Evans Development Pty Ltd v Artiz Villa Investments Pty Ltd

[2010] QCAT 63

CITATION:Evans Development Pty Ltd v Artiz Villa Investments Pty Ltd [2010] QCAT 63

PARTIES:   Evans Development Pty Ltd

v

Artiz Villa Investments Pty Ltd

APPLICATION NUMBER:            BDL 003-10

MATTER TYPE:   Building matters

HEARING DATE:   26 February 2010

HEARD AT:   Brisbane

DECISION OF:   Kerrie O'Callaghan   Senior Member

DELIVERED ON:   26 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application for interim order dismissed

CATCHWORDS:  Section 58 Queensland Civil and
  Administrative Tribunal Act 2009 -  interim   orders

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers

REASONS FOR DECISION

Introduction

The applicant filed a Domestic Building Dispute application on 24 December 2009 seeking payment of an amount of $252,230.64 alleged to be owing by the respondent pursuant to a building contract entered into between the parties.

1. The respondent has defended the claim and sought orders that the claim be dismissed or alternatively reduced by an amount of $121,844.68.

1. On the 15 February 2010 the applicant filed an application for an interim order pursuant to section 58 of the Queensland Civil and Administration Tribunal Act. 

The interim orders sought were:

a.The Respondents pay the undisputed amount of $130,385.83 to the Applicant within 48 hours of the order.

b.The Respondents pay the full disputed amount as at the date of the Directions Hearing to the QCAT or Master Builders Trust Account prior to the Tribunal hearing.

c.The Respondents explain in detail all their disputes, so that we may have an opportunity to resolve them before the Tribunal hearing.

d.Mr Horace Soegaard and Ms Chrissie Micale be present at the Tribunal hearing.

1. The Respondent lodged submissions opposing the Application.

4. On 26 February 2010 I made an order dismissing the application for interim orders.

5. At the directions hearing on 1 March 2010, the Applicant requested that reasons be given for the decision. 

The Legislation

6. Section 58 if the Act relevantly provides:
1. Before making a final decision in a proceeding, the Tribunal may make an interim order it considers appropriate in the interests of justice, including, for example:

i.To protect a party’s position for the duration of a proceeding;

ii.To require or permit something to be done to secure the effectiveness of the exercise of the Tribunal’s jurisdiction for the proceedings.

7. In effect the applicant (in paragraph 1 of the application) is seeking a summary determination of their claim.  That is they are suggesting the Respondent’s have no defence to the claim and the monies should be paid.  The Respondent, in his submissions outlines reasons why the money has not been paid.  The purpose of an interim order is not to determine the substantive claim.  Its purpose is usually to maintain the status quo of the parties on a temporary basis until the matter is finally determined, for example protecting the party’s interests, until the proceeding is determined.  In this case there is no evidence that the interests of justice require an interim order before the application can be determined on its merits.

8. The applicant has not for example suggested there is a risk that, the respondent is dissipating funds to prevent satisfying an order in the event of applicant is successful.  If that were the case, there may be some basis of granting interim orders.

9. Likewise the orders sought with regard to the provision of particulars and the presence or otherwise of persons as the hearing, are not matters that are appropriate for interim orders under section 58.

10. The application has been set down for a compulsory conference.  At this conference the matters the subject of this application for an interim order will be canvassed and if not resolved appropriate orders will be made.