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

1. 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.

1. 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.

2. 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 allowed Grant to ascertain the items of work alleged to have been performed and the amount claimed for each item.

b)Grant considers that the builder’s schedule of works contains matters or events performed by others.

c)Grant is not in a position to specifically and meaningfully respond to the alleged value of the works undertaken.

d)A Scott Schedule, in a particular format, is an appropriate way for the builder to provide this information.

e)A Scott Schedule would enable the experts to consider the matters in dispute and potentially reach agreement, the parties would better understand each other’s case and the potential for agreement would be enhanced.

1. QCAT is a tribunal, not a Court. It does not have pleadings. It has an obligation to deal with matters in a way that is fair, just, economical, informal and quick.[1] It must encourage the early and economical resolution of disputes.[2]. It must ensure that proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.[3] It must act with as little informality and technicality and with as much speed as proper consideration of the matter before it permit.[4]

   [1] S3(b) QCAT Act

   [2] S4(b) QCAT Act

   [3] S4(c) QCAT Act

   [4] S28(d) QCAT Act

2. Nothing about the behaviour of the parties to date give me any confidence that they understand the “new broom” that QCAT brings to building disputes. Certainly, I have no confidence that the parties are willing to engage in a process that achieves the object of the QCAT Act. That does not mean that the tribunal will simply give up and allow the parties to conduct the dispute according to their own timetable and whims. Since the decision in Aon Risk Services Australia Limited v Australian National University[5], no party to litigation should expect to conduct litigation in a leisurely or unduly technical way.

   [5] [2009] 239 CLR 175

3. Section 29 of the QCAT Act requires the tribunal to take all reasonable steps to ensure that each party to the proceeding understands the nature of the assertions made in the proceedings and the legal implications of the assertions. It is apparent from the lawyers’ correspondence that they well understand the nature of the proceedings.

4. I made the directions of 21 October with a specific intention:

a)The parties would start the process of producing a Scott Schedule which will, in due course, contain all of the matters in dispute and the parties’ responses to those contentions.

b)The evolving Scott Schedule would avoid the need for extensive pleadings.

c)The builder will be given access to the subject dwelling.

d)The experts will be able to discuss the issues on site, amending and refining the Scott Schedule as they progress. A Member of the tribunal will chair the conference so that the parties can be assured that the experts comply with their obligation to the tribunal and do not act as advocates for the party who engaged them.

e)The Member will also be able to wrest the dispute from the grasp of the lawyers and learn from the parties themselves what the real nub of the dispute is and how resolution of the dispute might be achieved. Resolution of the dispute might occur to the parties’ satisfaction although at the expense of a legal or technical answer.

1. I note that the CCT gave leave for the parties to be represented. That privilege does not come without obligation. Section 62 of the QCAT Act allows the tribunal to make a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of a proceeding. That power may include the revocation of a party’s right to legal representation if the tribunal perceives that lawyers are hindering, rather than assisting, the resolution of the dispute.