Mitchamy Developments Pty Ltd v Adams and Adams-Atkinson
[2011] QCAT 133
•19 April 2011
| CITATION: | Mitchamy Developments Pty Ltd v Adams and Adams-Atkinson [2011] QCAT 133 |
| PARTIES: | Mitchamy Developments Pty Ltd |
| v | |
| Mr Michael Adams and Ms Erica Adams-Atkinson |
| APPLICATION NUMBER: | BD062-06 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 19 April 2011 |
| HEARD AT: | On the papers |
| DECISION OF: | Mr Barry Cotterell, Member |
| DELIVERED ON: | 19 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Tribunal orders that amount of the award be amended and that the Respondents pay the Applicant the sum of $16,410 plus the sum of $10,692.34 by way of interest making a total sum payable of $27,102.34 by 6 May 2011. [2] The Tribunal notes the undertaking of Mr Adams that he would do everything in his power as a director of Twin Waters Realty Pty Ltd to discontinue Plaint No M431/2010 in the Maroochydore Magistrates Court where Twin Waters Realty Pty Ltd is suing Mitchamy Developments Pty Ltd. Note: The Tribunal assumed that if the Plaint was discontinued the Applicant here would not seek costs after 11 March 2011 but no undertaking was specifically given. |
| CATCHWORDS: | Building matter – Application for reopening, correction, renewal or amendment Queensland Civil and Administrative Act 2009, ss 88(2), 133(2), 135, 138 |
APPEARANCES and REPRESENTATION (if any):
On the papers.
REASONS FOR DECISION
Background
The dispute in this matter arises out of a domestic building contract, entered into between the Applicant, Mitchamy Developments Pty Ltd (“Mitchamy”), and the Respondents, Michael Adams and Erica Adams-Atkinson (“Mr Adams and Ms Adams-Atkinson”) in December 2004.
In summary, Mitchamy has claimed that Mr Adams and Ms Adams-Atkinson failed to pay him the full amount due under the contract, and also failed to pay him for supplementary works. Mitchamy’s application relates to work performed at Lot 74, 12 Oceanic Court, Twin Waters. Mitchamy’s originating application was filed in the Commercial and Consumer Tribunal (“CCT”) on 6 February 2006 and was amended on 27 June 2006.
The matter was heard in Maroochydore on 10 and 11 March 2011.
Based on all of the evidence the Tribunal awarded Mitchamy the following:
Mitchamy’s claim $101,430
Less
Amount deducted for the unfinished work 28,083
- Credit for customer referral by Respondents 5,075
- Credits for variations by way of deletions 9,848
- Reduction in the price due to agreement of 4 August 2005 35,325
Plus
The cost of variations 3,520
- Cost of Termite invoice 60
Total $26,679
The Tribunal awarded interest on this figure in the sum of $16,852.49.
The Tribunal ordered that that the Respondents pay the Applicant the sum of $26,619 plus the sum of $16,852.49 by way of interest making a total sum payable of $43,471.49 by 25 March 2011.
The Application for reopening, correction, renewal or amendment
The Application Form refers to sections 88(2), 133(2), 135 and 138 of the Queensland Civil and Administrative Tribunal Act 2009.
Those sections state as follows:
88 Effect of order giving effect to settlement
(1) An order under this division giving effect to a settlement for a proceeding has the same effect as if it were an order made by the tribunal after deciding the proceeding.
(2) The parties to the proceeding may apply to the tribunal for an amendment of the order if the order does not reflect the intention of the parties in the settlement.
(3) An application under subsection (2) must be made jointly by all the parties to the proceeding.
(4) The tribunal may, on the application of the parties under this section, amend the terms of the order if the tribunal is satisfied--(a) the amendment reflects the intention of the parties; and
(b) the tribunal could make a decision in the terms of the settlement after the amendment, or consistent with the terms of the settlement after the amendment.
133 Application for renewal
(1) This section applies if--
(a) it is not possible for the tribunal's final decision in a proceeding to be complied with; or
(b) there are problems with interpreting, implementing or enforcing the tribunal's final decision in a proceeding.
(2) A party to the proceeding may apply to the tribunal for a renewal of the final decision.
