McEwen v Barker Builders Pty Ltd
[2010] QCATA 49
•15 September 2010
| CITATION: | McEwen v Barker Builders Pty Ltd [2010] QCATA 49 |
| PARTIES: | Mark Alexander McEwen (Applicant/Appellant) |
| v | |
| Barker Builders Pty Ltd (Respondent) |
APPLICATION NUMBER: APL099-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 15 September 2010
DELIVERED AT: Brisbane
ORDERS MADE: That the applicant to pay the respondent’s costs of and incidental to the applicant’s applications fixed at $3,760, within 14 days
| CATCHWORDS : | DOMESTIC BUILDING DISPUTE – PROCEDURE –APPLICATION TO EXTEND TIME FOR LEAVE TO APPEAL AND APPLICATION TO STAY DECISION – where Learned Member decided that the respondent was entitled to terminate the Domestic Building Contract between it and the applicant – where the Learned member thereafter assisted the parties in reaching a settlement agreement – where the terms of the settlement agreement reflected in consent decision– where applicant later applied for leave to appeal and stay the operation of both decisions – where applicant out of time to apply for leave to appeal and sought extension of time – where applicant’s grounds for leave to appeal limited to new evidence – whether applicant able to show reasonable excuse for delay in filing for leave to appeal DOMESTIC BUILDING DISPUTE – PROCEDURE – DOMESTIC BUILDING DISPUTE – PROCEDURE –SETTLEMENT AGREEMENT – Queensland Civil and Administrative Tribunal Act 2009, s 137 – REOPENING PROCEEDINGS – where parties reached a negotiated settlement – where applicant later sought to appeal and stay the operation of the settlement agreement – where applicant did not apply to reopen the matter – whether applicant established grounds for reopening PROCEDURE – COSTS – Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(3) – DISCRETION TO AWARD COSTS - where applicant’s applications did not raise any reasonably arguable grounds – whether prima facie position in s 100 should be displaced and costs ordered against applicant pursuant to s 102(3) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self-Represented |
| RESPONDENT: | Taylor Edwards Lawyers |
REASONS FOR DECISION
The parties were involved in a building dispute[1] commenced in the former Commercial and Consumer Tribunal (now subsumed into QCAT). The dispute concerned their respective rights to validly terminate a domestic building contract between them dated 27 June 2007 under which Barker Builders Pty Ltd was to carry out certain construction works at Mr McEwen’s premises at Hunter Street in Ingham (the Contract).
A hearing was conducted on 22 February 2010 by a Member of QCAT, who firstly determined that Barker Builders had been entitled to terminate the Contract and made an order to that effect. Thereafter the parties, assisted by the member, negotiated an agreed outcome to the balance of their dispute under which Mr McEwen would pay Barker Builders a fixed sum for compensation, and there be no order as to costs. The parties signed a mediation agreement to that effect. A second order, made by consent, reflected that agreed outcome (the Consent Decision).
Despite the fact the decision was the product of an agreement reached after mediation, Mr McEwen lodged applications on 4 June 2010 (over three months later) seeking leave to appeal the 22 February decision and the Consent Decision, and to stay their operation. The applications were lodged well outside the period of 28 days allowed for an appeal (or application for leave to appeal) under the Queensland Civil and Administrative Tribunal Act 2009[2] (QCAT Act) so Mr McEwen also sought, in effect, an extension of time.
On 9 June 2010 this Appeal Tribunal directed that the applications to extend time, and for a stay, would be determined by written submissions, according to a timetable. Both parties exchanged submissions. Both applications were dismissed and as a consequence, the application for leave to appeal became a nullity. Barker Builders, however, also sought its costs and I invited further written submissions from both parties, according to a timetable, with which both complied.
An agreement to settle an action normally takes effect as a contract, and is binding (subject to the principles under which a contract can be set aside)[3]. The prima facie position is that parties who freely and lawfully enter into an agreement are bound by its terms unless one party can point to the existence of vitiating circumstances which mean the contract should be set aside[4]. Nothing of the sort was raised or alleged by Mr McEwen. He advanced no other grounds suggesting any defects in the procedure which led to the decisions. In the circumstances, refusal of the stay application was inevitable.
The Tribunal has a general power to waive procedural requirements, including extending time limits to lodge certain applications: QCAT Act, s 61. However, this discretion must not be exercised if to do so would cause prejudice or detriment to the other party that would not be remedied by an appropriate order for costs or damages: s 61(3).
