Johnson v Modern Group (Qld) Pty Ltd

[2010] QCAT 375

CITATION: Johnson v Modern Group (Qld) Pty Ltd [2010] QCAT 375

PARTIES:	Mr Keith Frederick Johnson
v
Modern Group (Qld) Pty Ltd

APPLICATION NUMBER:   RE004-10

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 9 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Application to reopen proceedings dismissed

CATCHWORDS :  Application to reopen – where no new evidence – ss 137, 139 QCAT Act

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. On 7 July 2009, Mrs Reid dismissed an application brought by Mr Johnson against Modern. Mr Johnson’s claims were:

a)Replacement of the roof of his home;

b)Replacement of two skylights;

c)Construction of two new driveways; and

d)Compensation.

1. Mr Johnson has applied to reopen that decision.

2. Section 139(4) of the Queensland Civil and Administrative Tribunal Act (“the Act”) provides that the tribunal may only grant such an application if it considers that a reopening ground exists and the ground could be effectively or conveniently dealt with by reopening the proceeding. Section 137 sets out the meaning of “reopening ground”. The only relevant meaning for this proceeding is “the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided”.

3. Mr Johnson’ application reveals these arguments:

a)The Authority and this tribunal abused their position;

b)The Authority’s inspector did not inspect the whole house, contrary to his report;

c)Modern did not provide tarps for the house when the roof tiles were removed;

d)The Authority was wrong in determining there were no cracks in the skylight.

e)The Authority did not inspect the main driveway.

1. Mr Johnson has also supplied photos with this application. He notes that these photos had been given to the tribunal in the earlier proceeding.

2. The threshold test for an application to reopen is whether there is any new evidence. If there is no new evidence, it is not necessary for me to consider whether this evidence was reasonably available when the proceeding was first heard and determined or whether a substantial injustice would occur if the proceeding was not reopened. Mr Johnson has not provided the tribunal with any new evidence. His application must fail.

3. I acknowledge that Mr Johnson is unhappy with the decision of the previous tribunal.  An application for a reopening was not the appropriate way to bring those matters to the attention of the tribunal.