McCann v Cavalier Homes Brisbane Pty Ltd

[2013] QCATA 33

CITATION: McCann and Anor v Cavalier Homes Brisbane Pty Ltd [2013] QCATA 33

PARTIES:	Debra Anne McCann Patrick Stanley McCann (Applicants/Appellants)
v
Cavalier Homes Brisbane Pty Ltd (Respondent)

APPLICATION NUMBER: APL133-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon John Jerrard QC, Member

DELIVERED ON: 18 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     The order of 30 March 2012 is set aside.

2.     The order made 12 January 2012 for default decision in favour of Cavalier Homes Brisbane Pty Ltd is set aside, and in lieu thereof, Debra McCann and Patrick McCann are to file their responses to the claim BDL272-11 within 14 days of receipt of this order.

CATCHWORDS:

APPEAL – DOMESTIC BUILDING DISPUTE – where payment of an amount owing under building contract for residential property outstanding – where amended affidavit of service – where application for default decision – where application to set aside default decision – where applicants and respondent entered into an agreement which varied original building contract – where terms of agreement were that the respondent would not proceed with its claim against applicants without “reasonable prior notice” – where no “reasonable prior notice” given to applicants

Queensland Civil and Administrative Tribunal Act 2009, s 32

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. On 22 September 2011, the respondent began an action in this Tribunal, in form 26, claiming a debt of $71,039.40, pleading a contract to build a residence, entered into on 30 November 2009, and that the applicants had taken possession of the premises in mid July 2011, while the claimed monies were still owing to the builder.

2. A defective affidavit of service was filed on 15 November 2011, and a corrected affidavit was filed on 10 January 2012, deposing to service of the form 26 on 7 October 2011, on the female applicant/appellant.  A copy of that form advised that the then respondent (the appellant/applicant) had 14 days from the date of receipt in which to file a response, and faced an application for a decision by default if there was no response filed within that time. Effectively, since service occurred on 7 October 2011, the present applicant/appellant (and her husband) had until 21 October 2011 to file a response to the application filed on 22 September 2011, in form 26, by the present respondent. Those proceedings had been numbered BDL272-11.

3. The documents filed in this Tribunal record that on 14 October 2011, the applicant/appellant and her husband paid exactly one half of the amount then claimed by the respondent, (ie, $35,519.70) and on 21 October 2011 (the date by which the applicant and her husband were required to respond to the form 26) the appellant/applicant, her husband and the respondent entered into an agreement, dated that day, which listed 16 specified items which “will be attended to by Cavalier Homes to ensure the full completion of the said property.” One of those, numbered figure 3, is probably too vague to constitute part of an agreement, since it simply reads:

   Driveway – Aggregate issue not acceptable – to be advised further on what further action is required to rectification.

4. The other fifteen specified items contain at least some description of what the McCann parties required the builder to do, and the agreement provided that the McCanns’, for their part:

   Agree to make payment of $10,000.00 directly to Cavalier Homes Pty Ltd within 24 (twenty-four) hours of this document being signed.

   The owners further agree to make full payment of the balance owing (being $25,519.70) to Cavalier Homes Pty Ltd within 24 (twenty-four) hours of the aforementioned items being completed.

5. The document does not refer to the payment of one half of the sum Cavalier Homes had originally claimed to be owing, nor to the action Cavalier Homes had instituted in this Tribunal to recover that claimed sum, but the figures in that agreement, signed by the parties (although not under seal, by Cavalier Homes) support the affidavit description by Cavalier Homes that $35,519.70 had been paid on 14 October 2011, and a further $10,000.00 was paid on 25 October 2011. Payments of those two sums on those dates was pleaded by the present respondent in its application filed on 15 November 2011, a request for a decision by default, supported by an affidavit filed that date, in which the present respondent contended that the amount of $25,519.70 remained payable. That application for a decision by default made no mention of the agreement dated 21 October 2011, in which the present respondent had bargained to receive the balance payment of $25,519.70, within 24 hours of completing the 16 specified items.

6. The respondent received a default decision in its favour, made on 12 January 2012, ordering the present applicant/appellant to pay it $25,519.70. On 31 January 2012 the McCanns filed an application in form 40 in this Tribunal asking for orders dismissing or striking out the proceedings brought against them by Cavalier Homes Brisbane Pty Ltd, and for an order that the judgment by default on 12 January 2012 be set aside. The grounds of that application pleaded an agreement ‘signed on 21 October 2011 the terms of which varied the original contract entered into by the parties’, and asking for an order that when the judgment by default was set aside that the McCanns ‘file and serve their defence within 14 days’. That application annexed to it what purported to be a copy of that agreement entered into on 21 October 2011 between the relevant parties, in which the respondent agreed to be paid $25,519.70 within 24 hours of ‘the aforementioned items being completed’. On 30 March 2012 the application to set aside the earlier default judgment was refused, and it is from that decision that this application/appeal is brought.

7. The grounds of appeal advanced by the applicant/appellant contend that insufficient weight was placed upon the variation agreement dated 21 October 2011, and likewise that insufficient weight was placed upon what the present applicant/appellant contends was an agreement between the parties ‘wherein the (respondent) agreed to stay its application subject to the terms of the variation agreement of 21 October 2011 being complied with’; and further pleading that the applicant/appellant would be would be unfairly prejudiced if the default judgment was not set aside, because the respondent was placed in administration on 14 March 2012, and unable to perform the specific items of rectification listed in the agreement of 21 October 2011, since its building licence has been suspended due to its being placed in liquidation. Accordingly, if the female applicant pays the sum ordered, the respondent will receive the $25,519.70, in return for nothing from it.

8. The applicant/appellant make other written submissions, but it is unnecessary to rule upon those, as I am satisfied that the material before this Tribunal reveals that the McCanns had paid one half of the sum originally claimed by the respondent, and had bargained with the respondent to pay the remainder in two specified stages. They paid one, and they were surprised by the default order, of the application for which they seem to have had no notice, and an application which both ignored and contradicted the agreement made on 21 October 2011.  Accordingly, I order that:

   1.The order of 30 March 2012 is set aside.

   2.The order made 20 January 2012 for judgment by default in favour of the current respondent is set aside, and in lieu thereof the applicant and her husband are to file their responses to the claim BDL272-11 within 14 days of receipt of this order.