Dream Modular Homes Pty Ltd v Horseman - [2025] QCAT 202

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DREAM MODULAR HOMES PTY LTD V HORSEMAN & ANOR [2025] QCAT 202

PARTIES:

DREAM MODULAR HOMES PTY LTD

(applicant)

v

STEPHEN LODGE HORSEMAN

(respondent)

ROSEMARY ANN FITZGERALD

(respondent)

APPLICATION NO/S:

BDL296-24

MATTER TYPE:

Building matters

DELIVERED ON:

11 April 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The Application for miscellaneous matters filed 28 January 2025 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – Where respondents allege applicants failed to file statement of evidence and response to counter-application in accordance with directions – where respondents allege disadvantage – whether respondents entitled to final decision on the counter-application pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where explanation for delay – where delay not great – where parties have elected to adopt quasi-pleadings – where delay in filing statements of evidence not as significant in circumstances where quasi-pleadings adopted – where respondents seek relief pursuant to Australian Consumer Law beyond jurisdiction of the Tribunal

Fair Trading Act 1989 (Qld), s 50(1)

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 47, s 48

Mills v Ethell [2024] QCATA 67

Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

On 11 April 2025 I refused an application by the respondents for a decision by default on the respondents’ counter-application. These are my reasons.
The applicant undertook domestic building work for the respondents. The applicant’s claim is for the recovery of money it says is owing by the respondents for the practical completion stage of the works. The claim is framed in the alternative as one for a quantum meruit.
The respondents say that the works have not reached practical completion and that the applicant has no entitlement to the amount claimed. The respondents say that they are entitled to claim as a set off an amount for loss of rent occasioned as a result of the delay by the applicant in bringing the works to practical completion. In the alternative, the respondents say that they are entitled to set off against the applicant’s claim an amount for late completion damages. The respondents also counter-claim the amounts claimed by way of set-off in addition to which they claim damages for the applicant’s breach of s 60 of the Australian Consumer Law (‘ACL’).
The relevant chronology of events in the proceeding follows:

Date

Event

21.08.24

Application filed by the applicant

10.09.24

Directions made by the Tribunal for the filing of a response by the respondent and statements of evidence by the parties

11.10.24

Response and counter-application filed by the respondents

29.10.24

Directions made by the Tribunal for the filing of a response by the applicant to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCAT 202
Decision Date: 11 April 2025

CaseChat Overview and Summary

Dream Modular Homes Pty Ltd (the applicant) brought an application against Horseman (the respondent) concerning civil proceedings in the Queensland Civil and Administrative Tribunal. The applicant alleged that the respondent failed to file a statement of evidence and response to a counter-application in accordance with directions. The respondent claimed that this failure resulted in a disadvantage and sought a final decision on the counter-application under section 48 of the Queensland Civil and Administrative Tribunal Act 2009. The applicant provided an explanation for the delay, which was not considered significant, especially given the parties' decision to adopt quasi-pleadings. The respondent also sought relief under the Australian Consumer Law, which was beyond the Tribunal's jurisdiction.

The legal issues that the court had to decide included whether the respondent was entitled to a final decision on the counter-application under section 48, the significance of the delay in filing the statements of evidence, and the appropriateness of the relief sought under the Australian Consumer Law. The court considered the explanation for the delay and noted that the parties had chosen to adopt quasi-pleadings, which somewhat mitigated the impact of the delay. Additionally, the court had to determine whether the relief sought by the respondent under the Australian Consumer Law fell within the Tribunal's jurisdiction.

The court found that the respondent was not entitled to a final decision on the counter-application under section 48, as the delay was not significant and the adoption of quasi-pleadings lessened the importance of the late filings. The court also ruled that the relief sought by the respondent under the Australian Consumer Law was beyond the Tribunal's jurisdiction. Consequently, the application for miscellaneous matters filed by the applicant on 28 January 2025 was refused.

Orders

Orders of the court

The Application for miscellaneous matters filed 28 January 2025 is refused.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Date	Event
21.08.24	Application filed by the applicant
10.09.24	Directions made by the Tribunal for the filing of a response by the respondent and statements of evidence by the parties
11.10.24	Response and counter-application filed by the respondents
29.10.24	Directions made by the Tribunal for the filing of a response by the applicant to the…