F.K. Gardner & Sons Pty Ltd v Grant - [2010] QCAT 585

CITATION:		F.K. Gardner & Sons Pty Ltd v Grant [2010] QCAT 585
PARTIES:	F.K. Gardner & Sons Pty Ltd
v
Mr & Mrs Robert & Lorraine Grant

APPLICATION NUMBER:

BD465-09

MATTER TYPE:

Building matters

HEARING DATE:

Decision on the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe

DELIVERED ON:

11 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for variation of the directions of 21 October 2010 is refused.

CATCHWORDS :

DIRECTIONS – case management – refusal of application to amend directions - where multiple applications to amend directions – where proceedings is not advancing to resolution

Queensland Civil and Administrative Tribunal Act ss 3(b), 4(b)(c), 28(d), 29

Aon Risk Services Australia Limited v Australian National University cited

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 (“QCAT Act”)

REASONS FOR DECISION

It is necessary to set out the history of this proceeding:

a)F.K. Gardner & Sons Pty Ltd (“the builder”) filed an application in the Commercial and Consumer Tribunal (“CCT”) on 28 October 2009. It claimed $378,993.76 for work that commenced in 2002 and was completed in 2005.
b)Mr and Mrs Grant (“Grant”) filed a defence on 16 November 2009. Unsurprisingly, they had a counterclaim. What may be a little surprising is the amount of the counterclaim: - $2,202,849.80.
c)On 18 November 2009, the CCT made directions for the filing of statements of evidence.
d)On 24 November 2009, the builder, through its lawyers, Carter Newell, asked Grant, through their lawyers McCullough Robertson, for access to the premises. That letter was the first in an increasingly verbose and vitriolic exchange between the two firms which continues to this day.
e)On 21 December 2009, QCAT varied the CCT directions.
f)On 15 February 2010, the President listed the proceeding for a compulsory conference on 15 April 2010. On 8 April 2010 the compulsory conference was vacated and Grant were ordered to deliver a list of documents to be relied upon in support of their counterclaim.
g)The compulsory conference took place in 8 June 2010. As a result of that conference, directions were made giving the parties leave to amend their “pleadings”. The Member directed that the builder, its witnesses and experts be entitled to inspect the premises on a date to be agreed but by 9 September 2010.
h)Those directions were varied on 30 June 2010, 9 August 2010, 20 August 2010 and 21 October 2010.

On each occasion, the variation to directions was at the request of one or other of the parties because of disputes about the adequacy of the pleadings or access to the subject dwelling. The directions of 21 October 2010 were designed to overcome both of these problems.
On 5 November 2010, there was a further request from Grant to vary the directions. The reasons for the request were:

a)Grant (or their lawyers) did not consider that the builder had particularised its claim in a way that…

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: [2010] QCAT 585
Decision Date: 11 November 2010

CaseChat Overview and Summary

In the case of F.K. Gardner & Sons Pty Ltd v Grant, the dispute arose out of an alleged breach of contract and related claims brought by F.K. Gardner & Sons Pty Ltd against Grant. The case was heard in the Federal Court of Australia. The plaintiff, F.K. Gardner & Sons Pty Ltd, sought to amend the directions previously set by the court, which had been established to manage the case and ensure its timely resolution. The defendant, Grant, opposed these amendments.

The central legal issue before the court was whether the plaintiff should be allowed to amend the directions again, given that previous attempts to amend had not led to the proceedings advancing towards resolution. The court had to balance the need for efficient case management against the potential merits of the plaintiff's proposed changes to the directions. The court needed to determine if further amendments would be conducive to achieving a resolution or if they would merely delay the proceedings.

The court ruled that the application to vary the directions should be refused. It found that multiple applications to amend the directions, without a corresponding advancement towards resolution, suggested that the plaintiff's approach was not effective. The court emphasised the importance of adhering to the directions set to ensure the case progressed efficiently. By denying the application, the court aimed to expedite the resolution of the underlying dispute and to maintain the integrity of the case management process.

No further orders were made beyond the refusal of the application to vary the directions. The case remains subject to the directions previously issued, with an expectation that the parties will abide by them to facilitate the resolution of the dispute.

Orders

Orders of the court

The application for variation of the directions of 21 October 2010 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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