NJ King Pty Ltd v Bramwell Properties Pty Ltd
[2010] QCAT 555
•5 November 2010
| CITATION: | NJ King Pty Ltd v Bramwell Properties Pty Ltd [2010] QCAT 555 |
| PARTIES: | N J King Pty Ltd |
| v | |
| Bramwell Properties Pty Ltd |
| APPLICATION NUMBER: | REO017-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 26 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | M Howard, Member |
| DELIVERED ON: | 5 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the proceeding be reopened in respect of all issues between the parties; 2. That the orders made on 25 August 2010 in BDL207-10 be set aside; 3. That the parties attend a compulsory conference on a date to be fixed. |
| CATCHWORDS : | Where failure to attend compulsory conference- where final decision made at compulsory conference -where application for reopening- Queensland Civil and Administrative Tribunal Act –sections 72(1)(b), 137, 139, 140. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Noel King, Director, NJ King Pty Ltd |
| RESPONDENT: | Mr Tim Smith, Director, Bramwell Properties Pty Ltd |
REASONS FOR DECISION
Background to application
An application was filed in this Tribunal by Bramwell Properties Pty Ltd seeking orders against NJ King Pty Ltd arising out of a domestic building dispute. This proceeding was matter BDL207-10. NJ King Pty Ltd filed a response. The Tribunal convened a compulsory conference at 1.30pm on 25 August 2010 at the Southport Courthouse, which both parties were required to attend. The compulsory conference was the first Tribunal scheduled event after the filing of the application and response. Directions had not been made for the filing of witness statements by the parties.
At the compulsory conference, there was no appearance for NJ King Pty Ltd. At the conclusion of the conference, the Tribunal made final orders under section 72(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) in favour of Bramwell Properties Pty Ltd as follows:
- In full and final settlement
a. The Applicant be released from payment of $5,841.00 claimed by the Respondent.
b. The Respondent pay the Applicant restitution in the amount of $12,710.50 within 28 days.
c. The Respondent pay the Applicant’s application fee in the amount of $255 within 28 days.
- That the Respondent provide the Applicant within 28 days, a certificate, certifying what works have been installed by a licensed plumber.
On 7 September 2010, NJ King Pty Ltd (the applicant) filed an application for reopening. Bramwell Properties Pty Ltd (the respondent) opposes the application.
The applicable law
The legislative provisions about reopening of applications are provided for in Part 7 Division 7 of the QCAT Act. Under section 139 of the QCAT Act, the Tribunal may grant a reopening application, only if it considers that a reopening ground exists for the applicant and the ground could be effectively or conveniently dealt with by reopening the proceeding. Section 140(1) of the QCAT Act provides that if the Tribunal decides to reopen a proceeding under section 139, it must decide the issues to be to be heard and decided again.
Section 137 of the QCAT Act provides the following definitions:
137 Definitions for div 7
In this division--
hearing, of a proceeding, includes a compulsory conference for a proceeding if the person presiding over the conference decides the proceeding under section 72(1)(b).
reopening ground, for a party to a proceeding, means--
(a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
The evidence
At the hearing, the Tribunal had the application for reopening; written submissions from the respondent; copies of various correspondence and email exchanges between the parties; a copy of a facsimile from the applicant to the Tribunal on 26 August 2010 and the relevant transmission report; the application and response in BDL207-10; QCAT’s notice of the compulsory conference to both parties; and the order made on 25 August 2010 and reasons for decision of the Tribunal.
Noel King, a director of NJ King Pty Ltd, and Tim Smith, a director of Bramwell Properties Pty Ltd, gave oral evidence and made oral submissions on behalf of the entities they each represent.
Mr King stated that the applicant failed to attend the compulsory conference due to an error on his behalf. The notice for the conference specified the conference date and time of 25 August 2010 at 1.30 pm. It does not specify the day of the week. Noel King was to attend on behalf of the NJ King Pty Ltd. He says that he misread the notice and believed the conference was to take place on 26 August 2010 at 1.30pm.
