Mair Renovations v Miller
[2014] QCAT 474
•25 September 2014
| CITATION: | Mair Renovations v Miller [2014] QCAT 474 |
| PARTIES: | Jeffrey Mair t/as Mair Renovations Pamela Mair t/as Mair Renovations (Applicants) |
| v | |
| Duncan Thomas Miller Genevieve Kay Miller (Respondents) |
| APPLICATION NUMBER: | BDL271-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 25 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for interim order is dismissed. |
| CATCHWORDS: | BUILDING DISPUTE – Application for interim order – whether just and convenient to determine preliminary issue – whether determination of the preliminary issue will contribute to a saving of hearing time and cost Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28 A L Builders Pty Ltd v Fatseas & Anor [2014] QCAT 092, cited |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
The applicants, Jeffrey Mair and Pamela Mair t/as Mair Renovations (Mair Renovations) are in the business of building. Mr Jeffrey Mair is a registered builder and holds a licence under the Queensland Building and Construction Commission Act 2009 (Qld).
The respondents, Duncan Miller and Genevieve Miller are the registered owners of property at 11 Athlone Street, Woolloongabba (the property).
Mr and Mrs Miller entered into a contract with Mair Renovations on or about 14 September 2010 to complete building work at the property for the contract price of $550,000.00. The contract was effectively to be performed in two stages in that work was to be completed to the upstairs and downstairs of the property.
An architect, Robert Eccles Pty Ltd was appointed to administer the contract on behalf of the home owners, Mr and Mrs Miller.
During completion of the work a dispute arose between the parties in relation to, amongst others, the works performed at the property and payment of money owing under the contract.
Mair Renovations commenced proceedings against Mr and Mrs Miller for payment of works performed at the property. Mr and Mrs Miller counter-claimed for the cost of rectifying alleged defective work and an amount for rental costs incurred and lost rental income in relation to the building work performed at the property.
The substantive proceeding (application BDL271-13) has been listed for a 5 day hearing before the Tribunal commencing on 17 November 2014.
The proceedings currently before the Tribunal were initially commenced in the District Court of Queensland and were transferred to the Tribunal pursuant to s 53 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) on 31 October 2013.[1]
[1]Order of the District Court dated 31 October 2013.
One of the issues to be determined by the Tribunal in relation to the proceeding is whether the contract has been lawfully terminated.
The applicants, Mair Renovations have filed in the Tribunal an application for interim order to determine the issue of whether the contract was terminated by the respondents, Mr and Mrs Miller.[2] Mair Renovations rely on the affidavit of Jeffrey Alan Mair sworn 14 July 2014. The following questions have been referred to the Tribunal, in the application, for determination:
1.That the question whether the relevant building contract was terminated by the Respondents by letter dated 28 August 2012, or at any time, be separately determined.
2.That such determination be heard prior to the other matters, namely the assessment by the Tribunal of the value of the variations carried out by the Builder and the issue of alleged defects by the Respondents and the Respondents’ claim for damages for loss of rental.
3.Costs.
[2]Application for interim order filed on 15 July 2014.
Written submissions have been prepared and filed by the parties in accordance with directions made by the Tribunal on 30 July 2014.[3]
[3]The Tribunal is to determine the application for interim order on the papers without an oral hearing as per directions made on 30 July 2014.
Mr and Mrs Miller do not agree that the issue of whether the contract has been properly terminated should be determined by the Tribunal as a separate issue and therefore do not consent to the application for interim order.
The Tribunal’s power to determine a preliminary issue
Section 28 of the QCAT Act grants a discretion to the Tribunal in how a proceeding is to be conducted. The Tribunal must however in conducting a proceeding, amongst others, observe the rules of natural justice and ‘act with as little formality and technicality and with as much speed’ as the QCAT Act, an enabling Act or the rules and a ‘proper consideration of the matters before the Tribunal permit’.[4]
[4]QCAT Act s 28.
The Tribunal must, in conducting a proceeding, have regard to the objectives of the QCAT Act to, amongst others, ‘deal with matters in a way that is accessible, fair, just, economical, informal and quick’.[5]
[5]QCAT Act s 3.
It was previously determined by the Appeal Tribunal in A L Builders Pty Ltd v Fatseas & Anor[6], consistent with the principles identified in Reading Australia Pty Ltd v Australia Mutual Providence Society[7], that there are relevant factors to be considered in determining whether to decide a preliminary issue prior to a substantive hearing. The Appeal Tribunal stated:
In some cases it can be useful to decide a preliminary issue prior to a substantive hearing. In many cases this is done when there are no contested issues of fact. For example, if the preliminary issue involved the construction of a statute, or a contract in a particular way that might be decisive as to the ultimate outcome of a case….[8]
[6][2014] QCATA 171.
[7](1999) 217 ALR 495.
[8]A L Builders Pty Ltd v Fatseas & Anor [2014] QCATA 171 at [11].
In A L Builders Pty Ltd v Fatseas & Anor the Appeal Tribunal also considered the decision of Re Cotton Crops Pty Ltd[9] in relation to whether deciding a preliminary issue of law or construction ‘separately from the trial of the factual issues in the action’ would result in costs saving and convenience.[10] The Appeal Tribunal determined that the issue of whether to make an order for a separate determination of the preliminary issue was ‘discretionary and it depended on the particular circumstances of the case’.[11]
[9][1988] 1 Qd R 482.
