JM Holdings (Qld) Pty Ltd v Queensland Building Services Authority
[2010] QCAT 325
•2 July 2010
| CITATION: | JM Holdings (Qld) Pty Ltd v Queensland Building Services Authority [2010] QCAT 325 |
| PARTIES: | JM Holdings (Qld) Pty Ltd |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR157-09 |
| MATTER TYPE: | General administrative review matters |
| DECISION ON THE PAPERS OF: | Dr Bridget Cullen Mandikos, Member |
| DELIVERED ON: | 2 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application of the Queensland Building Services Authority, dated 11 May 2010, seeking to strike out Application QR157-09 is granted. 2. Application QR157-09 is dismissed, in accordance with the Order of the Commercial and Consumer Tribunal dated 5 November 2009. 3. The Directions Hearing scheduled for 8 July 2010 is vacated. 4. The Queensland Building Services Authority to make any application for costs no later than 4.00 pm on Friday, 30 July 2010. |
| CATCHWORDS : | REVIEW OF DECISION – QUEENSLAND BUILDING SERVICES AUTHORITY – SCOPE OF WORKS DECISION – Where builder disputed scope of works decision by Authority following owner’s termination of domestic building contract through no fault of owner. APPLICATION TO STRIKE OUT – FAILURE TO COMPLY WITH ORDER – APPLICATION DISMISSED - Where builder failed to notify Tribunal of intention to proceed with review application, resulting in dismissal pursuant to guillotine order. Queensland Civil and Administrative Tribunal Act 2009 Aqwell P/L v BJC Drilling Services P/L & Ors [2009] QCA 281, considered |
APPEARANCES and REPRESENTATION:
On the papers.
REASONS FOR DECISION
Background
The focal point of this application relates to an Order made by the Commercial and Consumer Tribunal (“CCT”) prior to the CCT’s amalgamation into the Queensland Civil and Administrative Tribunal (“QCAT”) on 1 December 2009.
On 5 November 2009, the CCT, Member Bradley, made the following Order with respect to Application QR157-09:
(1) The record is noted that the applicant today informed the Tribunal that he did not wish to proceed with the application.
(2) The applicant’s application for the operation of a stay of the decision is dismissed.
(3) The applicant will advise the registry in writing, copied to the respondent, if the applicant wishes to proceed with the application for review, by:
4:00 pm on 14 December 2009
(4) If the applicant does not advise that it wishes to proceed with the application by the date stated in paragraph 3 of this order, then the application will stand dismissed.
(5) If the applicant advises that it wishes to proceed with the application, then registry will re-list the matter for a directions hearing at a time and date to be advised to the parties by registry.
(6) Costs of the application for a stay are reserved.
Whilst a full chronology of relevant events is set out below, this dispute relates to the 11 May 2010 Application of the Respondent, the Queensland Building Services Authority (“QBSA”) seeking to strike out QR157-09, on the basis that the Applicant, JM Holdings (Qld) Pty Ltd (“JM Holdings”) failed to comply with the 5 November 2009 Order of the CCT. Specifically, the QBSA asserts that QR157-09 stood dismissed as of the 15 December 2009, as JM Holdings did not advise of its intention to continue prior to 4.00pm on 14 December 2009.
Chronology
The events that led to the making of the 5 November 2009 Order of the CCT are set out below.
- 8 August 2005 –JM Holdings and Mrs May Hansen and Mr Richard Hansen (trading as “Chesalon Grazing Co.”) (“the Owners”) enter into a Master Builders Residential Building Contract for works at the Owner’s Tambo Road, Alpha, Queensland, property.
- 4 December 2006 – The QBSA receives a Complaint Form from the owners, alleging that the building work performed by the Applicant was defective and incomplete. (QBSA Statement of Reasons “SOR” Exhibit SOR-2; SOR-3)
- 7 August 2007 – The QBSA advises JM Holdings that it has determined the contract between it and the Owners was validly terminated for reasons other than the fault of the Owners. (SOR-28)
- 4 September 2007 – JM Holdings files Application QR151-07 in the CCT seeking review of the QBSA’s decision that the contract had been validly terminated.
- 15 June 2009 – QBSA provides JM Holdings with the scope of work that it considers necessary to rectify defective and incomplete work. The 15 June 2009 letter from the QBSA to JM Holdings with regard to scope of works, provided JM Holdings with the following advice:
“Pursuant to section 102 of the Commercial and Consumer Tribunal Act 2003, you are entitled to apply to the Commercial and Consumer Tribunal (the Tribunal) for a review of a reviewable decision made by BSA. Pursuant to section 86 of the Queensland Building Services Authority Act 1991 a reviewable decision includes BSA’s decision about a scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work. An application must be made to the Tribunal within twenty-eight (28) days of receipt of this letter. For your information the telephone number of the Tribunal is 3247 3333.”
