Forrest v Abbott Builders (Qld) Pty Ltd - [2021] QCAT 60

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Forrest & Anor v Abbott Builders (Qld) Pty Ltd [2021] QCAT 60

PARTIES: PHILLIP FORREST
JAN FORREST

(applicants)

v

ABBOTT BUILDERS (QLD) PTY LTD

(respondent)

APPLICATION NO/S:

BDL280-19

MATTER TYPE:

Building matters

DELIVERED ON:

22 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.   The parties have leave to be legally represented in the proceedings.

2.   If Phillip Forrest and Jan Forrest intend to rely upon the report of Paul Burgess dated 20 June 2020, Phillip Forrest and Jan Forrest must file in the Tribunal two (2) copies and give to Abbott Builders (Qld) Pty Ltd one (1) copy of a statement by Paul Burgess attaching a copy of his report by:

4:00pm on 5 February 2021.

3.   Phillip Forrest and Jan Forrest must give to Abbott Builders (Qld) Pty Ltd a copy of the Scott Schedule filed 25 November 2020 in electronic form by:

4:00 pm on 5 February 2021.

4.   Abbott Builders (Qld) Pty Ltd file in the Tribunal two (2) copies and give to Phillip Forrest and Jan Forrest one (1) copy of a response to the Scott Schedule referred to in Direction 3 herein, by identifying in the Schedule whether the claim by Phillip Forrest and Jan Forrest for each item of work is accepted or rejected together with any support documents that must be identified, explained and attached to the Schedule by:

4:00pm on 19 February 2021

5.   The matter is listed for a Directions Hearing on a date and time to be advised.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where the respondent builder has applied for legal representation – where there are both claims for defective/incomplete building work and for late completion of building works – where none of the individually identified issues are complex, but are complex when considered collectively they become complex – where the applicants oppose the granting of leave to be legally represented – whether leave to be legally represented should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s28, s29.

Chandra v Queensland Building and Construction Commission [2014] QCA 335

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 22 January 2021 I made orders granting leave for the parties to be legally represented in the proceedings and for steps to be taken by the parties to progress the proceedings. These are my reasons.
The Forrests commenced these proceedings by application for domestic building dispute filed in November 2019. In the application they sought restitution of $40,000.00 and costs of $5,000.00. The application alleged both defective and incomplete works performed by Abbott Builders. The Forrests identified twenty ‘issues’ in the application.
The Forrests filed an application for commercial building disputes on 21 January 2020 (the second proceedings). In the application 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: [2021] QCAT 60
Decision Date

CaseChat Overview and Summary

Phillip Forrest and Jan Forrest have commenced proceedings against Abbott Builders (Qld) Pty Ltd in the Queensland Civil and Administrative Tribunal (QCAT) seeking restitution and damages in relation to a residential building contract. The Forrests allege that Abbott Builders performed defective and incomplete works, as well as completing the works late. The respondent has applied for leave to be legally represented in the proceedings. The Forrests oppose the application and have raised concerns about the potential disadvantage they may experience if the respondent is granted leave to be represented. The QCAT must determine whether it is in the interests of justice for the parties to be legally represented.

The primary legal issue before the tribunal is whether it is in the interests of justice for the parties to be legally represented in the proceedings. In making this determination, the tribunal must consider the relevant statutory provisions, the objects of the QCAT Act, the principles of natural justice and fairness, and any potential disadvantages that may be experienced by an unrepresented party.

The tribunal found that the matters before it were complex both legally and factually, and that collectively, the issues identified in the parties' statements of evidence warranted the parties being granted leave to be legally represented. The tribunal also considered the duty of legal practitioners to assist in the administration of justice and the tribunal's own obligations under the QCAT Act to ensure fairness and understanding of the proceedings. The tribunal was not persuaded that granting leave for legal representation would place the Forrests at a disadvantage. The tribunal also noted that if leave was granted, the Forrests had the right, but not the obligation, to have legal representation.

The tribunal granted leave for the parties to be legally represented in the proceedings. Further directions were made to assist in the progress of the matter, including directions for the filing of statements by the Forrests' expert and a response to the Scott Schedule by Abbott Builders.

In summary, the tribunal found that it was in the interests of justice for the parties to be legally represented in the proceedings due to the complex nature of the issues involved. The tribunal also considered the duties of legal practitioners and its own obligations under the QCAT Act in reaching its decision.

Orders