Luscombe v Russell

[2013] QCAT 53

CITATION: Luscombe and Anor v Russell and Anor [2013] QCAT 53

PARTIES:	Mr Tony Jason Luscombe Luscombe Builders Pty Ltd
v
Mr Cam Russell Mrs Amanda Russell

APPLICATION NUMBER: BDL145-12

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 4 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The application for an extension of time is granted.

2.    The application for miscellaneous matters to strike out is dismissed.

3.    The directions hearing listed at 1:30 pm on 6 February 2013 is cancelled.

4.    The directions hearing is re-scheduled at 2:30 pm on 20 February 2013.

CATCHWORDS:

BUILDING DISPUTE – APPLICATION TO STRIKE OUT – where non-compliance with tribunal order – where application to extend time filed – whether reasonable excuse for delay

Queensland Civil and Administrative Tribunal Act 2009 ss 3(b), 48

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Luscombe Builders Pty Ltd has a claim under a building contract for $91,983.54. It also claims “costs” of $131,295. Mr and Mrs Russell have a counterclaim for defective work and delay costs.

2. On 3 October 2012, I directed the parties to file and serve statements of evidence by particular dates.  Luscombe Builders was to file and serve its material by 24 October 2012.

3. On 24 October 2012, Luscombe Builders applied for an extension of time for the filing of material to 19 November 2012.

4. On 21 November 2012, Mr and Mrs Russell applied to strike out Luscombe Builders’ claim. They submitted that the company has not filed any material in compliance with the order; there was no dispute that there are existing Category 1 defects; and the dispute must be heard expeditiously.

5. On 22 November 2012, Luscombe Builders applied for an extension of time in which to file its material.

6. Section 48 of the Queensland Civil and Administrative Tribunal Act2009 allows the tribunal to strike out a claim if a party is not complying with a tribunal order without reasonable excuse. In determining whether to exercise that discretion, the tribunal must have regard to: the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures; that party’s capacity to understand and act on the tribunal’s directions; and whether the party is acting deliberately.

7. In its application of 22 November 2012, Luscombe Builders gave reasons for its request for more time. It wanted to make sure all of the paperwork was completed correctly. Because it had received legal advice, Luscombe Builders now understood that more documentation was required and collecting that material had taken time. Luscombe Builders also asserted that it was taking time to get statutory declarations from witnesses.

8. I am satisfied that Luscombe Builders does have a reasonable excuse for its delay. The application demonstrates that Luscombe Builders was not familiar with the tribunal process. It has taken action, in getting legal advice, which has enabled it to understand the process and prepare more thoroughly.

9. The tribunal has an obligation to deal with matters in a way that is quick and economical[1]. However, it must also deal with matters in a way that is accessible, fair and just.

   [1]        Queensland Civil and Administrative Tribunal Act2009, s3(b)

10. Homeowners are often frustrated at the time it takes to ensure a proceeding is ready for hearing. Experience has demonstrated, however, that parties’ interests are not well-served by hastily prepared documents or arguments. The legislation’s exhortation for quick proceedings must, at least in building cases, be subordinate to the requirement that parties have an adequate opportunity to prepare material.

11. The tribunal is slow to impose a “one strike and you’re out” rule. Most parties who appear in building cases have no legal experience or advice and do not always understand fully the tribunal processes. In most instances, the tribunal will give a defaulting party one more opportunity to comply with directions. Therefore, in my directions extending the time for Luscombe Builders to file material, I have added a further direction that, if it does not comply with the extended timeframe, its application will be struck out. I am satisfied that this provides an appropriate balance between the need for quick procedure and the obligation to deal with matters in a way that is fair and accessible.

ORDERS

1. The application for an extension of time is granted.

1. The application for miscellaneous matters to strike out is dismissed.

1. The directions hearing listed at 1:30 pm on 6 February 2013 is cancelled.

1. The directions hearing is re-scheduled at 2:30 pm on 20 February 2013.