- 15 July 2009 – JM Holdings files Application QR157-09 in the CCT, seeking review of the scope of works to be undertaken under the statutory insurance scheme, and a stay of the decision.
- 14 August 2009 – Application QR151-09 was dismissed following a hearing in the CCT by Member Oliver (as he was then), who agreed with the QBSA that the owners validly terminated the building contract through no fault of their own: JM Holdings (Qld) Pty Ltd v QBSA [2009] QCCTB 174.
- 13 October 2009 – JM Holdings’ Solicitors, Boulton, Cleary & Kern, cease acting on JM Holdings’ behalf.
- 5 November 2009 – Stay application in QR157-09 heard in the CCT. JM Holdings is represented at the stay hearing by its Director, Mr John Mogg (“Mr Mogg”), who appeared by telephone. The CCT (Member Bradley) made the following Orders:
(1) The record is noted that the applicant today informed the Tribunal that he did not wish to proceed with the application.
(2) The applicant’s application for the operation of a stay of the decision is dismissed.
(3) The applicant will advise the registry in writing, copied to the respondent, if the applicant wishes to proceed with the application for review, by:
4:00PM ON 14 DECEMBER 2009
(4) If the applicant does not advise that it wishes to proceed with the application by the date stated in paragraph 3 of this order, then the application will stand dismissed.
(5) If the applicant advises that it wishes to proceed with the application, then registry will re-list the matter for a directions hearing at a time and date to be advised to the parties by registry.
(6) Costs of the application for a stay are reserved.
- 1 December 2009 – CCT amalgamated into QCAT.
- 18 December 2009 – QCAT receives undated letter from Mr Mogg advising that:
“I WILL BE CONTUNING WITH THIS LEAGLE MATTER AND WILL BE APPOINTING CONLEY AND SUTHEY AS MY NEW LAWERS”
- 14 January 2010 – The QBSA delivered a Notice of Debt to JM Holdings, advising that it had approved an insurance claim in the amount of $200,000.00 pursuant to the insurance provisions of the Queensland Building Services Authority Act 1999.
- 15 January 2010 – QCAT advises parties that QR157-09 is listed for a Directions Hearing on 16 February 2010.
- 16 February 2010 – QCAT directs that the parties have leave to be legally represented, parties to file and serve statements of evidence, and attend a compulsory conference.
- 22 March 2010 – Deadlines for filing and serving statements of evidence are extended by consent order.
- 29 April 2010 – Directions Hearing – QCAT directs QBSA to file and deliver statements of evidence no later than 4.00pm on 21 May 2010, and lists QR157-09 for a compulsory conference on 8 June 2010.
- 11 May 2010 – QBSA files an application in QCAT seeking to strike out QR157-09, on the basis of JM Holdings failure to comply with the 5 November 2009 Order of the CCT. Specifically, the QBSA asserts that QR157-09 stood dismissed as of the 15 December 2009, as JM Holdings did not advise of its intention to continue prior to 4.00pm on 14 December 2009.
It is the 11 May 2010 Application of the QBSA that is the subject of this decision.
QBSA’s submissions in favour of the 11 May 2010 application
Affidavit of Gary Stick (“Mr Stick”), QBSA Resolution Manager, sworn to 11 May 2010
Mr Stick swears that the QBSA did not receive notification from JM Holdings indicating that JM Holdings intended to proceed with QR157-09 prior to 4.00 pm on 14 December 2009. Mr Stick further swears that it did not receive JM Holdings’ correspondence on this issue until 5 May 2010, when the QBSA requested a copy of Mr Mogg’s undated letter (received by QCAT on 18 December 2009), from the QCAT case manager directly.
On 14 January 2010, Mr Stick advises that the QBSA drew a cheque in favour of the owners, for the sum of $200,000.00, which was presented on 21 January 2010, as evidenced by bank records annexed to Mr Stick’s affidavit.
In addition to Mr Stick’s affidavit material, the QBSA has provided submissions prepared by Mr Brendan Cole, Principal Legal Officer, in support of its application dated 11 May 2010, and also in reply to the submissions prepared by JM Holdings in opposition to the application, dated 2 June 2010. There are aspects of these submissions which I will specifically address in my reasons below.
