London v Oliver

[2013] QCAT 529

CITATION: London v Oliver [2013] QCAT 529

PARTIES:	Rolene London (Applicant)
v
Paul Oliver (Respondent)

APPLICATION NUMBER: BDL190-13

MATTER TYPE: Building matters

HEARING DATE: 14 October 2013

HEARD AT: Brisbane

DECISION OF: Bevan Hughes, Member

DELIVERED ON: 14 October 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Applicant’s request for a decision by default is refused.

2.    The compulsory conference listed in Southport at 9.30am on 14 November 2013 is confirmed.

CATCHWORDS:

BUILDING MATTERS - Decision by default – liquidated amount – Response filed – interests of justice

Queensland Civil and Administrative Tribunal Act 2009 ss 50 and 51
Queensland Civil and Administrative Tribunal Rules 2009 r 44

Lacarsha Constructions Pty Ltd v. Sharpe [2011] QCAT 661

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

1. Ms Rolene London wants the Tribunal to decide her application against Mr Paul Oliver in default of Mr Oliver filing a response.

2. Ms London claims that Mr Oliver should pay her $46,254.09 plus interest and costs for not properly performing building work for her.

Issues

1. The issues for me to decide are:

   - What led to Ms London requesting a decision in default?

   - Are these events enough for Ms London’s claim to be decided in default?

What led to Ms London requesting a decision in default?

1. On 2 August 2013, Ms London filed her original application with the Tribunal.

2. On 5 August 2013, the application was given to Mr Oliver through his partner.[1]

   [1]        Affidavit of Service sworn by Rolene London on 6 August 2013.

3. On 9 August 2013, the Tribunal made directions, including that Mr Oliver file and serve his response by 30 August 2013.

4. On 19 August 2013, Mr Oliver emailed the Tribunal registry requesting “more time to put my case and details together… and forward to you by the end of September.”[2]

   [2]        Email Paul Oliver to QCAT dated 19 August 2013.

5. On 23 August 2013, Mr Oliver informed the Tribunal registry that he will attempt to file his response by 30 August 2013.

6. On 30 August 2013, Mr Oliver filed his response and counter-application.

7. On 11 September 2013, Ms London filed her request for a decision by default.

8. On 16 September 2013, Ms London telephoned the Tribunal registry to advise she had received Mr Oliver’s response and counter-application.

Are these events enough for Ms London’s claim to be decided in default?

1. Mr Oliver had until 30 August 2013 to file and serve his response.[3]   

   [3]        QCAT Directions dated 2 August 2013, paragraph 1.

2. Mr Oliver did so and before Ms London filed her request for a default decision. This alone is sufficient to refuse Ms London’s request:

   It is only possible to obtain a decision by default in the absence of a response to the application. An application and counter claim had been filed… prior to the lodging of that application for default judgement. The application was therefore refused.[4]

   [4]        Lacarsha Constructions Pty Ltd v. Sharpe [2011] QCAT 661 at paragraph [7].

3. Mr Oliver complied with the Tribunal’s directions. There is no basis for a default decision.

4. It is therefore in the interests of justice that the matter be determined on its merits and proceed to a compulsory conference and if necessary, a full hearing.

What are the appropriate Orders?

1. The appropriate Orders are:

   1.The Applicant’s request for a decision by default is refused; and

   2.    The compulsory conference listed in Southport at 9.30am on 14 November 2013 is confirmed.