James Trowse Constructions Pty Ltd v Spankie

[2011] QCAT 696

CITATION: James Trowse Constructions Pty Ltd v Spankie and Ors [2011] QCAT 696

PARTIES:	James Trowse Constructions Pty Ltd
v
Mr David Spankie Ms Gai Spankie Northern Investment Holdings Pty Ltd

APPLICATION NUMBER:   BDL026-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 29 September 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The application for a default decision filed 19 August 2011 is dismissed.

2.    The application to dismiss the proceeding filed 25 July 2011 is upheld.

3.    The proceeding is dismissed.

CATCHWORDS:

BUILDING DISPUTE – PROCEDURE – commercial building dispute – where proceedings in Supreme Court – where proceeding on discrete issue filed in tribunal – where application for decision in default – whether proceeding an abuse of process

Queensland Civil and Administrative Tribunal Act 2009, ss 47, 50

Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271
Collier & Collier v Brisbane City Council & anor; Sexton & Sexton v Brisbane City Council & anor [2009] QPEC 40

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.

REASONS FOR DECISION

1. The respondents entered into a building contract with James Trowse Constructions Pty Ltd for the construction of a hotel.  Towards the end of the building project, the parties fell into dispute.  The respondents brought proceedings in the Supreme Court; James Trowse brought a claim in the tribunal.

2. The parties attended a compulsory conference in July 2011.  Shortly after the conference, James Trowse brought an application for a decision by default on the grounds that:

a)The respondents had not filed a valid defence.  They have not denied James Trowse’s prima facie entitlement to the amount claimed by way of retention.

b)The grounds for disputing the claim relate solely to an alleged entitlement to deduct or set off unliquidated claims.  James Trowse denies liability for these claims and they remain the subject of Supreme Court proceedings.

c)James Trowse’s counterclaim is “more complex” and will require the determination of a Judge.

d)The recovery of retention monies is a discrete issue that can, and should, be dealt with separately.

1. The respondents say that:

a)This proceeding should be litigated in the Supreme Court and the tribunal proceedings should be dismissed.

b)Clause 37.6 of the contract allows them to deduct from any payment otherwise due to James Trowse any claim for payment whether for damages or otherwise.  This is a defence to the claim in the tribunal.

1. The tribunal may give a decision by default if a person has applied to recover a debt or liquidated demand and the respondent has not responded to the application within the stated time.[1]  The respondents have responded to the application as they filed a response and counter application on 9 June 2011.  I have no power to give a decision by default.

   [1] Section 50 QCAT Act.

2. I do have power to strike out an application if I consider the proceeding to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.[2]

   [2] Section 47 QCAT Act.

3. The meaning of “frivolous or vexatious” was considered by the Court of Appeal in Mudie v Gainriver Pty Ltd (No 2).[3]  The Court’s findings are usefully summarised by Rackemann DCJ in Collier & Collier v Brisbane City Council & anor; Sexton & Sexton v Brisbane City Council & anor.[4]

   [3] [2003] 2 Qd R 271.

   [4] [2009] QPEC 40 at [4].

4. It appears to me that James Trowse has tried to sidestep the Supreme Court proceedings, which have been on foot since 2009 by bringing an application in the tribunal.  I can see no good reason why the application should continue before the tribunal when the issue is already before the Court.  The application for payment of the retention money is just one of a number of issues that are before the Court.  A decision of this tribunal will not bind the Court; it will not necessarily shorten the proceedings before the Court; and it is a not a discrete issue that can be determined quickly and easily.  It appears that James Trowse was not prepared to wait for the Supreme Court proceedings to be concluded and thought it would indulge in a little forum shopping.  I am satisfied that the proceeding brought by James Trowse in the tribunal is an abuse of process.

5. Section 47(2) of the Queensland Civil and Administrative Tribunal Act allows me to strike out a proceeding which I consider to be an abuse of process.  I can see no good reason to stay the proceeding pending a decision in the Supreme Court as a decision in that action will determine the rights of the parties in this proceeding.  The appropriate order is to dismiss this proceeding and let the Supreme Court action take its course.