Lightfoot v Temple
[2010] QCAT 124
•14 April, 2010
| CITATION: | Lightfoot & Anor v Temple [2010] QCAT 124 |
| PARTIES: | Adrian Michael Lightfoot and Janice Lightfoot |
| v | |
| Kenneth Temple |
| APPLICATION NUMBER: | BD141-07 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Fitzpatrick |
| DELIVERED ON: | 14 April, 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
“Upon consideration of correspondence received on behalf of the applicants dated 20 June, 2007 and noting that the parties attended a private mediation on 18 June, 2007 the Commercial and Consumer Tribunal makes the following order:
3. Costs be reserved to the final hearing of this proceeding. |
| CATCHWORDS : | Jurisdiction – Compromise – Accord and Satisfaction |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Adrian and Janice Lightfoot represented by Glendon Young of Winchester Young and Maddern, Solicitors |
| RESPONDENT: | Kenneth Temple represented by Adam Brown of Aden lawyers Pty Ltd |
REASONS FOR DECISION
Introduction
This is a decision about the further jurisdiction of the Tribunal in this proceeding.
The matter is to be determined on the papers.
A dispute has arisen in this proceeding relating to the effect of written Terms of Settlement entered into between the applicants and the respondent on 18 June, 2007, following a private mediation of matters before the then Commercial and Consumer Tribunal.
Background
A relevant chronology of events is:
(a)28 March, 2005, a Master Builders Residential Building Contract, was entered into between the applicants and the respondent whereby the respondent would construct a house for the applicants at 7 Binda Drive, Toowoomba;
(b)28 March, 2007, proceeding BD147-07 was commenced in the Commercial and Consumer Tribunal, whereby the applicants sought relief from payment of moneys claimed by the respondent for unpaid variations and the balance of the uncertified stage payment for practical completion; damages for breach of contract arising from unilateral variations and an order to rectify and complete works;
(c)18 June, 2007, written Terms of Settlement were entered into following a private mediation;
(d)20 June, 2007, the solicitors for the applicants wrote to the Commercial and Consumer Tribunal, advising a private mediation “resulted in a resolution of the issues presently before the tribunal. The terms of settlement reached between the parties provide for the discontinuance of the proceedings once the terms of settlement are otherwise performed.” The solicitors asked “would you please allow the proceedings to remain in abeyance pending our further advice once the terms of settlement are performed.”
(e)21 June, 2007, the Chairperson of the Commercial and Consumer Tribunal made the following Order, pursuant to s50 of the Commercial and Consumer Tribunal Act 2003:
“Upon consideration of correspondence received on behalf of the applicants dated 20 June, 2007 and noting the parties attended a private mediation on 18 June, 2007, the Commercial and Consumer Tribunal makes the following order by consent:
1. The record is noted that the matter has settled between the parties.”
(f)21 October, 2009, the applicants filed an application in a proceeding, in the Commercial and Consumer Tribunal, seeking a listing for directions for the ongoing conduct of the matter; the joinder of other parties; orders for the delivery of certain certificates and an order granting a right of legal representation.
(g)30 October, 2009, the respondent filed an application in a proceeding seeking a listing for directions and an order granting a right of legal representation.
(h)10 November, 2009, the Chairperson of the Commercial and Consumer Tribunal ordered that the parties exchange submissions in relation to the issue of jurisdiction.
Issues
The first question at issue is whether this Tribunal has the jurisdiction to deal further with the disputes between the parties in light of the terms of settlement entered into between the parties on 18 June, 2007.
This matter is a pending proceeding in accordance with s256 of the Queensland Civil and Administrative Act 2009 (QCAT Act). That is, it was an existing proceeding, commenced before the former Commercial and Consumer Tribunal and as at the date of commencement of the QCAT Act had not been withdrawn, dismissed, struck out or otherwise disposed of under the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act).
S271 of the QCAT Act provides that this Tribunal must deal with the matter the subject of the existing proceeding, under the QCAT Act or an enabling Act. However, it has and only has, the functions that the Commercial and Consumer Tribunal had in relation to the matter under the CCT Act and can and can only make a decision the Commercial and Consumer Tribunal could have made in relation to the matter under the CCT Act.
