Lyons v Queensland Building Services Authority and Dreamstarter Pty Ltd t/a Protec Builders
[2011] QCAT 150
•13 April 2011
| CITATION: | Lyons v Queensland Building Services Authority and Dreamstarter Pty Ltd t/a Protec Builders [2011] QCAT 150 |
| PARTIES: | Mr Andrew Lyons |
| v | |
| Queensland Building Services Authority and Dreamstarter Pty Ltd t/a Protec Builders |
| APPLICATION NUMBER: | GAR150-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 8 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Kerrie O'Callaghan, Senior Member |
| DELIVERED ON: | 13 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Applicant’s application for miscellaneous matters seeking termination of a stay order made 12 August 2010 is dismissed. [2] Each party pay their own costs of the miscellaneous application. |
| CATCHWORDS: | Termination of stay order |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Lyons |
| RESPONDENT: | Queensland Building Services Authority and Dreamstarter Pty Ltd t/a Protec Builders represented by Winchester, Young & Madden |
REASONS FOR DECISION
Introduction
The applicant filed an application for miscellaneous matters on 8 November 2010 seeking the following orders:-
That the stay order made 12 August 2010 be set aside or varied so that it expires from the date of filing this application or such other date as may be fixed by the Tribunal.
Such further or other order as the Tribunal may consider appropriate.
The QBSA pay the applicant’s costs.
The application was heard on 8 December 2010. The parties were given the opportunity to file written submissions which have now been filed and considered.
Background to application
The applicant (Mr Lyons) as homeowner and the second respondent (Dreamstarter) as builder were parties to a domestic building contract.
Mr Lyons terminated the building contract.
Mr Lyons made a claim to the QBSA for assistance under the insurance scheme.
On 19 April 2010 the QBSA refused the claim on the basis that they were of the opinion that the purported termination of the contract by Mr Lyons was not due to Dreamstarter’s default.
Mr Lyons filed a review of this decision on 17 May 2010 (these proceedings).
Dreamstarter commenced a domestic building dispute application against Mr Lyons on 16 July 2010 (BDL222-10) seeking:
A declaration that Dreamstarter had lawfully terminated the contract by accepting Mr Lyons repudiation of same.
An order that Mr Lyons pay Dreamstarter $98,435.00 being monies owing under the contract and damages for breach of contract.
Mr Lyons filed a defence and counterclaim seeking a declaration that he had terminated the contract and other orders.
[10] On 12 August 2010 these proceedings came on for a directions hearing. At that directions hearing orders were made:
(a)joining Dreamstarter to the proceeding; and
(b)granting a stay of these proceedings until the outcome of BDL222-10.
[11] As well as filing this application seeking termination of the stay Mr Lyons has also applied for leave to appeal the decision of the Tribunal granting the stay. Submissions have been filed in that application for leave to appeal.
Submissions
[12] Mr Lyons filed extensive material including submissions and affidavits and made oral submissions.
[13] The QBSA did not file any formal material but did make oral submissions at the hearing and forwarded correspondence opposing the application.
[14] Dreamstarter filed written submissions opposing the application to which Mr Lyons has now responded.
Issues to be considered in this application
[15] It is accepted by the parties that the Tribunal has power to terminate the stay.
[16] It also appears to be accepted that in order to terminate the stay there would need to be a change of circumstances from when the stay was granted.[1]
[1] Para 6.1 Dreamstarter’s submission QBSA letter to QCAT 26 October 2010.
[17] Mr Lyons in his submissions in response to Dreamstarter’s submissions refers to the case of Rajski and Raybos Australia Pty Ltd v Carson and Tectran Corporation [2002] NSWCA 51 citing the following paragraph:
“The law has always been and still is that the court has power and almost a duty to review all interlocutory orders, other than those which decide the rights of parties, so they may be varied or rescinded whenever circumstances change sufficiently.”
[18] Mr Lyons maintains that there has been a sufficient change in circumstances since the stay to warrant its termination. The respondents disagree.
[19] Mr Lyons has filed voluminous material in the application and has also sought to rely on the material which he has filed in the application for leave to appeal the decision to grant the stay.
[20] There has been a blurring in Mr Lyon’s material between the issues of whether the stay should have been made in the first place and whether it should now be lifted.
[21] The two applications are separate. Arguments raised by Mr Lyons in this application, for example, that the stay was gained by ambush; discretion as to whether the stay should be granted; no serious question to be tried or appropriate grounds for a stay are more properly the subject of his application for leave to appeal the order.
