Mt Cotton Constructions P/L v Greer - [2016] QCAT 281

CITATION:

Mt Cotton Constructions P/L v Greer [2016] QCAT 281

PARTIES:	Mt Cotton Constructions Pty Limited (Applicant)
v
Damien Greer Kate Greer (Respondent)

APPLICATION NUMBER:

BDL190-14

MATTER TYPE:

Building matters

HEARING DATE:

4 August 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

4 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The application for miscellaneous matters filed 25 July 2016 is refused.

THE TRIBUNAL DIRECTS THAT:

1. The application is listed for an expert’s conclave in Brisbane on 19 August 2016 at 9:30 am.

2. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:

a. for the conduct of the conclave; and

b. for the conduct of the proceeding.

3. The parties must file in the Tribunal two (2) copies of:

a. the name, specialisation and contact details of the experts to participate in the Conclave; and

b. an agreed list of issues to be considered by the experts at the Conclave; and

c. a list of documents provided to their experts by:

4:00pm on 15 August 2016.

4. If the parties are unable to agree on a set of issues, each party must file in the Tribunal two (2) copies and give to each other one (1) copy of a list of issues they propose to be considered by the experts at the Conclave, by:

4:00pm on 16 August 2016.

5. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.

6. If the experts prepare a joint report, that report will be the experts’ evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.

7. Except with the Tribunal’s leave, a party may not:

a. raise a matter not already mentioned in the joint report.

b. submit evidence from an expert (whether or not they participated in the conclave) that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report.

c. submit evidence from any other expert about matters mentioned in the joint report.

8. The directions hearing on 17 August 2016 is vacated.

9. The matter is listed for a directions hearing in Brisbane on 7 September 2016 at 3:30 pm.

10. The hearing in Brisbane on 10, 11, 12, 13 and 14 October 2016 is confirmed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – OTHER MATTERS – where applicant had relied upon evidence of quantum meruit claim – where applicant had abandoned previous application for expert evidence – where applicant made further application for expert evidence – where allowing expert evidence would result in adjournment of hearing – whether applicant satisfactorily explained delay in making application for further evidence – where delay caused by decision by applicant in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCAT 281
Decision Date: 4 August 2016

CaseChat Overview and Summary

Mt Cotton Constructions P/L, the applicant, sought to adduce expert evidence in relation to a quantum meruit claim against Greer, the respondent, in proceedings before the Queensland Civil and Administrative Tribunal. The Tribunal was required to determine whether it was just and convenient to permit the applicant to adduce expert evidence despite the delay in making the application. The applicant had previously abandoned an application for expert evidence and had made a further application. The Tribunal held that the application should be refused because the applicant had not satisfactorily explained the delay in making the application, and the delay was caused by the applicant’s own decision in the conduct of the claim. The Tribunal considered the principles in Aon Risk Services Australia Ltd v Australian National University and found that the application to adduce late evidence should be refused. The Tribunal directed an expert’s conclave, set out detailed directions for the conduct of the conclave and the proceeding, and listed the matter for a directions hearing and hearing.

The Tribunal confirmed the hearing dates and directed an expert’s conclave, which was to be convened by a member of the Tribunal. The parties were required to file copies of the experts’ names, specialisation and contact details, an agreed list of issues to be considered by the experts, and a list of documents provided to their experts. If the parties were unable to agree on a set of issues, they were required to file and serve a list of issues they proposed to be considered by the experts. The Registrar was required to provide a copy of the experts’ joint report to the parties within seven days of receipt by the Tribunal. The Tribunal set out detailed directions for the conduct of the proceeding, including prohibiting parties from raising matters not mentioned in the joint report, submitting evidence from an expert that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report, or submitting evidence from any other expert about matters mentioned in the joint report, except with the Tribunal’s leave. The directions hearing was vacated, and the matter was listed for a directions hearing and hearing.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The application for miscellaneous matters filed 25 July 2016 is refused.

THE TRIBUNAL DIRECTS THAT:

1. The application is listed for an expert’s conclave in Brisbane on 19 August 2016 at 9:30 am.

2. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:

a. for the conduct of the conclave; and

b. for the conduct of the proceeding.

3. The parties must file in the Tribunal two (2) copies of:

a. the name, specialisation and contact details of the experts to participate in the Conclave; and

b. an agreed list of issues to be considered by the experts at the Conclave; and

c. a list of documents provided to their experts by:

4:00pm on 15 August 2016.

4:00pm on 16 August 2016.

5. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.

6. If the experts prepare a joint report, that report will be the experts’ evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.

7. Except with the Tribunal’s leave, a party may not:

a. raise a matter not already mentioned in the joint report.

c. submit evidence from any other expert about matters mentioned in the joint report.

8. The directions hearing on 17 August 2016 is vacated.

9. The matter is listed for a directions hearing in Brisbane on 7 September 2016 at 3:30 pm.

10. The hearing in Brisbane on 10, 11, 12, 13 and 14 October 2016 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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