JM Holdings’ submissions in opposition to the 11 May 2010 application
Affidavit of John Andrew Mogg, sworn to 1 June 2010
On the issue relating to whether Mr Mogg notified the CCT (which became QCAT on 1 December 2009) prior to 4.00pm on 14 December 2009, the following portions of Mr Mogg’s affidavit are of particular importance:
“My understanding of the orders made at the hearing on 5 November 2009 was that I had to send the CCT a letter advising that I wished to continue with the application for review. I did send that letter to the CCT. I believe I sent it by facsimile on or about 13 December 2009.
* * *
I note it is date stamped as having been received by the CCT on 18 December 2009. I believe I sent it to the CCT by facsimile on 13 September 2009. I have checked the records stored on my facsimile machine and have yesterday printed a Fax Journal Report covering that period. Exhibited hereto and marked “JM-2” is a true and correct copy of that Fax Journal Report. I believe the record shows the fax was sent on 13 December 2009 which fits with my recollections however, I note the phone number recorded is 1800824642. I am unsure whether that is the CCT’s fax number or the actual number I dialled, or whether the receiving facsimile machine had an incorrect number recorded on it.”
Mr Mogg acknowledges that he did not notify the QBSA of his intentions as he “misunderstood the orders” and assumed that QCAT would call a directions hearing and thereby advise the QBSA after his advice to the Tribunal.
Affidavit of Paul Jason Hick (“Mr Hick”), Solicitor, sworn to 1 June 2010.
10. Mr Hick swears that his firm ceased acting for JM Holdings on 13 October 2009, and then resumed acting following acceptance of instructions in mid-March 2010.
11. Mr Hick further expresses his view that the QBSA, in corresponding and attending directions hearings, clearly indicated an intention to continue with the defence of JM Holdings’ Application QR157-09, until the time that the QBSA advised it intended to commence the instant proceedings seeking to strike out the proceedings in view of the CCT’s 5 November 2009 Order.
12. I have also had the benefit of written submissions prepared by JM Holdings’ Solicitors, dated 1 June 2010. In summary, these submissions raise arguments that (1) Mr Mogg did notify the Tribunal of his intention to proceed prior to expiry of the relevant date; (2) JM Holdings did not have legal assistance at the time the 5 November 2009 Order was made; (3) the QBSA has not adequately particularised the scope of works; and (4) the QBSA behaved in a manner that gave the impression they intended to defend JM Holdings’ Application QR157-09 on the merits, after the date that the QBSA says the Application was deemed dismissed.
Decision
13. It is my view that JM Holdings non-compliance with the 5 November 2009 Order of the CCT was two-fold. Firstly, JM Holdings failed to notify the Tribunal prior to the deadline of 4.00pm 14 December 2009, of its intention to proceed with application QR157-09. Secondly, JM Holdings failed to copy its notice, albeit late, to the QBSA, as it was specifically directed to: “advise the registry in writing, copied to the respondent”.
14. The consequences of the non-compliance with the timeframe are magnified by JM Holdings’ failure to alert the QBSA of its intentions. Mr Stick’s material indicates that the QBSA made its decision to approve the owners’ insurance claim after the 5 November 2009 Order of the CCT had the effect of dismissing JM Holdings Application QR157-09 as at the 15 December 2009.
Impact of Aqwell P/L v BJC Drilling Services P/L & Ors [2009] QCA 281
15. The Court of Appeal, in Aqwell P/L v BJC Drilling Services P/L & Ors [2009] QCA 281 (“Aqwell”), considered an Order that was designed to dismiss the proceeding in the event that the plaintiff failed to take steps, and to enter judgment for the defendant. In his decision, Justice Muir said the following:
Orders of the nature of that under consideration are not normally drafted, as is a commercial contract, with a view to accommodating any contingency which the parties can reasonably envisage. In the drafting of court orders, clarity, simplicity and freedom from ambiguity are predominant considerations. (emphasis is mine).
16. In Aqwell, the Court of Appeal determined that the appellant’s action had been wrongly dismissed, as the proper construction of the order in question did not “readily accommodate the primary judge’s construction.” However, in Aqwell, in contrast to this application, the timetable established by the order contemplated the performance of a series of acts by specified dates, or within prescribed timeframes. Namely, the Court of Appeal had to determine whether the language of one portion of the order should be read in singular or plural, which would then determine whether a subsequent self-executing dismissal provision was activated.
17. The complexities that existed between the interrelationships of the subparts of the orders in Aqwell are absent in this application. Here, the self-executing dismissal provision of the CCT’s 5 November 2009 Order was dependent only upon notification by JM Holdings to the Tribunal, copied to the QBSA.
QBSA’s belief that Application QR 157-09 stood dismissed
18. The consequences of JM Holdings’ late notification are lamentable in that dismissal of these proceedings means that the merits of JM Holdings’ application will not be heard. However, QCAT is obliged to balance JM Holdings desire to progress its application with the need for certainty by Respondents. I am satisfied that the QBSA, during the period between QCAT’s 16 February 2010 Directions Order and the making of this Application on 29 April 2010, was operating under the presumption that Application QR157-09 was not dismissed.