[22] The issue I need to consider is whether the circumstances have changed since the granting of the stay warranting its termination.
Have circumstances changed?
[23] Mr Lyons points to the following as circumstances which he says have changed since the stay was ordered:
a)QBSA has refused to participate in the settlement conference with Dreamstarter and Mr Lyons.
b)QBSA has refused to consent to Mr Lyons making offers to Dreamstarter.
c)QBSA has refused to attempt to narrow the issues with respect to quantum.
d)QBSA has refused Mr Lyons consent to remedy unsafe aspects of the incomplete work or to complete the work generally.
[24] The QBSA in their written correspondence made the point that these circumstances are not new and indeed do not tip the balance against maintaining the stay.
[25] Dreamstarter submits that there has been no change in circumstances and even if the stay is lifted the issues raised by Mr Lyons will not change.
[26] From the submissions made orally by Mr Lyons at the hearing it appears his main concern in having the stay lifted was to facilitate a final resolution of the dispute between himself, Dreamstarter and the QBSA.
[27] QBSA made their position quite clear at the hearing in relation to this prospect. They say even if the review was not stayed they would not be in a position to resolve the dispute until the issue of the validity or otherwise of the contract termination was determined by the Tribunal. They will not consent to the resolution of the dispute between Dreamstarter and Mr Lyons pointing out that in doing so the relevant provisions of the insurance policy would result in the release of the QBSA’s liability.
[28] Whilst of course it is the objective of the Tribunal to have disputes resolved as quickly as possible, it is apparent that the most effective way to have this matter resolved is for the Tribunal to make a determination on the validity of the termination of the contract.
[29] These circumstances are not new and would not be affected by the lifting of the stay.
[30] If the stay were lifted there would be two different applications on foot to determine the issue of the validity of the termination of the contract. Dreamstarter is a party to both disputes. As was pointed out in their submissions, if the stay is lifted, Dreamstarter will be faced with 2 proceedings seeking the same relief wherein it would have to replicate the evidence adduced in relation to the termination of the contract in both proceedings. This would have the potential of leading to the Tribunal having to consider the same issue twice.
[31] If the matters were consolidated, as suggested by Mr Lyons, the QBSA would unnecessarily be involved in the domestic building dispute.
[32] Relevant to this issue is the undertaking given by the QBSA during the course of the application. The QBSA has undertaken to abide the decision of the Tribunal on the issue of the validity or otherwise of the termination of the contract by Mr Lyons. They submit that this may well lead to a resolution of the review proceedings.
[33] They also submit that Dreamstarter has sought an order for monies allegedly due under the contract and that the determination of this issue by the Tribunal would narrow the issue of quantum of any entitlement under the insurance scheme.
[34] My Lyons argued that the issue of quantum could in fact be settled if the stay was lifted. The QBSA submitted that this would not be the case because even if the claim was accepted by the QBSA they are nonetheless required to seek tenders for carrying out the work and the quantum depends on the cost of work established by the tenders.
[35] Mr Lyons pointed out that in his view QBSA’s undertaking does not go far enough as it does not determine liability in respect of the claim and does not undertake to accept any determination of quantum.
[36] This is correct and for the reasons set out above the QBSA is not in a position to give an undertaking as to quantum.
[37] Even if the QBSA does not undertake to accept the claim on the undertaking given it still means that at the very least there would be no need to litigate the termination of the contract point in these proceedings if Mr Lyons is successful in BD222-10. That would not be the case if the stay was lifted.
[38] Mr Lyons also raises the issue of costs. He maintains that the stay causes an injustice because of his loss of right to seek from the QBSA the costs of establishing his rights under the policy.
[39] His concern is that if successful in BDL222-10 he will obtain what may be a worthless costs order against Dreamstarter but would be unable to obtain those costs against the QBSA.
[40] I do not consider this to be a change in circumstances warranting a lifting of the stay order.
[41] The QCAT Act is quite clear on the issue of costs in this jurisdiction. The starting point is section 100 which provides that each party must bear their own costs of proceedings in QCAT.
[42] Costs may be awarded if the Tribunal considers it in the interests of justice to make that order. If at the final resolution of these proceedings and BDL222-10 the Tribunal finds that it is in the interests of justice that cost orders be made (in either proceedings) then the Tribunal has power to do so.
[43] BDL222-10 has progressed since the hearing of this application. It would be in the parties interest to have that matter progressed and determined so that all of the issues between the parties can be resolved.
[44] I order that the application for miscellaneous matters seeking the termination of the stay is refused.
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