The Commercial and Consumer Tribunal has taken the view in several decisions, based on the District Court decision in Anderton v Parks Horticultural Services Pty Ltd, 17 Qld Lawyer Reports 48 McGill SC DCJ, that a proceeding involving a dispute about a settlement agreement, is not within the definition of “domestic building dispute”, even though that settlement agreement may have settled a dispute which was within that definition.
In Suncool Pools and Spas Pty Ltd v Freedom Pools and Spas (N)44-03) – 11 February, 2005, Member Moon made the following observations at paragraphs 8 and 9 of his decision:
“8. If the mediation agreement has the effect of bringing to an end the original cause of action, which the applicant might have had against the respondent, such that the applicant’s remedies arise entirely from the mediation agreement then this Tribunal does not have jurisdiction to hear and determine any claim which the applicant might have pursuant to that mediation agreement. See Anderton v Parks Horticultural Services Pty Ltd...
9. If that is not the case and the situation at law is that the original cause of action continues and is capable of being prosecuted by the applicant then, of course, the Tribunal would have jurisdiction to hear and determine that matter.”
Cases in the Commercial and Consumer Tribunal raising this issue have tended to be resolved upon the basis of a referral to a Queensland Court in accordance with s40 of the CCT Act, upon the basis that all of the issues between the parties could be resolved, being matters over which the Tribunal may have jurisdiction and matters over which it does not have jurisdiction, which arise out of the same facts. It has been said that if the Tribunal determined that its jurisdiction had ceased by reason of the settlement agreement, then the Tribunal would not have the jurisdiction to hear that matter. (See Sun Cool Pools and Spa’s Pty Ltd v Freedom Pools and Spas (2005) QCCTB 4 (February, 2005); Diamond Homes Pty Ltd v Simionova, V & B. (2005) QCCTB 82 ( I June 2005); Civic Steel Homes Pty Ltd v Steffens, T. & S. (2006) QCCTB 77; Samimi v Luong (2006)CCT B176-04 and Madhoji v Investment House Pty Ltd, In House Corporate Services Pty Ltd, Hastie Building Group Pty Ltd (2009) CCT BD424-08 & BD425-08).
This approach was criticized by Fryberg J. in the Supreme Court case of Anthony Warren Skaines v Kovac Enterprises Pty Ltd (2006) QSC 120. His Honour said at page 9:
“...the obligation falls upon the Tribunal to determine whether it has jurisdiction.
In the present case, it can only determine its jurisdiction by resolving the question whether the dispute which undoubtedly existed at the time the proceedings were commenced in the Tribunal has ceased to exist. It can only do that by deciding whether the compromise alleged by Kovac was indeed a compromise, whether the agreement for compromise has been terminated, or whether for some other reason the alleged compromise has become ineffective.”
At page 10 he went on to say:
“ It is the duty of the Tribunal to resolve jurisdictional facts and to determine its own jurisdiction.
In my view, the practice, if it is a practice, alleged by Mr. Skaines is one which ought not to be followed. I think that it is most undesirable that parties should be encouraged to run off to a court because the Tribunal does not wish to decide such questions.
More importantly, it is in my view a misconstruction of section 40 of the Commercial and Consumer Tribunal Act 2003 to hold that the Tribunal may make an order of the type there described without first determining that it does not have jurisdiction over the dispute submitted to it.”
Koppenol DCJ in Queensland Building Services Authority v Andrew (2009) QDC 97 referred to the comments of Fryberg J. and said at paragraph 6:
“With respect, all that Fryberg J was saying, in my view, is that which has been long settled – namely, that if the jurisdiction of an inferior court or tribunal depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction: see Halsbury’s Laws of England, 4th ed (Reissue),vol 10, par 314.
Thus, by resolving those jurisdictional facts, the Tribunal determines if it has jurisdiction. That resolution process, however, does not confer jurisdiction.”
To determine whether the Tribunal has jurisdiction to hear the matters raised by the applicants in their application filed in the Tribunal on 21 October, 2009, the Tribunal must consider the meaning and effect of the Terms of Settlement made 18 June, 2007. That is the jurisdictional fact which the Tribunal in this case must determine. If the Tribunal finds a compromise of the applicants’ claims exists which extinguishes the original application, the Tribunal will have no jurisdiction to further deal with the application. If the original application is not extinguished the Tribunal must then decide whether it can deal with the matters raised by the respondent with respect to the Terms of Settlement.