Mr McEwen did not offer, in seeking to extend time, any undertaking or security for damages and the respondent submitted, and I accepted, that any further delay in obtaining its monetary judgment would cause it significant detriment by withholding a substantial amount of cash flow necessary for the operation of its business. There being nothing otherwise to explain or excuse the delay, the application to extend time was also refused.
Even if Mr McEwen had been able to overcome the problem of the long delay, he would still have faced the hurdle of satisfying the usual tests for granting leave to appeal. He did not, however, challenge the decisions of the learned Member; rather, he sought to introduce new evidence to support his applications.
In these circumstances, the alternative and more appropriate course of action for Mr McEwen may have been to seek a reopening of the proceedings: QCAT Act, s 137. The paramount consideration in an application of that kind is the existence of a reopening ground, which for present purposes, would have to be specifically stated in the application and argued on the basis that the applicant would suffer a substantial injustice if the proceeding was not reopened, because significant new evidence had arisen that was not reasonably available to him when the proceeding was first heard and decided: s 137(b). The applicant would still, however, have faced a significant problem with delay and, again, a prescribed 28-day period in which to seek reopening[5].
The applicant, in each of the applications filed on 4 June, pointed to new evidence from an expert quantity survey report dated 27 May 2010 which, he now alleges, calls into question the respondent’s right to terminate the contract and the subsequent monetary compensation that flowed from the mediation agreement the parties signed, and the ensuing consent order.
The general rule is that all relevant material to be relied on during negotiations should be made available at the time of a negotiated settlement agreement[6]. The difficulty confronting the applicant is that the report was commissioned by the applicant’s financier following the settlement of the matter and the applicant did not argue (or point to any evidence which might suggest) that it could not have been available for the hearing in February.
The report itself does not, in any event, raise any triable issue[7] relevant to the question of termination in the 22 February decision, nor raise any doubts as to the applicant’s position to settle the dispute at that time. It purports to address the range of quantum for the completion of the unfinished construction works under the Contract – a matter between the applicant, and his financier.
As to costs, the starting point in this tribunal is that each party must bear its own: QCAT Act, s 100. The statutory presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, conferring a broad discretionary power on the decision-maker[8].
In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3).
The respondent submits that the Tribunal should award its legal costs because it was unnecessarily disadvantaged by the applicant’s failure to comply with the consent order, and his attempt to reargue the matter without sufficient grounds or compelling evidence, and in the face of major procedural hurdles.
The respondent points to the decision of McGill DCJ in Tamawood Ltd & Anor v Paans[9] to argue that it was justified in obtaining legal representation (leave was granted for legal representation in the proceedings before the Member) to resist the present applications. That decision, however, was later the subject of an appeal[10] in which the principles concerning costs under the former Commercial and Consumer Tribunal Act 2003 were explored. The application of those principles to QCAT’s discretion to award costs, under this Tribunal’s new legislative framework, was considered in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments CTS 17653 (No 2) [2010] QCAT 412[11].
The language of s 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.
I am satisfied that the circumstances here do compel the exercise of the discretion in the respondent’s favour, particularly in light of the factors mentioned in s 102(3). The present applications attempt to go behind a settlement agreement which was intended to finalise the matter, and with which the applicant concurred; and to introduce new evidence that purports, much too late, to question the integrity of the Tribunal’s decisions – but, without raising any reasonably arguable grounds for the relief sought. In the words of s 102(3)(a), the applicant has acted in a way which ‘unnecessarily disadvantages’ the respondent, obliging it to incur additional legal costs to resist applications which were unmeritorious, and doomed to fail.
Section 107 exhorts the tribunal to fix costs, if that is possible. The respondent’s solicitors have assessed their costs at $3,760.00 and exposed their calculations, which are made under the items in the District Court scales. In light of the nature of the applications and their complexity, that is a reasonable basis.
It is ordered that Mr McEwen pay the respondent’s costs of and incidental to the applicant’s applications fixed at $3,760, within 14 days.
[1] McEwen v Barker Builders Pty Ltd BD452-08
[2] QCAT Act, s 143(4)
Compromise (4th Ed: 1996), Chapter 4
[4] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 at para [39]
[5] Queensland Civil and Administrative Tribunal Rules 2009, r 92
[6] Amos v National Australia Bank Ltd [2001] QSC 031
[7] Ibid
[8] Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P)
[9] [2004] QDC 427
[10] [2005] QCA 111
apply in the context of the QCAT Act.
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