Davis v Gray (No. 2)

[2019] QCATA 12

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Davis v Gray (No. 2) [2019] QCATA 12

PARTIES:

VICKI DAVIS

(applicant/appellant)

v

JOHN NORMAN GRAY

(respondent)

APPLICATION NO/S:

APL133-17

ORIGINATING APPLICATION NO/S:

BDL067-16

MATTER TYPE:

Appeals

DELIVERED ON:

22 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member Howe

ORDERS:

1. The following  order  is  substituted  for  the decision of the Tribunal dated 31 March 2017 that was set aside by the Tribunal order dated 28 September 2018:

The application for a commercial building dispute is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES

– WHEN APPEAL LIES – where the applicant’s claim recast in law on appeal – where applicant now seeks to proceed with a claim different in nature from a building dispute as defined for Tribunal jurisdiction – whether Appeal Tribunal should remit for hearing of new claim – whether more appropriate for applicant to file a new claim

– whether appeal should be dismissed

REPRESENTATION:

Appellant:

S C Fisher instructed by Centric Law

Respondent:

Self-represented

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. The appeal against a decision of the Tribunal made in its building dispute jurisdiction was allowed by order made 28 September 2018. The Appeal Tribunal ordered that the Tribunal decision made on 31 March 2017 be set aside.

2. In the appeal, we determined that the claim Ms Davis sought to have decided by the Tribunal did not relate to overpayments under a building contract despite her commencing the matter as a building dispute in the Tribunal. Rather the issue was whether or not Mr Gray misappropriated payments paid to him intended to have been paid to his company Qualitybuild Pty Ltd for construction work being undertaken by that company for Ms Davis.

3. We concluded that with that issue finally clearly identified as a restitutionary claim of unjust enrichment (for the first time at the appeal stage) the matter of disposition of the appeal needed to be addressed with some care.

4. Whilst Ms Davis’ claim did not relate to the performance of building work, it did appear to fall within the jurisdiction exercised by the Tribunal in its Minor Civil Dispute (MCD) jurisdiction as a claim for a liquidated demand of money. That jurisdiction has a monetary limit however, limited to claims of not more than $25,000. Ms Davis’ Counsel confirmed on appeal that she was prepared to abandon any amount beyond the tribunal’s $25,000 limit and asked that the matter be remitted to the Tribunal in its MCD jurisdiction.

5. Our preliminary view was that it was appropriate to dismiss the application for a building dispute and allow Ms Davis to bring any fresh proceedings as she may consider appropriate. Before we did that however, we invited the parties to make submissions about that proposed course of action.

6. In large part, our concern was that the poorly articulated and unfocussed material presented in the building proceedings would once more overwhelm and obfuscate the much narrower restitutionary claim of unjust enrichment required to be determined. Hopefully, in making a fresh application Ms Davis would focus her claim and evidence on only the restitutionary claim. We suggested it was arguably fairer to Mr Gray if that occurred to ensure that Mr Gray understood the narrower claim and provide material that was responsive to it and only it.

7. Mr Gray’s response to the invitation to make submissions about disposition of the appeal has confirmed that course as the appropriate one. Mr Gray made no submissions about disposition of the appeal but reiterated and disputed, paragraph by paragraph with reference to the appeal decision, the poorly articulated and unfocussed material presented from outset in the course of the building dispute.

8. Given Mr Gray’s continued confusion about the extant issue for determination, we conclude it is not appropriate to do otherwise than dismiss the application for a commercial building dispute and allow Ms Davis to bring fresh proceedings in the

MCD jurisdiction of the Tribunal if she is minded to do so, or a Court of relevant jurisdiction.

1. If proceedings are brought in the MCD jurisdiction, all supporting material is intended to be filed with the initial application and all documents in response filed by the respondent with the Response document.1 Courts have their own procedures for filing relevant material.

1. If the matter is brought as a Minor Debt claim for a liquidated demand of money.