The second question to be dealt with is the effect of the order of the CCT made on 21 June, 2007, in particular whether it has the effect of finally disposing of the original application.
Terms of Settlement
The Terms of Settlement sets out in part:
“RECITALS:
Where as
(a)On or about, the 28th day of March 2005 the parties entered into a building contract with respect to a property located at 7 Binda Drive, Toowoomba whereby the Respondent, Ken Temple Building was to construct a residential dwelling for the Applicants;
(b)A dispute has arisen between the parties where by the dispute is currently the subject of an Application brought before the Commercial and Consumer Tribunal on or about the 26th march 2007, the issues in which dispute are fully set out in the Application filed 26 march 2007 and the Defence filed 24 April 2007;
(c)The parties have on the 18th June 2007 participated in a mediation conducted at Toowoomba and;
(d)The parties have reached agreement on terms to settle the building dispute.
THE TERMS OF SETTLEMENT
The Terms of Settlement are-
1.The Respondent undertakes to carry out the following work:
...
MODIFICATION OF CONTRACT
2.The Contract is to be amended by deleting from it the requirement for stencilling of the driveway and shall be otherwise modified as necessary to give effect to the works to be carried out as set out herein.
DEFECTS
3.The Respondent acknowledges and will make good the following identified defects together with any other defects which may be identified in the works set out above:
...
Where there is disagreement between the parties with respect to the works set out above, it is to be resolved by an independent third party as agreed by the solicitors for the parties or otherwise as appointed by the Building Services Authority of Queensland (BSA).
PAYMENT
4.The Applicant is to pay to the Respondent a total sum of $48,100.00 in three tranches payable as follows:
(a)The sum of $24,000.00 to be paid into the trust account of the Respondent’s solicitor within seven (7) days;
(b)The sum of $12,000.00 to be paid to the trust account of the solicitor for the Respondent within thirty (30) days;
(c)The final sum of $12,100.00 to be paid within sixty (60) days or within seven (7) days after the completion of all of the works outlined above, whichever is the later.
...6. Upon performance of the terms of this Agreement the Applicants shall discontinue the proceedings in the Commercial and Consumer Tribunal.
...”
Applicants’ Submissions
The applicants submit that:
a.notwithstanding the terms of the mediation agreement were not notified to the Tribunal as having been complied with the Tribunal made orders noting settlement had occurred. The applicants’ application is brought on the basis that, notwithstanding the order of the Tribunal of 21 June, 2007, the proceeding was not in fact settled and the Tribunal remains seized of jurisdiction.
b.the effect of clause 6 of the Terms of Settlement is that: “The deed of settlement made performance of the terms of the deed a condition precedent to the resolution of the proceedings before the Tribunal”. The applicants argue that there has been non performance of the work agreed by the respondent to be carried out and they are therefore entitled to terminate the deed of settlement and revert to the original cause of action.
c.absent any evidence to the effect that the conditions precedent have been satisfied or that the termination of the deed of settlement by the applicants was unlawful, the original dispute remains on foot and the tribunal remains seized of jurisdiction.
d.in the alternative, a prima-facie case has been raised on the evidence by the applicants and the Tribunal remains seized of jurisdiction unless or until evidence is adduced by the respondents to contravene that position.
e.as to the order purportedly made by the Tribunal that by consent, the record is noted that the matter has settled between the parties, s50(5) of the CCT Act enables the Tribunal to correct, revoke or vary the order . The applicants submit that the Tribunal must revoke the order as it does not accurately reflect any consent of the parties or the terms of the deed of settlement. The applicants also say that on first blush the order provides no more than a note to the record and does not purport to make a determination binding as between parties.
The Tribunal does not propose to deal here with the further submissions made by the applicants with respect to inclusion of additional parties and delivery of certificates.
