Lu v Emerson (No 2)
[2024] QCAT 494
•4 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Lu v Emerson (No 2) [2024] QCAT 494
PARTIES:
YI LU (applicant)
v
LEIGH EMERSON (respondent)
APPLICATION NO/S:
REO019-24
MATTER TYPE:
Building matters
DELIVERED ON:
4 November 2024
HEARING DATE:
On the papers
DECISION OF:
Member Taylor
ORDERS:
1. The application for reopening, correction, renewal or amendment filed 19 July 2024 is dismissed.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – where a home owner contracted with a brick & block-laying trade contractor for the construction of hard-landscaping works - where there was no written contract between the parties – where under statute the contract was of no effect – where the owner claimed damages – where the decision in the first instance was that the owner could not pursue a claim for breach of contract in the absence of a contract that was of effect – where the owner sought to have the proceeding reopened asserting he had evidence of the formation of the contract not previously provided such that it showed the contract was of effect
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY - where a home owner contracted with a brick & block-laying trade contractor for the construction of hard-landscaping works - where there was no written contract between the parties – where under statute the contract was of no effect – where the owner claimed damages – where the proceeding at first instance was determined on the papers - where the decision in the first instance was that the owner could not pursue a claim for breach of contract in the absence of a contract that was of effect – where the owner sought to have the proceeding reopened asserting he had evidence of the formation of the contract not previously provided such that it showed the contract was of effect – whether the owner was prejudiced by way of the proceeding being determined on the papers – whether the owner had new evidence – whether the owner would suffer a substantial injustice - where the owner had fundamentally misunderstood the reasons for decision in the first instance
Electronic Transactions (Queensland) Act 2001 (Qld), s 14
Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B s 14
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32, s 138
Chandra v Queensland Building and Construction Commission [2014] QCA 335
King Developments Pty Ltd v Mayne [2015] QCATA 29
Lu v Emerson [2024] QCAT 249R (West) v Parole Board [2005] 1 WLR 350
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 14 June 2024 I gave my decision and reasons therefore in terms of the applicant’s Application for a Domestic Building Dispute filed 22 December 2021. [1] (the Original Decision)
[1]See Lu v Emerson [2024] QCAT 249.
On 19 July 2024, the applicant filed an Application for Reopening of that proceeding wherein he asserted:
(a)he did not appear at the hearing and had a reasonable excuse for not doing so, because no hearing took place; and
(b)he would suffer a substantial injustice of the proceeding was not reopened because significant new evidence has arisen that was not reasonably available when the proceeding was first heard and decided.
In support of those assertions, in his application and his submissions which followed it in satisfaction of directions I gave for same,[2] he states:
(a)The scheduled hearings were cancelled, the first without explanation, the second as a result of the responded not appearing / attending; and
(b)The asserted ‘new’ evidence is a copy of SMS messages that is said to show that a contract existed between the parties, and in the absence of a hearing he was “unable to fully discuss and clarify the contractual details”.
[2]Those are the directions issued 28 August 2024.
As to the asserted substantial injustice, he submits:
Upon QCAT’s request for supporting documents, we submitted a document from the builder that he told us was used as a contract. However, QCAT determined it did not establish the essential elements of a contract and based their decision on this finding. Whilst we appreciate the Tribunal’s examination of the case, we believe this new evidence demonstrates the existence of an effective contract that warrants further consideration. If a hearing had been conducted, we should have demonstrated this. Our objective is only to ensure the contracted work is completed, including addressing the damages inflicted on our property by the builder and recovering the additional expenses incurred in hiring a replacement contractor.
The respondent did not file any material or otherwise contact the Tribunal in response to the application for reopening.
The Relevant Law
Under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), a party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
A ‘reopening ground’ means:[3]
(a)the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b)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]QCAT Act - Schedule 3.
Under s 28 of the QCAT Act, the procedure for a proceeding is at the discretion of the Tribunal, subject to that Act, an enabling Act, and the rules. However in all proceedings the Tribunal must act fairly and according to the substantial merits of the case, and in conducting a proceeding, the Tribunal must, inter-alia:
(a)observe the rules of natural justice;
(b)act with as little formality and technicality and with as much speed as the requirements of the Act, an enabling Act, or the rules, and a proper consideration of the matters before the Tribunal permit; and
(c)ensure, as far as practicable, that all relevant material is disclosed to the Tribunal to decide the proceeding with all the relevant facts.
Under s 32 of the QCAT Act the Tribunal may, if appropriate, conduct all or a part of a proceeding entirely on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.
Discussion on the application in terms of the relevant law
The applicant’s application for reopening is misconceived. He has fundamentally misunderstood the reasons for the Original Decision and the premise for it. It must follow his application is dismissed.
The asserted absence of a hearing and thus the applicant having not appeared
As to his submission that a hearing did not place, whilst that is correct, his submissions about that fact are not correct. The ‘hearings’ to which he refers as having been cancelled were directions hearing within the proceeding, not a substantive hearing of the application as made.
