HK Developments Pty ltd v Doeuk - [2013] QCAT 504

CITATION:

H K Developments Pty Ltd v Doeuk [2013] QCAT 504

PARTIES:	H K Developments Pty Ltd (Applicant)
v
Mr Sona Doeuk Mrs Sa-Ath Doeuk (Respondents)

APPLICATION NUMBER:

BDL025-12

MATTER TYPE:

Building matters

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Mr David Paratz, Member

DELIVERED ON:

20 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application of H K Developments Pty Ltd for leave to file an amended Response to the Respondent’s Counter-Application in terms of the Response exhibited to the Affidavit of Craig Daniel Tanzer sworn on 16 August 2013 is refused.

2. The Application of H K Developments Pty Ltd for leave to file the Statements of Tryggve Clive Salter and Rainer Paul Kayra exhibited to the Affidavit of Craig Daniel Tanzer sworn on 16 August 2013 is refused.

3. H K Developments Pty Ltd is given leave to file the Statement of Blair Ripley exhibited to the Affidavit of Craig Daniel Tanzer sworn on 16 August 2013.

CATCHWORDS:

BUILDING DISPUTE – matter part heard – Applicant obtaining legal representation part way through hearing – Applicant seeking leave to amend Response to Counter-Application, and to adduce further evidence after receiving legal advice – limits on the ability of a party to change pleadings and case

Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244

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

This matter is part heard. It was set for 3 days on 21, 22 and 23 May. The Applicant, H K Developments Pty Ltd (HK) had not completed its case by the end of those three days, and the matter was adjourned to 10 and 11 July 2013 for another two days of hearing.
Before the hearing resumed, HK, who had been representing itself, obtained legal representation.
On 5 July 2013, I held a Directions Hearing to consider an application for a further adjournment of the hearing by HK. I granted leave for HK to be legally represented for the balance of the proceedings, and granted the Adjournment to enable the HK’s legal representatives to prepare for the adjourned hearing. The adjourned hearing was then reset for three days on 13, 14 and 15 November 2013. I ordered that HK pay the Doeuk’s costs thrown away by the adjournment and of the Directions Hearing.
I further directed that if HK wished to file new evidence it must file an Application, that the Doeuks have a right to respond to that application, and that that the Application would be decided on the papers not before 6 September 2013.
HK filed an Application on 19 August 2013 seeking leave to file an amended Response to the Respondent’s Counter-Application in terms of the Response exhibited to the Affidavit of Craig Daniel Tanzer sworn on 16 August 201; and leave to file further evidence exhibited to the affidavit of Craig Daniel Tanzer sworn on 16 August 2013.
The Doeuks filed a Response to that Application on 9 September 2013.
This is the decision on that Application.
In Annexure “A” to the Application, the Solicitors for HK make submissions in support of the Application. They argue generally that HK, through its “lack of legal nous” has failed to properly plead its case; and due to its self-representation failed to appreciate the complex legal principles relating to breach of contract, termination of contract, damages for termination of contract and various issues arising out of or in connection with the Domestic Building Contracts Act 2000.
The amended Response to the Counter-Application seeks to raise new issues as to a Notice to Remedy Breach issued by the Doeuks; the rectification of defects by HK; the termination of the Contract by the Doeuks; the effect of the owner’s taking possession of the works; and the refusal of the Doeuks certifier to issue a final certificate.
HK argue that the evidence before the tribunal is presently insufficient for the tribunal to be fully informed of the issues in dispute in the proceeding and how the evidence relates to those issues in dispute.
HK propose to file statements of evidence, which are exhibited to the supporting affidavit of HK’s Solicitor, from Tryggve Salter ( a maintenance subcontractor and labourer); Rainer Paul Kyra (Carpenter and Supervisor); and Blair Ripley (Building Inspector).
The Doeuks have filed a Response on 9 September 2013 which argues that the issue as to whether the Doeuks had a right to terminate the contract after 10 days notice was given is a false issue, and that the evidence sought to be adduced from Mr Salter and Mr Kayra is general, lacks specificity, and is embarrassing to the Doeuks. No objection is taken to Mr Ripley’s affidavit, as it addresses the Scott Schedule (although they reserve the right to object to parts of the affidavit, particularly Exhibit BR-2).
The Doueks submit that:-
(HK) is now attempting to fight its case on a completely different basis from that which it set out to fight it on. The Respondents remain concerned that any amendments or fresh evidence may have the effect of nullifying all or part of the trial so far. The result will be that some or all of the costs incurred so far will be thrown away. (Para 7)
The course that this hearing has taken is unfortunate. The matter has already exceeded the original 3 days allocated to it.
It is not a satisfactory situation that the Applicant is seeking to adduce new evidence, and to shore up or make its legal case, half-way through the hearing. The Respondent is entitled to know well before the hearing what arguments and evidence it will be facing, and the procedures of the tribunal are intended to achieve that.
The Doeuks sought leave to be legally represented, and were granted that leave on 14 May 2012, about 16 months ago. It was open to HK to make a similar application much earlier than they ultimately did. If HK had made an application for representation, particularly once the Doueks had been given leave to be represented, then it would have been almost certain that they would have been given leave, just as they ultimately were. The decision not to obtain legal representation and to conduct the proceedings by itself was a decision of HK itself.
In Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244, the President, Justice Alan Wilson, was hearing an Appeal from a refusal to allow an amendment, and said:-
[20]In some of QCAT’s many jurisdictions, like building cases, the issues are often complex and (as here) it has also inherited matters from former tribunals in which court procedures were often, with respect, mimicked – with pleadings, and the like. This case is one of those. It is not inappropriate to observe that the course it has followed is hardly different, if at all, from the path it would have taken through a Queensland court.
[21]In those circumstances, I think the proper approach to the question whether or not the applicants should have leave to amend their pleading at a late stage, and in a way which involves permitting them to present new expert evidence, necessarily involves the application of the same principles as those which a court would adopt. Those principles were addressed by the High Court in Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175.
[22]As observed in that case, an application for leave to amend a pleading should not be approached on the basis that a party is always entitled to raise an arguable claim, subject to payment of costs by way of compensation, at any stage in the proceedings. Rather, in applications of that kind all matters relevant to the exercise of the power to permit an amendment must be weighed; and these include, typically, questions of delay, wasted costs, the legitimate concerns of proper case management, and the proper use of public resources.
[23]In particular, the question is whether or not the proceeding has reached a point in which it is appropriate to place limits upon the ability of a party to affect changes to their pleadings, and their case.
In that case the learned Member at first instance had noted as to the application that:-
It is less of a case of changing horses midstream as changing them when the finishing post is in sight.[1]
[1] Paragraph 5, Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244.
These proceedings have moved well past the stage they were at in that case. In that case the Application was made 6 months before the hearing date. In this case the hearing is half heard.
HK have had the carriage of this matter on their own behalf since their Application was filed by themselves on 27 January 2012. There have been numerous Directions Hearings which they have participated in.
The Doeuks provided Further and Better Particulars of their Counter-Application through their Solicitors on 25 July 2012. HK would have been aware from at least that date of the overall significance of the matter.
Allowing substantial changes to HK’s case mid-way through the trial raises the risk of protracting the proceedings, perhaps requiring witnesses to be recalled, perhaps causing much of the proceedings to date to be of reduced value, and is likely to involve wasted costs.
The proposed amendments would take the Doeuks by surprise. They have defended this matter, and framed their Counter-Application, for 20 months on the basis of HK’s original application. The Response to the Counter-Application was filed by HK on 26 April 2012, about 17 months ago. It would place them in an unfair situation to now have to respond to a different case.
Taking all these matters into account, I consider that the point has been reached and passed where it is appropriate to place limits upon the ability of HK to effect changes to their pleadings, and their case.
Accordingly, I do not consider it appropriate to allow HK to amend its Response in order to raise new issues at this stage of the proceedings.
Of the new evidence that is sought to be adduced, two statements (those of Mr Salter and Mr Kayra) relate to the proposed new argument as to finalisation of defects after receipt of the Notice to Remedy Breach. As I do not propose to allow that new argument to be raised, then there is no basis for admission of these statements.
The Doueks do not object to Mr Ripleys affidavit being filed. It is relevant to the Scott Schedule which is central to the matters being contested. I therefore will give leave for Mr Ripleys affidavit to be filed.
I note that there are already reserved costs to be determined as to an earlier adjournment of the hearing, pursuant to the directions of Senior Member Oliver on 18 March 2013.
I did address both parties with my concerns as to the costs of this matter during the hearing. There is now a likelihood of there being six days of hearing. For three of those days one party has had a Solicitor and Counsel. For the next three days that party will further have a Solicitor and Counsel, and the other party will also have at least a Solicitor. There will no doubt be strenuous arguments as to costs. I encourage both parties to consider carefully the economic consequences of such a hearing, and encourage them to explore reasonable attempts at settlement.
I order that:-
1. The Application of H K Developments Pty Ltd for leave to file an amended Response to the Respondent’s Counter-Application in terms of the Response exhibited to the Affidavit of Craig Daniel Tanzer sworn on 16 August 2013 is refused.
2. The Application of H K Developments Pty Ltd for leave to file the Statements of Tryggve Clive Salter and Rainer Paul Kayra exhibited to the Affidavit of Craig Daniel Tanzer sworn on 16 August 2013 is refused.
3. H K Developments Pty Ltd is given leave to file the Statement of Blair Ripley exhibited to the Affidavit of Craig Daniel Tanzer sworn on 16 August 2013.