The Respondent’s Submissions
The respondent submits that:
a.the parties agree they entered into a deed of settlement on 18 June, 2007 and that “subject to the terms of that deed being completed, the deed would have the effect of concluding the litigation between the parties.”
b.by August, 2007 the respondent had carried out the vast majority of works under the deed of settlement, but ceased work on 26 June,2008 after the male applicant had allegedly harassed and verbally abused the respondent’s tradesmen.
c.The applicants may initiate fresh proceedings against the respondent for breach of the settlement agreement.
d.the respondent will suffer prejudice in defending himself in the original action because of a substantial lapse of time in circumstances where no good reason for the delay has been offered.
e.to grant the orders sought by the applicants would be rewarding the applicants for their tardiness in prosecuting their claim and would further prejudice the respondent’s prospects at trial, which is inconsistent with the objects of the QCAT Act and s50(5) of the CCT Act
f.the applicants are vexatiously conducting this proceeding and the application should be dismissed pursuant to s60(2) of the CCT Act.
g.terms of the settlement agreement remain valid and enforceable irrespective of whether all terms of the agreement have been carried out. Even if the applicants proceed with their application in this Tribunal, any claim must necessarily be limited to the works outlined in the settlement agreement. Further, it is premature to refer the matter to the Tribunal for determination when the settlement agreement provides for the Building Services Authority of Queensland to resolve disagreement between the parties with respect to the works set out in the agreement.
h.the Tribunal does not have power to determine a dispute arising out of the deed of settlement. If the applicant is permitted to proceed with the original dispute, the respondent will amend its defence to plead that the applicants are estopped from further prosecuting it because they frustrated the performance of the settlement agreement.
i.as to the effect of the order made by the Tribunal on 21 June, 2007, the respondent rejects the submission of the applicants that it was a mere note to the record and says that it was stated to be an order and was intended to bind the parties to the proceeding.
j.under s94 of the CCT Act the Tribunal may correct a decision made by it if an application to make that correction is brought within 14 days after the making of the decision. The Queensland Civil and Administrative Tribunal does not have the authority to amend the order 2.5 years after it was made.
The Applicants’ Reply
At paragraph 9 of the applicants’ submissions in reply, it is said that:
“It appears to be common ground as between the parties that the intention was that the CCT proceeding was to remain on foot until such time as the respondent complied with its obligation to complete the works stated in the agreement. It also appears to be common ground that the agreement has been terminated. What is not clear is whether this termination was by the applicant, or by the respondent.”
The applicants say that there has been no unreasonable delay on their part as they have been negotiating through the whole period over the matter. They also say that s94 of the CCT Act is not relevant as it relates to the correction of a decision by the Tribunal. The applicants simply seek to vacate a previous procedural order in lieu of further orders to assist in bringing the matters in issue to trial.
The applicants say that there is no evidence on which the Tribunal can proceed in relation to the question of prejudice and that is not relevant to the Tribunal’s consideration. Likewise there is no evidence of the applicants preventing the respondent from performing the agreement.
To the extent that the applicants understand the respondent to be raising the doctrine of substantial compliance in respect to the settlement agreement, they say that there is no evidence to suggest any voluntary acceptance by the proprietor of something less than that contracted for in the settlement agreement.
Finally, the applicants submit that the choice between continuing the present proceeding and suing upon the settlement agreement is a matter of election for the applicants.
The Law Relating to Accord and Satisfaction and the Tribunal’s Jurisdiction
As noted by the applicants, both parties appear to agree that the settlement agreement would only conclude the litigation between the parties if its terms were completed.
The respondent does however go on from that acknowledgement to assert that the applicants prevented completion of the terms and that the terms remain valid and enforceable despite not all terms being fulfilled.
The jurisdictional fact the Tribunal must determine is the meaning and effect of the Terms of Settlement. In this regard, the Tribunal’s first question is whether the Terms of Settlement was an accord and satisfaction, accord executory or accord and conditional satisfaction.
An accord executory and an accord and satisfaction were distinguished by Dixon J (Starke and McTiernan JJ agreeing) in McDermott v Black (1940) 63 CLR 161 (at 183- 184):
“The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of his cause of action. What he takes is a matter depending on his own consent or agreement. It may be a promise or contract or it may be the act or thing promised. But whatever it is, until it is provided and accepted the cause of action remains alive and unimpaired. The accord is the agreement or consent to accept the satisfaction. Until the satisfaction is given the accord remains executory and cannot bar the claim. The distinction between an accord executory and an accord and satisfaction remains as valid and as important as ever. An accord executory neither extinguishes the old cause of action nor affords a new one.”