19. I am also satisfied that the QBSA decided to issue the cheque to the owners for $200,000.00 in the belief that Application QR157-09 stood dismissed. As the chronology above establishes, the 14 January 2010 decision by the QBSA to authorise a cheque for the maximum allowed pursuant to the QBSA’s statutory insurance scheme was made the day prior to QCAT’s 15 January 2010 issuing of Attendance Notices for the 16 February 2010 Directions Hearing.
Following dismissal, QBSA not obliged to particularise scope of works
20. I do not consider it necessary for me to address JM Holdings’ arguments that the QBSA has not adequately particularised the scope of works in question. As Application QR157-09 stood dismissed, the QBSA was not under an obligation to further engage with JM Holdings about this issue, save for in the context of any proceedings to recover the debt from JM Holdings. Nor was the QBSA under any obligation, as JM Holdings asserts, to notify JM Holdings that it considered QR157-09 dismissed. The terms of the CCT’s 5 November 2009 Order are clear.
21. The events that led to the Order of 5 November 2009 transpired during the hiatus in which JM Holdings did not have the benefit of legal assistance, as set out in Mr Hick’s affidavit. I am not privy to the reasons that led to JM Holdings being unrepresented, nor are they relevant. Although JM Holdings did not have legal assistance at that time, I note that Mr Mogg did appear by telephone at the 5 November 2009 Directions Hearing that led to the making of the Order, and thus was advised of the critical date, namely 4.00 pm on 14 December 2009.
JM Holdings purported 13 December 2009 notice
22. JM Holdings has argued that it did notify the Tribunal on 13 December 2009, the day prior to the self-executing dismissal provision taking effect. JM Holdings supports this argument with Mr Mogg’s affidavit, as outlined above.
23. I have significant difficulty with Mr Mogg’s assertions that he notified the Tribunal via fax number “1800824642” for the following reasons. Exhibit JM-2 to his affidavit reflects that a fax to this number was made on 13 December 2009. It also reflects that a fax was sent to this same number on 22 December 2009, and 5 January 2010. In amongst the fax numbers listed on Exhibit JM-2, there are several faxes that were sent to the fax number “0732473300”. Faxes to this number were delivered on 31 October 2009, 20 December 2009, and 17 February 2010. These are of particular note, as the fax number “0732473300” belonged to the CCT, and continues to operate within the civil registry at QCAT.
24. I agree with the QBSA’s submissions that, having the benefit of the actual CCT fax number, which Mr Mogg utilised both before and after the 13 December 2009, that it is unusual that he would then choose to use a “1800” fax number to send time-sensitive correspondence to. The CCT did not, nor does QCAT, utilise any “1800” numbers. Moreover, even if Mr Mogg did mistakenly send his purported 13 December 2009 notice to the Tribunal, there is no explanation for his continued use of that same “1800” number.
25. The QBSA points out in its Submissions in Reply dated 2 June 2010, and I agree, that it is unusual that there is no facsimile header imprint on Mr Mogg’s notice, which might assist in determining whether it was received by the Tribunal prior to 4.00 pm on 14 December 2009. It is clear that it was received by the Tribunal as at 18 December 2009, but at that stage, the application should have been deemed dismissed. It was not necessary for QCAT to progress this matter to a Directions Hearing on 16 February 2010, but presumably QCAT did so in order to address the JM Holding’s 18 December 2009 correspondence.
26. Regardless of whether JM Holdings notified the Tribunal, it did not notify the QBSA of its intention to proceed with the Application QR157-09. This was critical, particularly in view of the obligations that the QBSA had to consider the owners’ application for access to the statutory insurance scheme in timely fashion. I do not think that this portion of the 5 November 2009 CCT Order was unclear, as JM Holdings asserts. The fact that the word “applicant” appears in bold, in the phrase “[t]he applicant will advise the registry in writing, copied to the respondent, if the applicant wishes to proceed with the application for review,” in my mind makes it clear that this was a job for the applicant to do, and not the obligation of the Tribunal.
Orders
The Application of the Queensland Building Services Authority, dated 11 May 2010, seeking to strike out Application QR157-09 is granted.
Application QR157-09 is dismissed, in accordance with the Order of the Commercial and Consumer Tribunal dated 5 November 2009.
The Directions Hearing scheduled for 8 July 2010 is vacated.
The Queensland Building Services Authority to make any application for costs no later than 4.00 pm on Friday, 30 July 2010.
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