As I identified it in my reasons for the Original Decision: [4]
(a)on 19 February 2024, this Tribunal directed that:
(i) the time for the parties to comply with earlier comprehensive directions for the filing of material was extended, having been previously extended on numerous occasions;
(ii) the matter was to be determined on the papers as permissible under s 32 of the QCAT Act;
(b)the applicant filed his statement dated 15 May 2024; and
(c)the respondent did not file any material.
[4]Lu v Emerson [2024] QCAT 249;[27] and [28].
Within his statement, nor otherwise by any communication to this Tribunal subsequent to that direction being given, the applicant did not seek an oral hearing. Accordingly the determination of his application for relief against the respondent proceeded on the papers.
In the Queensland Court of Appeal decision in Chandra v Queensland Building and Construction Commission, (Chandra) it was said by Peter Lyons J:[5]
Often it will be appropriate to determine applications, such as those which were being decided by the Senior Member, without an oral hearing. However, in a particular case it may not be appropriate to do so, or to continue to do so. It will be (or become) inappropriate, (sic) if that would deny a party a fair opportunity to be heard.
[5][2014] QCA 335; [61] with whom North J expressly agreed at [93].
Therein, North J also observed:[6]
But in my view an oral hearing was not the necessary condition in order to accord the applicant natural justice, but one of alternative modes of procedure that might have been adopted to avoid a breach of s 28(3)(a). For example, in the circumstance of a determination on the papers the Senior Member might have alerted the applicant to the issue that was troubling her and invited him to make further submissions or provide further evidence by correspondence. While it may be that an oral hearing in many circumstances might be the more flexible or direct means whereby a decision maker might raise matters and afford a party the opportunity to address a troubling issue this could also be done, in the context of a determination on the papers, by raising these issues through written directions and correspondence and often at less cost to all.
[6]Ibid;[95].
In R (West) v Parole Board, a decision of the House of Lords raised before the Court of Appeal in that matter, it was observed: [7]
There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify the actions said to be a breach of licence conditions, or where the officer's assessment needs further probing, fairness may well require that there should be an oral hearing. If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the board should be predisposed in favour or an oral hearing.
[7][2005] 1 WLR 350; [50] per Lord Slynn of Hadley.
Peter Lyons J considered that such may be regarded as identifying considerations relevant to determining whether or not a failure to accord an oral hearing amounts to a breach of the requirements of natural justice in the case then before the Court.[8]
[8][2014] QCA 335; [64].
In the Appeal Tribunal’s decision of King Developments Pty Ltd v Mayne, having referred to Court of Appeal decision in Chandra, the Appeal Tribunal expressed these views relevant to s 28 and 32 of the QCAT Act:[9]
In making a decision about the type of hearing, the tribunal must balance the objective to deal with matters in a way that is economical informal and quick against the requirement to act fairly and observe the rules of natural justice.
The absence of a request for an oral hearing does not mean that the tribunal can, without further consideration, proceed with a hearing on the papers. The Court of Appeal has made it clear that the method of proceeding is a matter for the tribunal.
[9][2015] QCATA 29;[5].
Therein, the learned Senior Member determining the appeal also observed:[10]
There was a significant dispute about the facts of the case. The member’s determination required him to make findings of credit about various conversations between Mr King and Mr Mayne. That task is almost impossible without the benefit of oral evidence and the ability to cross-examine.
[10]Ibid;[8]. Footnotes omitted.
In the matter as it was before me initially, the following are relevant in terms of that line of authority:
(a)There were no significant disputes about the facts of the case. Moreover, there was no dispute given the absence of any material having been filed in response by the respondent;
(b)There was nothing before me which required findings of credit to be made;
(c)The applicant had been afforded every opportunity to put all relevant material before this Tribunal, an opportunity he took up in the filing of his material on 15 May 2024.
(d)There was nothing contained in the applicant’s material that was troubling me in terms of the issues to be determined and the legal premise for that determination such that I required further submissions from, or discussions with, the applicant or the respondent; and
(e)Given the fundamental issue at law, to which I refer under the next heading and discuss again, albeit briefly, for the applicant’s benefit, even absent a request from the applicant or the respondent for an oral hearing I had no doubt that the application could be fairly dealt with on the papers.
For all these reasons, it may readily be said that the decision made by this Tribunal to determine the applicant’s original application on the papers was an appropriate decision to have made, and me having proceeded to conclude the proceeding as it was before me on the papers was appropriate in all the circumstances. It may also be readily said that, had the matter proceeded to an oral hearing, there was nothing further the applicant could have said in terms of the material he had filed, an issue I return to briefly under the next heading, that would have caused me to reach a different outcome on his original application. The provisions of s 28 of the QCAT Act were satisfied.
Thus, there is no substance to the applicant’s argument in this application in his efforts to have the proceeding reopened as to the absence of an oral hearing being conducted.
The asserted ‘new’ evidence
In the current application, the applicant asserts he has: [11]
… new written evidence in the form of SMS messages that not only meet the essential requirements for contract formation but also demonstrate the contract’s execution.
[11]This is as contained in his submissions filed in response to my directions of 28 August 2024.