Dixon J continued at 184-185:
“… of accord and satisfaction there are two cases, one where the making of the agreement itself is what is stipulated for, and the other, where it is the doing of the things promised by the agreement. The distinction depends on what exactly is agreed to be taken in place of the existing cause of action or claim. An executory promise or series of promises given in consideration of the abandonment of the claim may be accepted in substitution or satisfaction of the existing liability. Or, on the other hand, promises may be given by the party liable that he will satisfy the claim by doing an act, making over a thing or paying an ascertained sum of money and the other party may agree to accept, not the promise, but the act, things or money in satisfaction of his claim. If the agreement is to accept the promise in satisfaction, the discharge of the liability is immediate; if the performance, then there is no discharge unless and until the promise is performed.”
Since the decision in McDermott, a third species of agreement has been said to exist, an accord and conditional satisfaction. This was recognized by the Victorian Court of Appeal in Osborn v McDermott (2001) VSCA 94. The decision has been cited with approval in National Australia Bank Limited v Pollak (2001) FCA 1408, where it was quoted at paragraph 26:
“Thus, there are three possibilities, not two. First, there is the mere accord executory, which, on the authorities, does not constitute a contract and which is altogether unenforceable, giving rise to no new rights and obligations pending performance and under which, when there is performance (but only when there is performance), the plaintiff’s existing cause of action is discharged. Secondly, at the other end of the scale is the accord and satisfaction, under which there is an immediate and enforceable agreement once the compromise is agreed upon, the parties agreeing that the plaintiff takes in satisfaction of his existing claim against the defendant the new promise by the defendant in substitution for any existing obligation. Somewhere between the two, there is the accord and conditional satisfaction, which exists where the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance.
Where there is a mere accord executory, no suit can be maintained upon the compromise unless and until there has been performance, and then suit is ordinarily unnecessary. Upon default in performance, the plaintiff’s existing cause of action continues unaffected. With accord and satisfaction, either party may sue upon the compromise, but only on the compromise and for nothing else: the original cause of action has gone. Where there is accord and conditional satisfaction, the plaintiff is bound to await performance and accept it if tendered, but if there be no performance, then the plaintiff may proceed according to general principles called into play when any agreement is repudiated; the plaintiff may either treat the agreement (the accord) as at an end and proceed on his original cause of action; or he may, at his option, sue on the compromise agreement, in place of the original cause of action. Thus, the consequences should there be default in performance varies according to the case and... it would be surely in the best interests of the parties if their legal advisers saw to it, when settling litigation, that the intended consequence upon default was clearly expressed and not left to implication.”
It appears to be common ground that some work has been performed and some moneys paid in accordance with the terms of settlement. There is dispute about which party is responsible for failure to perform all the terms of the agreement.
Each party alleges that the other has repudiated the agreement.
The Terms of Settlement sets out in the recitals that the parties have reached an agreement on terms to settle the building dispute. Detailed lists of work to be performed are set out and a mechanism agreed for resolving disputes with respect to the works. The agreement on this mechanism, that is referral of disputes to an agreed third party or to the Building Service Authority of Queensland, suggests that in the event of some alleged non performance of the work or rectification of defects the agreement would not come to an end but would be referred for resolution.
The respondent has agreed to accept money in three tranches on given dates. If the applicants failed to pay one of the three tranches, it would be an absurd result that the respondent should lose his right to the money because the agreement is unenforceable as a result of non performance by the party obliged to pay the money.
For these reasons I think that the Terms of Settlement are properly characterised as an accord and conditional satisfaction. The Terms of Settlement were more than an accord executory. There were obligations immediately imposed upon both parties, for valuable consideration, which were sufficient to characterise the agreement as enforceable in itself, albeit that it did not thereupon discharge the original litigation.
I do not think in the light of clause 6 of the Terms of Settlement that there was an accord and satisfaction such that upon entry into the terms of settlement the applicants’ original action was extinguished. Both parties submissions express the understanding of the parties that the original action would subsist until the terms of settlement were performed. That understanding gives meaning to clause 6 and is consistent with a finding that the terms of settlement were an accord and conditional satisfaction.
The effect of finding that the Terms of Settlement was an accord and conditional satisfaction is that there are potentially remedies available to both parties in accordance with the general principles of repudiation. The original action is not however extinguished.
In this case, the applicants say that they have terminated the agreement and elect to pursue the original action.
The respondent says that if the applicants are able to pursue the original action, he will raise against them conduct on their part which allegedly frustrated his ability to perform the agreement.
Plainly there are issues of fact which will need to be determined as to which party is in default under the agreement, the reasons for that default and whether the conduct of either party amounts to a repudiation of the Terms of Settlement. These issues of fact are best dealt with in a hearing.