[10]A L Builders Pty Ltd v Fatseas & Anor [2014] QCATA 171 at [12], see A L Builders Pty Ltd v Fatseas [2014] QCAT 092 at [15].
[11]Ibid [12].
The relevant factors that may be considered in determining whether to make an order for a separate determination of a preliminary issue are set out in the decision of Reading Australia Pty Ltd v Australian Mutual Provident Society.[12]In Reading Australia Pty Ltd v Australian Mutual Provident Society, Branson J considered a provision in the Federal Court Rules that allows for the determination of an issue separately before the trial of a proceeding. The relevant factors identified include, amongst others, whether the making of an order to determine the issue separately will ‘contribute to the saving of time and costs’ of the proceedings; and whether a determination of the question will ‘result in significant overlap between the evidence adduced on the hearing of the separate question and at trial’.[13] In Reading Australia Pty Ltd v Australian Mutual Provident Society, Branson J stated:
…
(g)factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may:
(i)give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v Commonwealth [1997] FCA 934);
(ii)result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: (GMB Research & Development Pty Ltd v The Commonwealth; Arnold v Attorney-General (Vic) (Unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC9502745). This factor will be of particular significance if the Court may be required to form a view as to the creditability of witnesses who may given evidence at both stages of the hearing of the proceedings or
(iii)prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v The Commonwealth).[14]
[12]Reading Australia Pty Ltd v Australia Mutual Providence Society (1999) 217 ALR 495.
[13]Ibid [8].
[14]Ibid.
The relevant considerations in the exercise of the discretion to determine a preliminary issue as a separate hearing was also considered by the Supreme Court in the decision of Advance Traders Pty Ltd v McNab Constructions Pty Ltd & Anor.[15] It was determined by Boddice J:
Ultimately, the issue for the Court, in determining whether to exercise the discretion and make an order for separate determination, is whether it is just and convenient for the order to be made.[16]
[15][2011] QSC 212.
[16]Advance Traders Pty Ltd v McNab Constructions Pty Ltd & Anor [2011] QSC 212 at [11].
In the present matter there are several issues identified in the affidavit of Jeffrey Mair sworn 14 July 2014 filed in support of the application for interim order. Some of the issues identified will also need to be considered by the Tribunal in relation to the substantive proceeding. Mr Mair states in his affidavit:
I seek to have the matter of the Respondents’ alleged termination of the contract and my claim that the contract remains on foot determined by the Tribunal prior to the Tribunal’s determination of the issues relating to:
(a) contract variations;
(b) defects; and
(c) damages claimed by the Respondents for alleged loss of rental…
Mr Mair also states in his affidavit that the termination of contract issue can be determined in one day and that the remaining issues can then effectively be reduced to one day. Mr Mair states in his affidavit:
I believe that the contract issue can be determined in one day and that where that has occurred the other issues will be reduced to one day resulting in a considerable saving of time and money.[17]
[17]Affidavit of Jeffrey Allan Mair filed on 15 July 2014, paragraph 5.
I am not satisfied that a determination of the question as to whether the contract was terminated by Mr and Mrs Miller as contended will result in any significant saving of hearing time. There are contested factual issues relevant to the question of termination of the contract that will also be relevant to the issues in the substantive application such as rectification of any alleged defective works.
Mr Mair contends in his affidavit sworn 14 July 2014 that he had ‘arranged’ with the Architect to have access to the property to ‘start rectification work’.[18] Mr Mair further states in his affidavit in support of the application for interim order:
The action by the Respondent in claiming to have terminated the contract deprived me of the right to respond to the defects list of the Repsondents as issued by the Architect and then my contractual duty to effect the defect works as required by the Architect.[19]
[18]Ibid [25].
[19]Ibid [39].
The affidavit of Mr Mair clearly identifies contested factual issue that are relevant to the issue of whether the contract was terminated. This will require the Tribunal to consider all of the relevant evidence including the evidence of Mr Mair as the builder, Mr and Mrs Miller as the home owners and the evidence of the Architect. The evidence of Mr Mair, Mr and Mrs Miller and the Architect will also be relevant to the substantive issues to be determined by the Tribunal such as contract variations, defects and any damages claimed by Mr and Mrs Miller. As determined in Reading Australia Pty Ltd v Australian Mutual Provident Society[20] consideration of whether there is a ‘significant overlap’ of evidence to be adduced in relation to the interim application and the hearing of the substantive issues is a relevant factor in exercising the discretion to make an order for separate determination.
[20](1999) 217 ALR 495 at [8].
The applicants in written submissions prepared and filed by their legal representatives in support of the application for interim order contend that there is a ‘significant defect’ that relates to the construction of a block retaining wall and that should the contract be ‘on foot’ the builder may attend to that work. The applicants’ legal representatives state in written submissions filed:
The owners maintain that as the contract was terminated the Builder is not to rectify the defect to the wall or any other defects and they will engage another builder to rectify the wall and recover the costs from the Applicant Builder.[21]
[21]Written submission on behalf of the applicants identified as the ‘reply to the submissions by the respondents filed on 31 July 2014’, filed on 4 August 2014, paragraph 14.
I am not satisfied that it is otherwise just and convenient for an order for a separate determination of whether the contract was terminated should be made. There is no agreed statement of facts before the Tribunal and the determination of the preliminary issue will clearly not put an end to the litigation, as there are other contested factual issues that will require determination by the Tribunal.
The appropriate order having considered all of the material including written submissions filed in relation to the application for interim order is that the application is dismissed.
The issue of costs in relation to the application for interim order is reserved.
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