Cullen v Pro Modern Pty Ltd
[2018] QCAT 83
•27 March 2018
CITATION: | Cullen v Pro Modern Pty Ltd [2018] QCAT 83 |
PARTIES: | Stephen Cullen |
| v | |
| Pro Modern Pty Ltd (Respondent) | |
APPLICATION NUMBER: | BDL160-17 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
DELIVERED ON: | 27 March 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Pro Modern Pty Ltd pay Stephen Cullen the sum of $3,114.29 for claim plus filing fee of $326.80 within 7 days of the date hereof. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – JUDGMENT IN DEFAULT OF OTHER REQUIRED STEP – where respondent failed to file response despite direction of the tribunal to do that – where the failure continued despite a number of orders – where respondent failed to attend compulsory conference – where respondent failed to explain the failure to attend compulsory conference CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where plumbing work done – where failure to pay on invoices Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48(2)(b)(i) |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Cullen filed an application for domestic building dispute with the tribunal claiming against Pro Modern Pty Ltd the sum of $3,114.29 as monies owing to him trading as Plumbprofessor Plumbing Services for plumbing work done for Pro Modern.
The matter was listed for a directions hearing on 14 July 2017 and Mr Cullen was ordered to file an affidavit of service of the application on Pro Modern and Pro Modern to file a response to the application by 4 August 2017.
Mr Cullen filed an affidavit of service of the application on Pro Modern at its registered office, which deposed to service being effected on 27 July 2017.
The matter was listed for a compulsory conference on 5 September 2017 but Pro Modern failed to attend. Mr Cullen did.
The matter was relisted for another directions hearing on 4 October 2017. Pro Modern had still not filed a response by that date.
At a further directions hearing on 3 November 2017, no response having been filed, it was ordered that if Pro Modern failed to file an explanation as to why it failed to attend the compulsory conference and continued to fail to file a response by 17 November 2017, Mr Cullen would be entitled to a final decision.
Pro Modern failed to comply with the directions of the tribunal made
3 November 2017 and the tribunal ordered on 15 January 2018 that the matter of final judgment in favour of Mr Cullen be determined on the papers without an oral hearing and without further submissions required.
By s 48(2)(b)(i) of the QCAT Act, if a party fails to comply with a tribunal order without reasonable excuse the tribunal may, if that party is a respondent, make its final decision in the proceeding in the applicant’s favour.
Mr Cullen’s application claimed $3,114.29 for work done and goods provided to Pro Modern on the dates set out in invoices attached to the application. The work was plumbing work done for Pro Modern at
10 Cayman Drive, Clear Island Waters. Mr Cullen filed 5 invoices dated respectively 8 December 2016, 30 January 2017 and 1, 21 and 24 February 2017. He also filed a statement dated 27 June 2017, which acknowledged one minor payment made by Pro Modern of $43.37, which left the outstanding amount of $3,114.29 as claimed.
Mr Cullen also filed a statement by Mark Patterson dated 25 July 2017 in which Mr Patterson says he engaged Pro Modern in June 2016 to carry out renovations at his property at 30 Cayman Drive, Clear Island Waters. Mr Patterson said he was aware that Pro Modern had engaged Mr Cullen to do plumbing work at his property and in early 2017 Mr Patterson had become aware that Pro Modern had not been paying its contractors and suppliers. He does not say how he knew this. He referred to work done by Mr Cullen as work completed and he had no complaint about it.
On the basis of the material filed I am satisfied that Mr Cullen performed the plumbing work claimed to have been done for Pro Modern, the work was as described in the 5 invoices filed, the amounts claimed do not seem unreasonable in the circumstances, and Mr Cullen is therefore entitled to recover the sum claimed from Pro Modern.
In his application, Mr Cullen also asked for a “SPUR” (sic) debt recovery order”, but the tribunal has no power to make such an order.
Mr Cullen also claimed his filing fee in the sum of $315.70. The tribunal’s file shows the filing fee charged was in fact $326.80 and he is entitled to recover that actual amount paid. There are no other costs claimed.
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