The question is whether these issues of fact can be determined by this Tribunal.
The cases referred to earlier in this decision, during the discussion of the issue before the Tribunal, are authority for the proposition as put by Member Moon in Suncool Pools relying on Anderton v Parks Horticultural that:
“If the mediation agreement has the effect of bringing to an end the original cause of action which the appellant might have had against the respondent, such that the appellant’s remedies arise entirely from the mediation agreement, then this Tribunal does not have jurisdiction to hear and determine any claim which the appellant might have pursuant to the mediation agreement...”
On the applicants’ case the terms of settlement have not brought to an end the original cause of action. On my finding that the terms of settlement are an accord and conditional satisfaction, the original cause of action is not brought to an end. The remedies sought by the applicants do not arise entirely from the terms of settlement. The remedies sought by the applicants arise out of the original domestic building dispute.
That being the case, it is possible that this Tribunal does have jurisdiction to hear the original action and the matters which flow from that, including any defence by the respondent relying upon the terms of settlement and his allegations that the applicants frustrated his performance of the settlement and should not be entitled to benefit from their actions by walking away from the settlement.
Anderton v Parks Horticultural Services Pty Ltd was an analysis of the jurisdiction of the Queensland Building Tribunal. The Commercial and Consumer Tribunal, whose functions and powers this Tribunal is exercising, took over the role of the Queensland Building Tribunal, accordingly the decision in Anderton’s case is still apposite.
In that case, the appellants commenced an application to the Queensland Building Tribunal seeking compensation for loss arising out of landscaping work. The respondent submitted that the dispute had been settled by an agreement. The Tribunal upheld this submission and held that it did not have jurisdiction to hear the dispute as the settlement agreement was not a contract for the performance of domestic building work.
McGill J. found that a dispute between the parties to a settlement agreement about that agreement is not one within the definition of “domestic building dispute”, merely because the dispute settled by the agreement was within that definition, or because it would be necessary to have regard to matters which occurred in the course of that earlier dispute, or in the performance of domestic building work, in order to resolve the dispute. A dispute about such an agreement was not sufficient to found the jurisdiction of the Queensland Building Tribunal.
McGill J. went on to find that the dispute in Anderton’s case was not limited to a dispute about a settlement agreement. He found that the dispute the subject of the case was a dispute in relation to a contract for the performance of domestic building work. He said that the appellants claimed they had been overcharged for work done under a contract, as a result of various breaches of that contract and that in some respects the work was defective, although that part of the claim was subsequently compromised. The respondent then raised the settlement agreement by way of defence.
His Honour said that the denial of a claim on the ground of prior compromise produces a dispute just as the denial of a claim on any other basis produces such a dispute. This was not a case where the appellants were seeking to enforce the settlement agreement, or seeking damages for breach of it. Rather the respondent was seeking to rely on the settlement agreement by way of defence and the appellants’ attacks on the settlement agreement were in substance by way of reply. The original application to the Tribunal clearly made a claim in relation to the performance of domestic building work, so the jurisdiction of the Tribunal was validly engaged. Although other matters in issue arose between the parties, that original claim never went away. To the extent that the claim became one to set aside the compromise agreement, that was so as to enable the original claim to be pursued.
Even if the applicants were seeking relief which was based on the existence of the agreement of compromise, His Honour found that s95(1) of the Queensland Building Services Authority Act, gave the Tribunal jurisdiction to resolve “any other matters at issue between the parties” to a domestic building dispute.
Finally, he said that:
“The underlying or fundamental claim being advanced by the appellants was one in relation to the performance of domestic building work ...and the fact that the respondent raised by way of defence a compromise of the dispute, which compromise the appellants attacked in various ways, did not mean that the Tribunal did not have jurisdiction to determine the validity of the attacks upon the compromise. The position might have been different if there had been no claim before the Tribunal based on the contract... or the work carried out pursuant to it, but that is unnecessary to decide. In my opinion the Tribunal did have jurisdiction to hear the whole matter which was before it.”
The Commercial and Consumer Tribunal, did not have through s77 of its empowering Act, the Queensland Building Services Authority Act 1991, a power to resolve “any other matters at issue between the parties”. That was a power given only to its predecessor, the Building Tribunal.
