MacKrell Building Trust T/A Phillip MacKrell Builder v Sterling - [2010] QCAT 630

CITATION:

MacKrell Building Trust T/A Phillip MacKrell Builder v Sterling [2010] QCAT 630

PARTIES:	MacKrell Building Trust T/A Phillip MacKrell Builder Phillip MacKrell
v
Mark & Katrina Sterling

APPLICATION NUMBER:

BD462-09

MATTER TYPE:

Building matters

HEARING DATE:

7 December 2010

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

8 December 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondents have leave to amend the amended defence and counterclaim as follows:

(a) Paragraphs 16(f) to (m);

(b) Paragraph 17;

(d) Paragraph 22 and 23

(e) Paragraph 26;

(f) Paragraph 31

in accordance with the proposed Further Amended Defence and Counterclaim being exhibit (“BJM1”) to the affidavit of Mr Miller filed 27 November 2010.

2. The application to transfer the proceeding to the District Court of Queensland is dismissed.

CATCHWORDS :

Amendment to pleadings; where no explanation for delay; case management principles; sections 3, 4 and 28(3) of the QCAT Act considered; Aon Risk Services Australia Limited v Australian National University (2009) HCA 27 followed.

APPEARANCES and REPRESENTATION:

APPLICANT:	MacKrell Building Trust T/A Phillip MacKrell Builder Phillip MacKrell; Applicants represented by Ms K. Schwede, solicitor Queensland Lawyers for each applicant
RESPONDENT:	Mark & Katrina Sterling represented by Mr Carrigan of counsel, instructed by Quinlin Miller and Treston solicitors.

REASONS FOR DECISION

This proceeding is a typical building dispute in that the applicant builder is claiming $14,919.68 for monies due and owing under a building contract, and the respondents/homeowners deny any monies are owing, and counterclaim damages for the cost of rectification for defective and incomplete building work.

The proceeding was commenced with the filing of an application in the former Commercial and Consumer Tribunal on 26 October 2009 with a defence and counterclaim being filed on 17 November.

After 12 months of preparing the matter for hearing which involved active case management by this Tribunal, the respondents, on 22 November 2010 filed an application seeking leave to “file and serve a Second Further Amended Defence and Counterclaim” and a consequential direction that the application be remitted to the District Court.

The amendments sought related to claims made pursuant to a breach of section 52 of the Trade Practises Act and damages pursuant to section 87 of that Act. This proposed new cause of action is pleaded against both the first and second applicant. There are also additional claims for monies payable to the respondents by the applicants due to their unjust enrichment and for restitution. The total damages now sought in respect of these new causes of action is in the sum of $430,000.00[1].
[1] Affidavit of Brockwell Miller sworn 19 November 2010 exhibit 1 page 35

The respondents also apply to amend the claim for the cost of rectification from $50,000 to $254,550.00 in accordance with the respondent’s Scotts Schedule (which has been filed) and as pleaded in paragraph 31 of the proposed amended pleading.

The respondents neither support nor resist the applicants to amend or transfer on the basis that they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 630
Decision Date: 8 December 2010

CaseChat Overview and Summary

The case before the Queensland Civil and Administrative Tribunal (QCAT) involved MacKrell Building Trust, trading as Phillip MacKrell Builder (the appellant) and Sterling (the respondent). The dispute centred around the respondent’s application to amend its defence and counterclaim, with the appellant opposing the application on the grounds of delay and lack of explanation. The appellant also sought to transfer the case to the District Court of Queensland.

The primary legal issue before QCAT was whether the respondent should be granted leave to amend its pleadings, considering the absence of a satisfactory explanation for the delay. The court had to balance the case management principles with the statutory provisions under sections 3, 4, and 28(3) of the QCAT Act. The case management principles emphasise the efficient and fair resolution of disputes, while the statutory provisions give QCAT the discretion to allow amendments. The decision referenced the High Court case Aon Risk Services Australia Limited v Australian National University, which underscored the importance of context and proportionality in assessing applications for leave to amend.

QCAT considered the principles of case management, the absence of an explanation for the delay, and the potential prejudice to the appellant. The tribunal concluded that despite the delay, the respondent’s application should be granted due to the relatively minor changes proposed and the overall context of the case. The tribunal dismissed the appellant’s application to transfer the proceeding to the District Court, finding that the matter was appropriately within QCAT’s jurisdiction.

The tribunal granted the respondent leave to amend its defence and counterclaim as specified in the Further Amended Defence and Counterclaim. The tribunal also dismissed the appellant’s application to transfer the proceeding to the District Court of Queensland.

Orders

Orders of the court

1. The respondents have leave to amend the amended defence and counterclaim as follows:

(a) Paragraphs 16(f) to (m);

(b) Paragraph 17;

(d) Paragraph 22 and 23

(e) Paragraph 26;

(f) Paragraph 31

in accordance with the proposed Further Amended Defence and Counterclaim being exhibit (“BJM1”) to the affidavit of Mr Miller filed 27 November 2010.

2. The application to transfer the proceeding to the District Court of Queensland is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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