Kypriadakis v Pham

[2011] QCAT 188

CITATION: Kypriadakis v Pham [2011] QCAT 188

PARTIES:	Mr Nicholas Kypriadakis
v
Mr Nhan Quoc Pham

APPLICATION NUMBER:   BDL402-10

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Adjudicator

DELIVERED ON: 20 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1]     The Applicant is to file, in the QCAT Registry by 2 June 2011, an affidavit of service which shows the date, time and mechanism by which the Application was served.

2]     The Applicant is to file, in the QCAT Registry, by 2 June 2011 an affidavit in support of the request for decision by default, setting out:

a) the precise order sought.

b)  the basis upon which any claim for damages has been calculated, and annexing all supporting materials.  

3]    This application will be determined on the papers by the Tribunal not before 3 June 2011.

CATCHWORDS: 

Decision by default – Adequacy of supporting material – Practice Direction 9 of 2010

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	No Appearance
RESPONDENT:	No Appearance

REASONS FOR DECISION

1. In this Application the Applicant seeks final relief pursuant to the procedure prescribed by QCAT Practice Direction 9 of 2010 for a decision by default where the damages sought are liquidated.

1. The originating Application was filed on 1 December 2010 and, according to the affidavit of service sworn by the Applicant, and filed in these proceedings on 15 December 2010, that application was served on the Respondent’s address for service by post.  The affidavit of service is silent as to the date upon which the Application was posted.

1. In order to comply with practice direction 9 of 2010 the affidavit of service must prove not only how but when the application was served.

1. This application for default judgment is adjourned to allow the Applicant to file an affidavit of service which establishes the date and time as well as the mechanism of service.

1. On further examination of the material in support of the application for the default decision it appears that this, too, is not yet compliant with the relevant practice direction.

1. The Applicant needs to identify precisely the orders sought from this Tribunal.  In his original application he seeks rectification of various building works.  However, in the application for the default decision the sum of $12,846.00 is claimed.  It is not clear whether this is claimed in addition to or in substitution of the claim for rectification.

1. In order to comply with practice direction 9 of 2010 the Applicant must prepare an affidavit in support of the request for the decision.  This affidavit should set out clearly and precisely what orders are sought and, if damages are claimed, it should also set out how that figure is arrived at, annexing all relevant material.

1. Some supporting material has already been collated and filed by the Applicant but the claim itself needs to be clearly set out in an affidavit and all necessary supporting documentation should be annexed.  

1. When the further required affidavits are received the matter can be relisted before me for consideration of the Application for a default decision.