McCann v Cavalier Homes Brisbane Pty Ltd

The appeal concerns a domestic building dispute between the McCanns, the applicants, and Cavalier Homes Brisbane Pty Ltd, the respondent. The applicants engaged the respondent to construct a residential property. A dispute arose over the payment of an amount owing under the building contract. The applicants filed an amended affidavit of service, leading to an application for a default decision in favour of the respondent. The applicants subsequently sought to set aside the default decision, arguing that the respondent had not given reasonable prior notice before proceeding with its claim, as stipulated in a variation agreement to the original building contract. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issue was whether the respondent was required to provide the applicants with reasonable prior notice before proceeding with its claim, given the terms of the variation agreement. The tribunal had to determine whether the respondent's failure to provide such notice justified setting aside the default decision. Additionally, the tribunal needed to assess whether the applicants' delay in filing their response to the claim warranted the setting aside of the default decision.

The tribunal found that the terms of the variation agreement stipulated that the respondent would not proceed with its claim against the applicants without reasonable prior notice. The tribunal concluded that the respondent had not provided such notice, and therefore, the default decision should be set aside. The tribunal held that the applicants' delay in filing their response did not preclude them from seeking to set aside the default decision. Consequently, the tribunal set aside the previous orders and directed the applicants to file their responses within 14 days of receipt of the order.

The tribunal's final orders were to set aside the order of 30 March 2012 and the order made 12 January 2012 for default decision in favour of the respondent. Instead, the applicants, Debra McCann and Patrick McCann, were to file their responses to the claim BDL272-11 within 14 days of receipt of the order.