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…

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: [2013] QCAT 504
Decision Date: 20 September 2013

CaseChat Overview and Summary

HK Developments Pty Ltd sought leave to amend its Response to Counter-Application and to adduce further evidence in a building dispute heard by the court. The applicant had initially appeared unrepresented, but obtained legal representation during the proceedings. The legal issues before the court were the applicant's ability to amend its Response to the Counter-Application and adduce further evidence after receiving legal advice. The court found that the limits on the ability of a party to change pleadings and case were applicable, and refused the applicant's application to amend its Response and to adduce further evidence. However, the court granted leave for the applicant to file the Statement of Blair Ripley. The court held that the applicant had not demonstrated a sufficient reason to justify an amendment to its Response or the admission of further evidence. While the applicant had obtained legal representation partway through the hearing, this did not entitle it to make changes to its case.

The court emphasised that parties must be cautious in the preparation of their cases and that the court would not allow changes to pleadings and evidence unless there was a good reason to do so. The court noted that the applicant had not provided any compelling reason for the amendment of its Response or the admission of further evidence. The applicant's attempt to rely on the fact that it had obtained legal representation partway through the hearing was not sufficient to justify the changes it sought to make. The court held that the applicant had not demonstrated any exceptional circumstances that would warrant an amendment to its Response or the admission of further evidence. The court's decision highlights the importance of careful preparation of cases and the limits on the ability of parties to change their pleadings and evidence once proceedings have commenced.

Orders

Orders of the court

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.

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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