Namly Pty Ltd v Neis Construction Pty Ltd
[2022] QCAT 294
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Namly Pty Ltd v Neis Construction Pty Ltd [2022] QCAT 294
PARTIES:
NAMLY PTY LTD AS TRUSTEE FOR STADCOR ONE TRUST & STADCOR TWO TRUST (applicant)
v
NEIS CONSTRUCTION PTY LTD (respondent)
APPLICATION NO/S:
BDL078-22
MATTER TYPE:
Building matters
DELIVERED ON:
22 July 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Deane
ORDERS:
1. Neis Construction Pty Ltd must pay Namly Pty Ltd as Trustee for Stadcor One Trust & Stadcor Two Trust the sum of $45,800 by 4:00pm on 31 August 2022.
2. Neis Construction Pty Ltd must pay Namly Pty Ltd as Trustee for Stadcor One Trust & Stadcor Two Trust the sum of $358 for costs by 4:00pm on 31 August 2022.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – JUDGMENT IN DEFAULT OF OTHER REQUIRED STEP – where respondent failed to file a response disputing the application – where the respondent failed to comply with direction made by the Tribunal – where the applicant applied for default judgment
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – MATERIALS – restitution – where moneys paid for materials were misapplied
Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 50A
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 44(2)(a)(i)
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Namly Pty Ltd as Trustee for Stadcor One Trust & Stadcor Two Trust (Namly) seeks a decision in its favour in default of the obligation of Neis Construction Pty Ltd (Neis) to file in the Tribunal and give to Namly a response within the time provided by the rules.[1]
[1]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 44(2)(a)(i) (Rules).
Namly filed an Application for commercial building disputes[2] seeking orders that Neis pay $45,800 as restitution and costs in the sum of $358 (Application).
[2]Filed 15 March 2022.
A person involved in a building dispute may apply to the Tribunal to decide the dispute[3] provided the person has complied with a process established by the Queensland Building and Construction Commission (QBCC) to attempt to resolve the dispute.[4] Namly attached to the Application evidence of complying with QBCC pre-proceeding dispute resolution processes enlivening the Tribunal’s jurisdiction.[5]
[3]Queensland Building and Construction Commission Act 1991 (Qld), s 77(1) (QBCC Act).
[4]Ibid, s 77(2).
[5]Letter dated 21 February 2022.
A building dispute is defined to include a minor commercial building dispute, which is a commercial building dispute for a claim which does not exceed $50,000.[6] I am satisfied that the dispute is a minor commercial building dispute and that the Tribunal has jurisdiction to determine it.
[6]QBCC Act, Schedule 2.
I am satisfied that Namly served Neis with a copy of the Application on 30 March 2022.[7] Under the rules, if Neis disputed the Application it was to file a response in the prescribed form within 14 days after it was given a copy of the Application. No response in the prescribed form has been filed.
[7]Affidavit of service filed 5 April 2022.
In addition, the Tribunal directed Neis to provide its response to the Application by 13 May 2022.[8] It also directed that if Neis failed to comply with the direction to do so Namly may be entitled to a final decision.[9] Neis failed to comply with the direction to file a response to the Application. Namly has requested a decision by default.[10] I find it is entitled to a final decision.
[8]Directions made 11 April 2022, direction 3.
[9]Ibid, direction 4.
[10]Filed 16 May 2022.
I am satisfied that Neis’ failure to comply with the directions of the Tribunal is an appropriate basis for granting Namly final relief under the QCAT Act.[11] Further or in the alternative, I am satisfied that, as a result of Neis’ failure to file a response, the requirements of section 50A of the QCAT Act in regard to the granting of a decision by default have been met. Subsequent to the time for compliance with the directions, Neis concedes, in correspondence with Namly’s lawyers and with the Tribunal, that the amount claimed is owing.[12]
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48(2)(b)(i) (QCAT Act).
[12]Emails dated 13, 14 and 20 June 2022.
Namly’s directors have given evidence supporting the claims in the Application and give evidence that no amounts had been received.[13] Their evidence is, and I accept, that:
(a)Neis is a licenced building contractor, which offered to perform carpentry works for Namly in relation to a building project Namly was undertaking;
(b)Separately Neis offered to order wall frames and roof trusses for the project. Those materials were to be installed by Neis if its offer to perform carpentry works was also accepted;
(c)Neis informed Namly that deposits were required to be paid to the suppliers of the wall frames and roof trusses;
(d)Namly accepted Neis’ offer to order the materials and paid to Neis the deposits in the sum of $48,400, as invoiced, for payment to the suppliers;
(e)Neis only paid the sum of $2,600 to one of the two suppliers;
(f)Namly became aware that Neis had not paid $45,800 of the deposits to the suppliers and in order to secure the wall frames and roof trusses for its project was required to pay a further $45,800 to the suppliers directly;
(g)Neis misapplied $45,800 paid to it and despite demand has not repaid Namly any amount.
[13]Affidavit of Michael Yew Tay Poh and Affidavit of Katherine Lay Hong Chew both filed 16 May 2022.
The Tribunal may order the payment of an amount found to be owing by one party to another,[14] restitution[15] and costs.[16]
[14]QBCC Act, s 77(3)(a).
[15]Ibid, s 77(3)(d).
[16]Ibid, s 77(3)(h).
I am satisfied that Namly is entitled to be paid $45,800 by way of restitution or as damages for breach of the agreement to supply materials and $358 in respect of the filing fee paid to the Tribunal.
In addition to the specific orders sought in the Application, Namly seeks legal fees in the amount of $1,980. The Application foreshadowed that Namly would seek costs[17] but did not include a copy of the lawyer’s tax invoice, which is attached to the Request for default decision.
[17]Application, Part D.
Although the Tribunal has a broad discretion to award costs in building disputes, I am required to afford Neis procedural fairness. For those reasons, I am not satisfied that it is appropriate to exercise my discretion to award costs, which were not specifically included in the Application.
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