Gutter Guardian Manufacturing Pty Ltd v Auscoast Builders Pty Ltd
[2013] QCAT 100
| CITATION: | Gutter Guardian Manufacturing Pty Ltd v Auscoast Builders Pty Ltd [2013] QCAT 100 |
| PARTIES: | Gutter Guardian Manufacturing Pty Ltd (Applicant) |
| v | |
| Auscoast Builders Pty Ltd (Respondent) |
| APPLICATION NUMBER: | REO003-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member |
| DELIVERED ON: | 5 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for reopening is dismissed. |
| CATCHWORDS: | Reopening – where the applicant knew of the hearing date but chose not to attend – where non attendance deliberate – where no appearance on the day of the hearing by the company and no adjournment sought due to unavailability of the representative of the respondent. Queensland Civil and Administrative Act s 137 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 21 May 2012 Auscoast Builders commenced a proceeding against Gutter Guardian for a refund of $8,750.00 for gutter guard materials supplied that, Auscoast Builders say, was not fit for its manufactured purpose.
Gutter Guard filed a response to the application putting in contest that the goods supplied were fit for the purpose and taking other technical points about the application. The application proceeded through the Tribunal processes in the normal way and there was a hearing set down for 11 September 2012. That hearing was adjourned with directions for the parties to file further material. There were subsequent extensions of time to comply with those procedural requirements with a final hearing ultimately set for 4 December 2012.
At the hearing on 4 December 2012 Gutter Guardian did not appear. The Tribunal made orders that Gutter Guardian pay to Auscoast Builders $8,750.00 and also made an order that the respondent collect the Gutter Guard product from a storage unit in New Farm within 28 days.
Gutter Guardian did not appear at the hearing. Because it says it has a reasonable excuse for not doing so, it filed an application to reopen the proceeding under section 138 of the QCAT Act. The Tribunal can reopen a proceeding if it is satisfied that a reopening ground exists. Reopening grounds relevantly here, under section 137(a) of the QCAT Act is that a party did not attend a hearing and “had a reasonable excuse for not attending the hearing”.
The reasonable excuse offered by Gutter Guardian is that it’s principal, Mr Kruger, was out of the country on the day of the hearing. In support of the application, an affidavit has been filed by Mr Long of MSV Lawyers who sets out the sequence of events leading up to the hearing. He says that on 13 November 2012 Gutter Guardian made an application for leave to be represented and also that the respondent be permitted to appear by telephone. Interestingly the application did not identify the representative of the respondent who was going to attend by telephone. The application in support of attendance by telephone simply states that the respondent “does not expect to be in the country at the time of the hearing”. The director of the respondent, presumably Mr Kruger, would be in Thailand.
On 14 November 2012 the Tribunal made a decision that the application for leave to be represented be refused and that the respondent’s application to attend by telephone was also refused.
On 29 November 2012 there was a conversation between a case officer and presumably Mr Kruger to follow up on compliance with directions made requiring the respondent to file material. It seems the case officer was informed that the person would “not be here for the hearing.”
Mr long, in his affidavit says he called the Tribunal on 30 November 2012 which was a Friday, to speak to the case officer, left a message for a call back but did not receive one and then the matter proceeded to hearing.
What emerges from these facts is that the respondent’s representative, presumably Mr Kruger, knew from early November that the hearing date set for 4 December was not going to be suitable for him personally and as late as 30 November 2012 he had his solicitor contact the Tribunal concerning the hearing dates, but after that took no further steps to either attend or appear through another representative of the company.
The circumstances leading up to the hearing demonstrate that the respondent had no intention of attending the hearing and although one can be sympathetic to the circumstances confronting Mr Kruger, no application to adjourn the hearing on the day was made on the grounds that there would be no one to represent the respondent at the hearing because of Mr Kruger’s commitments to travel overseas. At the very least, one would expect the solicitors to appear on the morning of the hearing, even though legal representation was refused, to at least either apply for an adjournment or explain that there was no one available from the respondent to attend the hearing.
This is not a case of having a reasonable excuse for not appearing, it is a matter where the respondent made a positive decision not to appear or appeal and apply for an adjournment.
No reopening ground has been established and therefore the application must be dismissed.
0
0
0