As I noted it in my reason for the Original Decision:
(a)No written contract document was signed by the parties. No such document was even prepared. The extent to which the agreement was evidenced in writing was a written quote document from the respondent dated 5 May 2021, a follow up communication on 10 May 2021, and what appears to be an acceptance of that quote by payment of the required deposit on 21 May 2021.[12]
(b)As to that ‘follow up material’, on the material as it was before me I was unable to identify the mode and author(s) of the communication, but from my reading of it and the context in which it was referred to in the applicant’s material I inferred it was an e-mail or SMS text exchange between the respondent and the applicant or his wife on his behalf;[13] and
(c)In terms of the relevant law, the contract was required to have been in written form, dated, and signed by or on behalf of each of the parties to it, and in the absence of it being so the contract is of no effect, the consequence being that the parties are unable to enforce any rights or obligations arising from the agreement for the works even though the parties could show a verbal contract had formed.[14] and
(d)In the absence of the contract being of effect, the applicant could not proceed on a cause of action for breach of contract.[15]
[12]Lu v Emerson [2024] QCAT 249;[13]. Footnotes omitted.
[13]Ibid – at Footnote 4 therein.
[14]Ibid;[36].
[15]Ibid;[44].
The asserted ‘new evidence’ now relied on by the applicant does not change what I said therein. I explain why.
Firstly, I do not consider it to be ‘new’ evidence. It is nothing more than a version of the ‘follow up material’ I referred to earlier, at best giving clarity as to the mode of communication of that which was already before the Tribunal as I referred to is as being the ‘follow up material’.
Secondly, it does not demonstrate the existence of a contract which has effect in the manner required by s 14(2) of Schedule 1B to the Queensland Building and Construction Commission Act 1991 (Qld) (Schedule 1B). Even if it could be successfully argued that the SMS message satisfied the requirement of writing, and in turn proof of the date on which the message was sent satisfied the requirement for it to be dated, on the material the applicant now relies on to support his application for reopening, it still does not satisfy the requirement for the contract to have been ‘signed’ by the parties. The mere exchange of SMS messages does not get that far so as to satisfy the requirements of s 14(2) of Schedule 1B. This is because it cannot, of itself, satisfy the requirements of s 14 of the Electronic Transactions (Queensland) Act 2001 (Qld) (Electronic Transactions Act),[16] being the ‘requirement for signature’. At the very least, there is no evidence presented by the applicant that either he or the respondent consented, such being an express requirement of s 14 of the Electronic Transactions Act, to the requirement for a signature to be given by each to the other as is the requirement of s 14(2) of Schedule 1B.
[16]The applicant raised this legislation in his submissions given in this proceeding, however referred to it merely on the basis that the relevant SMS and subsequent actions of both parties “fulfills the essential elements of contract formation under Queensland law and the Electronic Transactions Act.”
It is for these reasons the contract was of no effect. But that does not mean a contract was not formed, as appears to be the applicant’s understanding of my reasons for the Original Decision. On my review of those reasons for the purposes of deciding this current application for reopening, I accept that my reasons therein could have and should have been clearer on this point. Whilst I discussed the issue within those reasons, I did not express it as a separate and succinct finding that relevant facts and circumstances did not comply with the requirements of s14(2) of Schedule 1B. Nor did I raise the relevance and application of the Electronic Transactions Act. Had I done both of these I expect that the applicant may not have had the misunderstanding.
But it must now be said for completeness and certainty for the applicant’s benefit, I did not conclude that no contract had been formed. My conclusion was that at best the contract was an ‘oral contract’[17] with me expressing this conclusion:[18]
The consequence is that the parties are unable to enforce any rights or obligations arising from the agreement for the works even though the parties could show a verbal contract had formed.
[17]Lu v Emerson [2024] QCAT 249;[1], [2], [6], and [31].
[18]Ibid;[36]. Footnote omitted.
At no time did I make any finding that the ‘essential elements of a contract’ had not been established, such being one of the premises for the current application for re-opening. My finding was that to the extent a contract had been formed between the parties, as provided for under s 14(10) of Schedule 1B in the absence of the requirements of s 14(2) therein having been satisfied the contract was of no effect.
Once again it must be said, the asserted ‘new evidence’ now relied on by the applicant does not change that.
Conclusion
It is here that the applicant’s application for reopening is misconceived. Possibly as a result of the absence of me having been clearer in my reasons for the Original Decision, he has been left uncertain as to the premise for my conclusion on his application for relief as a consequence of the asserted breach of contract. Put simply, for the reasons I have given herein, there is no substance to the applicant’s application for re-opening.
There is no issue arising from the fact of a hearing not taking place and thus him not having appeared at one. Nor could it be said, if it was otherwise his argument, that he had been denied procedural fairness by way of an absence of an oral hearing but rather a determination on the papers.
Nor is there any issue arising as to there being ‘new evidence’ that if not presented before the Tribunal he would suffer a substantial injustice. The evidence he now presents is nothing of substance more than he previously presented, and to the extent it might be said to have provided some further clarity in that original evidence it does not demonstrate in any way compliance with s 14(2) of Schedule 1B that would avoid the consequences of s 14(10) therein.
It thus follows that the application for reopening must be dismissed. An order was made to that effect.
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