLC
- Contrast Constructions Pty Ltd v Allen [2020] QCAT 194
- Case
- [2020] QCAT 194
- Decision Date
CaseChat Overview and Summary
The tribunal considered the principles in WTE Co-Generation v RCR Energy Pty Ltd and concluded that Contrast Constructions had complied with section 77(2) of the Act before commencing the proceedings. The tribunal found that the dispute resolution clause was enforceable and that the proceedings should not be stayed as it was not in the interests of justice to do so. The tribunal also found that there was no utility in requiring the parties to comply with the contractual dispute resolution process.
The tribunal refused the respondents' application for miscellaneous matters and made directions for the matter to proceed in the usual manner. The tribunal ordered that Contrast Constructions file two copies in the tribunal and give one copy to the respondents of their statement of evidence, witness statements and any documents referred to in the evidence by 4:00pm on 18 June 2020. The respondents were ordered to file two copies in the tribunal and give one copy to Contrast Constructions of their statement of evidence, witness statements and any documents referred to in the evidence by 4:00pm on 16 July 2020. The respondents were also ordered to file in the tribunal two copies and give to Contrast Constructions one copy of a Schedule of defective and incomplete work by 4:00pm on 16 July 2020. Contrast Constructions was ordered to file two copies in the tribunal and give one copy to the respondents of their statements of evidence in reply by 4:00pm on 13 August 2020. Contrast Constructions was also ordered to complete the Scott Schedule and file in the tribunal two copies and give to the respondents one copy of the completed Scott Schedule by 4:00pm on 13 August 2020. The respondents were ordered to file in the tribunal two copies and give to Contrast Constructions one copy of any statements of evidence in reply limited to the counter-application by 4:00pm on 27 August 2020. The matter was listed for a Directions Hearing on a date and time to be advised.
Orders
Orders of the court
1. The application for miscellaneous matters is refused.
2. Contrast Constructions Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Reece Allen and Chantell Taylor of:
(a) Contrast Constructions Pty Ltd’s statement of evidence, which must be signed, dated and page numbered;
(b) the signed, dated and page numbered statement from each witness to give evidence for Contrast Constructions Pty Ltd at the hearing including any experts; and
(c) any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:
4:00pm on 18 June 2020.
3. Reece Allen and Chantell Taylor must file two (2) copies in the Tribunal and give one (1) copy to Contrast Constructions Pty Ltd of:
(a) Reece Allen’s and Chantell Taylor’s statement of evidence, which must be signed, dated and page numbered;
(b) the signed, dated and page numbered statement from each witness to give evidence for Reece Allen and Chantell Taylor at the hearing including any experts; and
(c) any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:
4:00pm on 16 July 2020.
4. Reece Allen and Chantell Taylor must file in the Tribunal two (2) copies and give to Contrast Constructions Pty Ltd one (1) copy of a Schedule of defective and incomplete work (a Scott Schedule), by:
4:00pm on 16 July 2020.
5. Contrast Constructions Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Reece Allen and Chantell Taylor of Contrast Constructions Pty Ltd’s signed, dated and page numbered statements of evidence in reply, by:
4:00pm on 13 August 2020.
6. Contrast Constructions Pty Ltd must complete the Scott Schedule and file in the Tribunal two (2) copies and give to Reece Allen and Chantell Taylor one (1) copy of the completed Scott Schedule, by:
4:00pm on 13 August 2020.
7. Reece Allen and Chantell Taylor must file in the Tribunal two (2) copies and give to Contrast Constructions Pty Ltd one (1) copy of any statements of evidence in reply limited to the counter-application, by:
4:00pm on 27 August 2020.
8. The matter is listed for a Directions Hearing on a date and time to be advised.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In WTE Co-Generation v RCR Energy Pty Ltd,[28] Vickery J of the Supreme Court of Victoria summarised the relevant principles in relation to contractual dispute resolution provisions expressed to be a pre-condition to litigation:[28][2013] VSC 314, [39].1. The general rule is that equity will not order specific performance of a dispute resolution clause, notwithstanding that it may satisfy the legal requirements necessary for the court to determine that the clause is enforceable. This is because supervision of performance pursuant to the clause would be untenable.2. The Court may, however, effectively achieve enforcement of a dispute resolution clause by default, by ordering that a proceeding commenced in respect of a dispute subject to the clause, be stayed or adjourned until such time as the process referred to in the clause, is completed. What is enforced by this means is not co-operation and consent of the parties but participation in a process from which consent might come. 3. A circumstance which will operate to preclude the ordering of a stay on this ground arises where the particular dispute resolution clause is determined to be unenforceable, as where for example, the clause is found to be uncertain.4. Dispute resolution clauses in contracts should be construed robustly to give them commercial effect. The modern approach to the construction of commercial agreements is generally to endeavour to uphold the bargain by eschewing a narrow or pedantic approach in favour of a commercially sensible construction, unless irremediable obscurity or a like fundamental flaw indicates that there is, in fact, no agreement.5. Honest business people who approach a dispute about an existing contract will often be able to settle it. If business people are prepared in the exercise of their commercial judgment to constrain themselves by reference to express words that are broad and general, but which nevertheless have sensible and ascribable meaning, the task of the court is to give effect to and not to impede such solemn express contractual provisions. Uncertainty of proof does not detract from there being a real obligation with real content. 6. A dispute resolution clause in a contract, consistently with public policy in promoting efficient dispute resolution, especially commercial dispute resolution, requires that, where possible, enforceable content be given to contractual dispute resolution clauses.7. The trend of recent authority is in favour of construing dispute resolution clauses where possible, in a way that will enable those clauses to work as the parties appear to have intended, and to be relatively slow to declare such provisions void either for uncertainty or as an attempt to oust the jurisdiction of the court. 8. The court does not need to see a set of rules set out in advance by which the agreement, if any, between the parties may in fact be achieved. The process need not be overly structured. However, the process from which consent might come must be sufficiently certain to be enforceable. A contract which leaves the process or model to be utilized for the dispute resolution ill defined, or the subject of further negotiation and agreement, will be uncertain and unenforceable. 9. An agreement to agree to another agreement may be incomplete if it lacks the essential terms of the future bargain.10. An agreement to negotiate, if viewed as an agreement to behave in a particular way, may be uncertain, but is not incomplete. The relevant question is whether the clause has certain content.11. An obligation to undertake discussions about a subject in an honest and genuine attempt to reach an identified result is not incomplete. (footnotes omitted) (emphasis added)