However, in my opinion, because we are not concerned here with a claim by the applicants for relief based on the existence of a compromise, this Tribunal does not need recourse to an “any other matters” power, such as was found in s95(1) of the Queensland Building Services Authority Act, to found its jurisdiction. The fundamental finding in Anderton’s case as to the jurisdiction of the Building Tribunal is applicable to this Tribunal. That is, where the underlying claim being advanced by the applicants is in relation to the performance of domestic building work, the Tribunal has jurisdiction to deal with that claim and any defence to that claim based on a compromise including claims by each party as to repudiation of the Terms of Settlement by the other.
In my opinion the mere presence of an alleged compromise in the matrix of facts and issues before the Tribunal does not automatically strip it of jurisdiction to deal with the matter. It would be different if the applicants’ remedies arise entirely from the compromise. In that case there would be no jurisdiction on the part of this Tribunal to deal with the claim. That is because the applicants’ claim would not be for the Tribunal to decide a building dispute, but rather to decide a claim for breach of a compromise agreement.
Effect of the 21 June, 2007 Order
I am of the view that the 21 June, 2007 order is no more than a mere noting of the record as to the fact of a settlement agreement being entered into by the parties.
The Chairperson of the CCT specifically refers to the applicants’ correspondence of 20 June, 2007. That letter makes it plain that discontinuance of the proceedings will be sought once the Terms of Settlement are performed. The applicants asked for the proceedings to be held in abeyance pending further advice as to the performance of the Terms of Settlement.
There is no reason to believe that the CCT was acting otherwise than in accordance with the request of the applicants in making the order of 21 June, 2007.
The Chairperson was not apprised of the contents of the Terms of Settlement. She did not order that the matter be disposed of in the terms of the settlement agreement, nor did she make the actual terms of the settlement agreement an order of the CCT, as one would expect if the CCT were finally disposing of the proceedings by that order. No leave was sought nor given to the applicants to withdraw the matter.
I am of the view that the 21 June, 2007 order was merely a procedural note to the file with no consequences for the parties arising out of the making of the note.
To make that clear beyond doubt I intend to vary the order in the terms set out below.
Findings and Orders
I find that the Terms of Settlement made on 18 June, 2007 were an accord and conditional satisfaction, which did not have the effect of extinguishing the original application. The applicants have elected to pursue their original application and seek to make certain amendments to that application.
I find that the Tribunal has jurisdiction to hear the applicants’ claim based on the original application and if leave is later given based on an amended application.
For the reasons set out in this decision I find that this Tribunal has jurisdiction to hear the respondent on his arguments by way of defence (but not limited to those arguments) that:
1.the Terms of Settlement should bind the parties.
2.the applicants’ conduct has prevented the respondent from fully performing the Terms of Settlement;
3.the applicants may initiate fresh proceedings against the respondent for breach of the settlement agreement.
Similarly, I find that he applicants are entitled to be heard by way of reply in relation to these matters.
I decline to find that the dispute to be heard by this Tribunal should be limited to the works outlined in the settlement agreement. It is the original application which is to be prosecuted. It may be that, through the Tribunal’s procedures, including a compulsory conference, the ambit of the original dispute can be narrowed.
I am not satisfied on the evidence before me that the respondent has been prejudiced in his ability to defend the applicants’ claim by the delay in prosecuting the claim.
In relation to the CCT Order of 21 June, 2007, I find that it was merely a procedural note to the file with no consequences for the parties arising out of the making of the note, however, to put the matter beyond doubt the following Order is made at the Tribunal’s initiative pursuant to s50(5) of the CCT Act.
I note that no order has been made as to legal representation. The parties should refresh that application as part of any directions hearing in the proceedings.
I order that:
1.the proceeding be listed for directions for the ongoing conduct of the proceeding to a hearing;
2.the order of the Commercial and Consumer Tribunal made on 21 June, 2007 be varied to read:
“Upon consideration of correspondence received on behalf of the applicants dated 20 June, 2007 and noting that the parties attended a private mediation on 18 June, 2007 the Commercial and Consumer Tribunal makes the following order:
- The record is noted that parties have entered into Terms of Settlement, dated 18 June, 2007.
- The proceeding is held in abeyance pending receipt of advice that the Terms of Settlement are performed and leave is given for the filing of a Notice of Withdrawal.”
- costs be reserved to the final hearing of this proceeding.
2
1
0