Dreamstarter Pty Ltd v Lyons

CITATION: Dreamstarter Pty Ltd v Lyons [2012] QCAT 65

PARTIES:	Dreamstarter Pty Ltd t/as Protec Builders
v
Mr Andrew Lyons

APPLICATION NUMBER:   BDL222-10

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 15 February 2012

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Dreamstarter Pty Ltd has leave to withdraw its claim.

2.    Mr Lyons’ application to strike out or dismiss the application of Dreamstarter Pty Ltd is dismissed.

3.    Mr Lyons’ application for security for costs is dismissed.

4.    Dreamstarter Pty Ltd shall pay Mr Lyons’ costs of and incidental to his application for security for costs on a standard basis as agreed, or failing agreement, as assessed by an assessor nominated by Dreamstarter Pty Ltd.

5.    Dreamstarter Pty Ltd shall pay Mr Lyons’ costs as assessed or agreed within 14 days of such agreement or assessment.

CATCHWORDS:

PROCEDURE – leave to withdraw – where application for leave to withdraw – where application resisted

PROCEDURE – application to strike out – whether claim “hopeless”

PROCEDURE – security for costs – where leave to withdraw claim – whether any utility in application for security for costs

PROCEDURE – costs – whether respondent entitled to costs of proceeding

Queensland Civil and Administrative Tribunal Act2009, ss 46(2), 47, 49, 102, 107
Queensland Civil and Administrative Tribunal Rules 2009, r 86

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175
Scottish Benefit Society v Chorley (1884) QBD 872
Tamawood Ltd v Paans & Anor [2004] QDC 427
Juju Club Pty Ltd v Cromwell Group [2011] QCATA 308

Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Dreamstarter Pty Ltd has applied for the tribunal’s leave to withdraw its claim.  Mr Lyons opposes the application and, in the alternative, asks the tribunal to: declare that he has validly terminated the building contract with Dreamstarter; dismiss the application; and order that Dreamstarter pay his costs on an indemnity basis fixed at $122,515.90.

2. My Lyons says that, if the tribunal allows Dreamstarter to withdraw its application, it will be able to seek the tribunal’s leave to bring the claim in the future.  As these proceedings have been on foot for 18 months, Mr Lyons asserts that it would not be just to allow Dreamstarter to raise the issue again.  He referred the tribunal to the principles in Aon Risk Services Australia Limited v Australian National University[1].

   [1] [2009] 239 CLR 175.

3. Section 46(2) of the Queensland Civil and Administrative Tribunal Act2009 provides that where an application has been withdrawn, that party cannot make a further application relating to the same facts or circumstances without the leave of the tribunal.

4. Even though the former Commercial and Consumer Tribunal had an equivalent provision[2], there are…