Matatdor Tapas Bar Pty Ltd v Delab Construction Services Pty Ltd - [2014] QCAT 221

CITATION:

Matatdor Tapas Bar Pty Ltd v Delab Construction Services Pty Ltd [2014] QCAT 221

PARTIES:	Matatdor Tapas Bar Pty Ltd (Applicant)
v
Delab Construction Services Pty Ltd (Respondent)

APPLICATION NUMBER:

REO001-14

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

22 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:	1. The Application is refused.
CATCHWORDS:	Application to Reopen

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

Delab Construction Services Pty Ltd in an application for a commercial building dispute applied to the Tribunal seeking an order for payment by Matador Tapas Bar of $5,748.30 together with collection costs.
The claim arose out of work done pursuant to an agreement evidenced by the acceptance of a quotation by the respondent on 2 May 2012. The Tribunal heard the application on 15 November 2013 after it was satisfied that the respondent had notice of the hearing date. The respondent did not appear at that hearing and on 4 December 2013, the Tribunal ordered that the respondent pay the applicant the claimed amount. Reasons were given.
On 16 January 2014, Roberto Oliveras filed an application for a re-opening of the application.
The reasons given for the application were:
a)    ‘The applicant did not know that the matter was being heard and was not present.
b)    At a directions hearing on or about October 2013, the applicant was advised that the matter would be heard on or about 21 November 2013, however a notice of hearing would be sent to the parties by mail.
c)    The applicant did not receive a notice of hearing.
d)    The applicant telephoned QCAT on 21 November 2013 to find out where the hearing was and was told that it had been held already and to await the decision and he would be notified of his rights.
e)    The applicant received the decision on 9 December 2013.
f)     Upon the grounds set out in the affidavit of Roberto Olivares dated 17 December 2013.’
On 11 February 2014, the parties were directed to file submissions and it was ordered that unless otherwise objected to by the parties, the application to re-open would be determined by the Tribunal on the papers without an oral hearing after 24 March 2014. There has been no objection.
The applicant filed submissions on 27 February 2014 which were a repeat of matters set out in the affidavit dated 17 December 2013 which was filed in an appeal application on 20 December 2013. Essentially the reason for the application is that Mr Olivares swears that he did not receive a notice of hearing in the mail and no telephone call or email or any other indication as to the hearing date. He says that the address for service noted in the original application and response is the post box at his restaurant. He says he has the key to that post box, it is locked and only he and his wife have access to the post box. He says no notice of hearing arrived.
Mr Olivares made some submissions about Delab Construction Services Pty Ltd which are not relevant to this application but in any event were the subject of consideration in the hearing sought to be re-opened. Many of the contentions in the counterclaim filed by Mr Olivares in response to the claim by Delab Construction Services Pty Ltd were sought to be made under the Australian Consumer Law. The Tribunal does not have jurisdiction in its building jurisdiction to hear such applications. The Tribunal said, ‘insofar as the respondent seeks to rely on alleged breaches of the Trade Practices Act or the Australian Consumer, in my view those alleged breaches are not part of a commercial building dispute. Specifically they are not a claim relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work or a dispute in negligence related to the performance of reviewable commercial work.’
It is correct that Mr Olivares did not appear at the hearing of the matter. The Tribunal was satisfied at the hearing that a notice of the hearing was sent to Mr Olivares on 12 September 2013 to the address that was given on the response and counterclaim as G28B, 3240 Surfers Paradise Boulevard, Q 4217 and determined to proceed in the absence of Mr Olivares. That is the same address given on the application.
Mr Olivares submitted that in the interests of justice, the QCAT proceeding should be re-opened so that the Member can hear evidence from all parties and then make an informed decision. He asserted that the respondent’s evidence was accepted by default and that the case of the applicant had not been heard. In fact, the reasons show that the claims advanced by Mr Olivares by way of defence and counterclaim were considered.
The submissions from Delab Constructions Pty, seek to deal with matters which were raised at the original hearing and some of the submissions made by Mr Olivares which are not directly related to the question to be considered in this application for re-opening.
Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows a party to a proceeding to apply to the Tribunal for the proceeding to be re-opened if the party considers a re-opening ground exists for the party. The application must state the re-opening ground on which it is made and be made within the period and in the way stated in the rules and be accompanied by the prescribed fee. A party must give a copy of the application to each other party to the proceedings and every other person to whom the notice of the application is required to be given under an enabling act or the rules and any person the Tribunal directs to be given notice of the application.
Section 138(5) provides that a party cannot make an application under s 137 in relation to a decision the subject of an appeal or an application for leave to appeal under Part 8.
Here, the applicant appealed the decision.
Section 139 requires each party to the proceeding to be given an opportunity to make within the period stated in the rules written submissions about the application and the Tribunal must consider any written applications made under 139(2) and may decide whether or not to re-open the proceeding entirely on the basis of documents without a hearing or meeting of any kind.
The Tribunal may only grant the application if the Tribunal considers-
a) A re-opening ground exists for the application party; and
b) The ground could be effectively or conveniently dealt with by re-opening the proceeding under Division 7, whether or not an appeal under Part 8 relating to the ground may also be started.
A re-opening ground is defined in Schedule 3 for a party to a proceeding as meaning:
a) The party did not appear at the hearing of the proceeding and has had a reasonable excuse for not attending the hearing; or
b) The party would suffer a substantial injustice if the proceeding were not re-opened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
The second of those grounds is not argued here.
Apart from the prohibition to making this application identified earlier, the real question is whether or not Mr Olivares had a reasonable excuse for not attending the hearing. He says that he did not know of the hearing date and time.
Rule 92 of the QCAT Rules provides that an application under s 138 of the Act for a proceeding to be re-opened must be made:
a)    In the approved form; and
b)    Within 28 days after the relevant day; and
c)    By filing it.
‘Relevant day’ for an application mentioned in Rule 92 is defined in the Schedule as:
a) If the party making the application has requested written reasons for the decision under s 122 of the Act, the day the party is given the written reasons; or
b) Otherwise the day the party is given notice of the decision.
Mr Olivares says that he was served with the decision on 7 December 2013. He received a copy of the decision in the post from the Tribunal on 9 December 2013. The application for the re-opening was filed on 16 January 2014, outside of 28 days of the relevant day.
In my view, it is not appropriate to exercise any discretion to re-open the hearing because although not knowing of the hearing may be a reasonable excuse for not attending, the applicant has not filed the application in time and in any event because an appeal was lodged, he is precluded from seeking a re-opening.
Further, the Tribunal considered his counter claim and his defences to the claim made by Delab Constructions and for the reasons given in the decision, made the order it did. I am not satisfied that the applicant has suffered any substantial injustice.
The application is refused.