(3) The application must--(a) be in a form substantially complying with rules; and
(b) state the reason for the application; and
(c) be made--(i) within the period stated in the rules; and
(ii) by filing it in the registry.
(4) The party must give a copy of the application to--
(a) each other party to the proceeding; and
(b) each other person to whom notice of the application or referral for the proceeding was given under section 37; and
(c) any person the tribunal directs to be given notice of the application.
(5) Subsection (4) does not require the party to give a copy of the application to a person if the principal registrar has given or undertaken to give the copy to the person.
(6) A party can not make an application under this section in relation to a final decision the subject of an appeal, or an application for leave to appeal, under part 8.
(7) Subsection (6) applies whether or not the appeal or application has been decided.135 Tribunal may correct mistake
(1) The tribunal may correct a decision made by it in a proceeding if the decision contains--
(a) a clerical mistake; or
(b) an error arising from an accidental slip or omission; or
(c) a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or
(d) a defect of form.
(2) The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
(3) An application under subsection (2) must be made within the period, and in the way, stated in the rules.
(4) A party can not make an application under subsection (2) in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.
(5) Subsection (4) applies whether or not the appeal or application has been decided.138 Application to reopen
(1) A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
(2) The application must--(a) state the reopening ground on which it is made; and
(b) be made within the period and in the way stated in the rules; and
(c) be accompanied by the prescribed fee (if any).
(3) The party must give a copy of the application to--
(a) each other party to the proceeding; and
(b) each other person to whom notice of the application is required to be given under an enabling Act or the rules; and
(c) any person the tribunal directs to be given notice of the application.
(4) Subsection (3) does not require the party to give a copy of the application to a person if the principal registrar has given or undertaken to give a copy of the application to the person.
(5) A party can not make an application under this section in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.
(6) Subsection (5) applies whether or not the appeal or application has been decided.
The Application based on Section 88(2)
Section 88(2) clearly cannot apply as the parties could not settle this matter and the order was made after a full hearing of all issues in dispute. Also the application was not made by all parties to the proceeding.
[10] Therefore, the application under this section must be dismissed.
The Application based on Section 133(2)
[11] For section 133(2) to have effect, section 133(1) must apply.
[12] The Tribunal’s decision can be complied with by the Respondents paying the amount of the order so sub-section (1)(a) is not relevant. Likewise, there are no problems with interpreting, implementing or enforcing the Tribunal’s final decision in the proceeding.
[13] The Respondents are seeking to have the Tribunal review the evidence and are arguing that amounts should be deducted from the amount payable. The deduction of these amounts is a matter which should have been addressed by the Respondents in their defence to the Applicant’s claim. It is not appropriate for a Respondent to apply under section 133(2), to seek to have the Tribunal reconsider the evidence. This is clearly not the purpose of this section.
[14] Therefore, the application under this section must be dismissed.
The Application based on Section 135
[15] For an application under this section to succeed, one or more of the factors referred to in sub-section 135(1) must apply.
[16] With regard to Mitchamy’s claim for a further $8,800 being $7,040 for additional supervision and $1,760 for additional administration and interest for the 16 weeks between 15 August 2005 and 7 December 2005 the Tribunal found that this claim cannot be justified and must be dismissed.
[17] Mr Adams and Ms Adams-Atkinson in this application have sought to have the Tribunal deduct this amount.
[18] On review the Tribunal has realised that Mitchamy’s claim amount of $101,430 did include the sum of $8,800 which was an accidental slip on the part of the Tribunal. This sum must be deducted from the amount awarded to Mitchamy.
[19] Mr Adams and Ms Adams-Atkinson in this application also have sought to have the Tribunal deduct $869 being $790 plus GST relating to Glazing Mirrors. The Tribunal accepts that $790 was referred to in a document before the Tribunal as a variation to be allowed by Mitchamy and that this amount does not appear in the final ledger as a variation which resulted in Mitchamy’s claim amount of $101,430. However, the deduction, or otherwise, of this amount turns on a question of evidence and the sub-section 135(1) criteria are not applicable.