He states that he did attend the Southport Courthouse at 1.30pm on 26 August, 2010, when he realised his mistake. Since then, he said he had made every attempt to rectify it, because he considered that there were matters to be discussed. He says that he wanted to be at the compulsory conference and had made previous attempts to resolve the dispute. He sent a facsimile transmission to the Tribunal registry at 16:19pm on 26 August advising of his error and requesting that the conference be rescheduled as he intended to defend the action.
10. He said he did not have any further explanation as to why he misread the date on the notice. He simply had it in his mind, from the time he received the notice advising of the scheduling of the conference, that the conference was to be held on the Thursday in that week. He did suggest that he was nervous about the proceedings and the compulsory conference as he was not used to being involved in proceedings.
11. He indicated that he had prepared a large volume of material in support of his case which he had taken to the conference. In particular, he referred to preliminary drawings which he said contradict the documents, which he described as the construction drawings, which he said were relied upon in the BDL207-10 proceeding by the respondent. He said that because he had only those preliminary drawings that there is no scope of works. He also suggested that he was not the licensed plumber on the job and that he considered he was not the responsible person. He asserted that M & M Kenny Pty Ltd received the preliminary drawings and was the licensed plumber. However, he did acknowledge quoting the job on the basis of the preliminary drawings.
12. He also said the quote stated that the work must be completed within 12 months, or would be repriced. He said that it still has not been completed. He spoke of problems between Bramwell Properties Pty Ltd and another party causing delays. He says that after some initial work was done in late 2007, he was not able to return to the job until October 2008. He also contends that in December 2009, NJ King Pty Ltd was called to the property to do work.
13. Mr Smith gave evidence that the other plumber, Mick Kenny, represented he was working for his brother, Noel King and that at no time had it been represented that a third party was involved. He says that at some point, Noel King told him Mick Kenny had left and left him in a difficult position. Initially, he met on-site with Mick Kenny and Noel King and it was represented to him that NJ King Pty Ltd would do the work. He received the tender for the work from NJ King Pty Ltd.
14. He considers that there is no real difference between the preliminary drawings and the construction drawings. He also refuted that NJ King Pty Ltd had not had the construction drawings. He considers that both sets of drawings defined the scope of work, all of which was to be done by a licensed contractor. He considers that some of the work may have been done by an unlicensed contractor.
15. He disputed Mr King’s statements that he had tried to resolve the dispute between them. He said that Mr King had attempted to have debt collectors recover the monies rather than seek to resolve the dispute. He considers that the applicant’s failure to attend the compulsory conference was a stalling tactic.
Submissions
16. The applicant’s primary submissions revolve around his mistaken belief that the compulsory conference was to occur on 26 August 2010. It was intended that he attend the compulsory conference. He argued that NJ King Pty Ltd should not have to pay for this mistake in a financial way.
17. Additionally, Mr King seemed to argue that there is a real dispute between the parties, and that in essence, NJ King Pty Ltd wanted the opportunity to try to resolve it, and if not, to make its case before the Tribunal. He had prepared documentation in support of the case for the compulsory conference.
18. The respondent argues that there are no grounds to warrant reopening and Mr Smith submits that Noel King does not want deal with the issues as this may have adverse consequences for him, especially if unlicensed contracting was found to have occurred. Accordingly, Mr Smith submitted that the non-attendance at the compulsory conference on 25 August was a stalling ploy. He also argued that Bramwell Properties Pty Ltd had represented a fair case which the Member at the compulsory conference had taken into account when deciding to determine the matter. He considers that the application and response in BDL207-10 summed up the case for each of the parties. The written submissions also dispute that the applicant has sought to resolve the matter and makes other comments relevant to the substance of the dispute between the parties.
19. Mr Smith also submits that Bramwell Properties Pty Ltd had been disadvantaged by Mr King’s non-attendance at the compulsory conference and this reopening application, as he has lost two days of work on each occasion.
Discussion and Decision
20. The QCAT Act provides for two reopening grounds. The Tribunal may grant a reopening application only if a reopening ground exists and the Tribunal considers the ground could effectively and conveniently be dealt with by reopening the proceeding.
21. If reopening is granted, the Tribunal must decide the issues in the proceeding that are to be heard and decided again.
Was there reasonable excuse for non-attendance?
22. The first ground exists if a party had reasonable excuse for not attending a hearing. A hearing is specifically defined to include a compulsory conference at which a Member decides the proceeding under section 72(1)(b). In this matter, the Member did decide the proceeding under section 72.
23. Mr King’s evidence is that he intended to attend the compulsory conference on behalf of NJ King Pty Ltd. He made an error and had it in his mind that the conference was to be held on the Thursday. This assertion is supported by the facsimile transmission which he forwarded to the Tribunal on the afternoon of 26 August 2010 once he had sought to attend the conference on that day, and discovered that he was in error and that the conference was not listed for that afternoon, but for the previous afternoon.
24. I accept that Mr King attended at the Southport Courthouse on 26 August, the day after the conference was scheduled due to a mistake on his part. His assertions are corroborated by the facsimile transmission forwarded to the Tribunal during that afternoon.
25. Mr Smith submits that I should not accept that Mr King has a reasonable excuse for not attending the conference. He considers the non-attendance was a stalling tactic. He argues that NJ King Pty Ltd does not wish to address certain issues which may reveal unlicensed contracting. However, Mr King did attend, apparently armed with documents which he says support the case of NJ King Pty Ltd albeit a day late, and wanting to participate in the proceeding.
26. Mr King’s confusion about the day on which the conference was listed is most unfortunate. However, it is a serious matter to deny a party the opportunity to present its case and participate in proceedings affecting its interests. On balance, I am satisfied that NJ King Pty Ltd had a reasonable excuse for not attending the hearing, namely the honest but mistaken belief of Mr King.
Would a party suffer substantial injustice if proceeding not reopened because of significant new evidence?
27. The second ground exists if a party would suffer a substantial injustice if the proceeding was not reopened, because significant new evidence is now available. That ‘new evidence’ is described as evidence which was not reasonably available when the proceeding was first heard and decided. This seems to indicate that the term ‘new evidence’ has the meaning generally ascribed in legal proceedings to new or fresh evidence. Accordingly, it is evidence which could not reasonably have been known by the party seeking to rely upon it at the time of the hearing of the proceeding.
28. Given the findings I have made regarding reasonable excuse for non-attendance, I do not need to proceed to make findings in respect of this issue. However, I make the observation that it does not appear that the evidence which Mr King seeks to bring to the Tribunal’s attention if the proceeding is reopened could be considered new evidence.
Can the ground be effectively dealt with by reopening?
29. The applicant’s arguments are to the effect that the ground can be effectively dealt with by reopening, as NJ King Pty Ltd will attend scheduled events and defend the claim. Bramwell Properties Pty Ltd seems to argue that the proceeding should not be reopened in essence because it has presented the case fairly and has been inconvenienced by the actions of Mr King.
30. On balance, I am satisfied that NJ King Pty Ltd genuinely intended to participate in the proceedings and present its case. Accordingly, in my view, the ground can effectively and conveniently be dealt with by reopening the proceeding and that it is in the interests of justice to do so.
The Issues to be heard and decided again
31. Given the early stage of the proceedings at which the orders were made disposing of the application, it is appropriate for all issues to be heard and decided again.
32. Accordingly, I make orders reopening the proceeding in respect of all issues between the parties and setting aside the orders made by the Tribunal on 25 August, 2010. I direct that a conference be scheduled in BDL207-10 on a date to be fixed.
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