[20] Mr Adams and Ms Adams-Atkinson in this application also have sought to have the Tribunal deduct $600 for GST on the $6,000 deducted for the Logia Louvers. The deduction, or otherwise, of this amount also turns on a question of evidence and the sub-section 135(1) criteria are not applicable.
The Application based on Section 138
[21] The only items left to be considered in this application under this section are the $869 being $790 plus GST relating to Glazing Mirrors and the $600 for GST on the $6,000 deducted for the Logia Louvers making a total of $1,469.
[22] In deciding whether or not to reopen a proceeding the Tribunal must consider section 139 which states as follows:
139 Deciding whether to reopen
(1) This section applies if a party (the applicant party) to a proceeding makes an application under section 138 for a proceeding to be reopened.
(2) Each party to the proceeding must be given an opportunity to make, within the period stated in the rules, written submissions about the application.
(3) The tribunal--
(a) must consider any written submissions made under subsection (2) about the application; and
(b) may decide whether or not to reopen the proceeding entirely on the basis of documents, without a hearing or meeting of any kind.
(4) The tribunal may grant the application only if the tribunal considers--
(a) a reopening ground exists for the applicant party; and
(b) the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.
(5) The tribunal's decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
[23] Mr Adams and Ms Adams-Atkinson submit that Mr Adams was called to the hearing and did not have sufficient time to prepare. The Tribunal accepts that this did occur but in the preparation phase, well prior to the hearing, Mr Adams and Ms Adams-Atkinson had ample time to identify what they are now claiming and to put these claims into evidence to be considered by the Tribunal at the hearing.
[24] The Tribunal does not consider it appropriate to reopen this application to allow the submission of evidence when the party has failed to take advantage of the opportunity in the hearing preparation phase to submit the evidence which they now require to succeed with their claim being considered.
[25] However, Mitchamy in its reply to this application has conceded that the $869 and the $600 were omissions.
[26] Therefore, the Tribunal under these circumstances agrees to reopen the application and to amend the amount previously awarded to Mitchamy by deducting these amounts in the sum of $1,469.
CONCLUSIONS AND SUMMARY
[27] Based on all of the evidence the Tribunal awarded Mitchamy the following:
Mitchamy’s claim $101,430
Less
Amount deducted for the unfinished work 28,083
- Credit for customer referral by Respondents 5,075
- Credits for variations by way of deletions 9,848
- Reduction in the price due to agreement of 4 August 2005 35,325
Plus
The cost of variations 3,520
- Cost of Termite invoice 60
Total $26,679
[28] However, Mitchamy’s claim amount of $101,430 included the sum of $8,800 which was an accidental slip on the part of the Tribunal. This sum and the amount of $1,469 must be deducted from the amount awarded to Mitchamy resulting in a total award of $16,410.
[29] The Tribunal awarded interest on this figure at the Supreme Court Interest rate which has varied over this period from 9% from 01/04/02 - 31/06/07 and then to 10%.
[30] This results in the following calculation for interest on the amended award:
Award $16,410
7-Dec-06 $ 1,609.11 Rate 9%
1-Jun-07 $ 876.96 Rate 9%
7-Dec-07 $ 1,018.25 Rate 10%
7-Dec-08 $ 2,138.33 Rate 10%
7-Dec-09 $ 2,352.17 Rate 10%
7-Dec-10 $ 2,587.38 Rate 10%
19-Apr-11 $ 1,067.30 Rate 10%$10,692.34
[31] Therefore, the Tribunal awards interest from 7 December 2005 to 11 April 2011 at the Supreme Court Rate per annum in the sum of $10,692.34.
AMENDED ORDERS
The Tribunal orders that amount of the award be amended and that the Respondents pay the Applicant the sum of $16,410 plus the sum of $10,692.34 by way of interest making a total sum payable of $27,102.34 by 6 May 2011.
The Tribunal noted the undertaking of Mr Adams that he would do everything in his power as a director of Twin Waters Realty Pty Ltd to discontinue Plaint No M431/2010 in the Maroochydore Magistrates Court where Twin Waters Realty Pty Ltd is suing Mitchamy Developments Pty Ltd.
Note: The Tribunal assumed that if the Plaint was discontinued, the Applicant here would not seek costs after 11 March 2011 but no undertaking was specifically given.
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