O'Neill & Dowthwaite v Freedom Pools
[2010] QCAT 213
•17 May 2010
| CITATION: | O’Neill & Dowthwaite v Freedom Pools [2010] QCAT 213 |
| PARTIES: | Ms Carlye O’Neill and Mr Richard Dowthwaite |
| v | |
| Freedom Pools |
| APPLICATION NUMBER: | RE002-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 17 May 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS : | Re-opening – where mediation agreement – where no hearing by the tribunal - s 136 QCAT Act – legal representation – s 43 QCAT Act – costs – where application misconceived – whether unnecessary disadvantage - ss 100, 102 QCAT Act |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: |
| RESPONDENT: |
REASONS FOR DECISION
On 12 November 2009 the parties entered into a mediation agreement that settled all matters between them in proceeding number BD452-09. The agreement provided that Freedom Pools would undertake rectification work to the satisfaction of the Queensland Building Services Authority and when the rectification was complete the applicants would pay Freedom Pools $5,575. The agreement was expressed to be in full and final satisfaction of all claims and demands each party may have against the other arising out of a contract dated 10 March 2009 for the construction of a pool at the applicants’ address.
Freedom Pools completed the rectification work. It was inspected by the Authority some time in mid December 2009 and, by the applicants’ own admission, approved.
The applicants admit that they did not pay $5,575 as required by the mediation agreement. They say that there was a verbal agreement between the parties to delay “hand over” of the pool until January 2010. The mediation agreement does not link handover and payment; rather it links Authority approval and payment.
In early January 2010, the applicants noticed that the pool coping had started to crack. As at the date of this application, the pool coping has significant cracking and there is evidence that the pool is out of level by about 48 mm along its length.
The applicants have applied to reopen BD452-09. The grounds for the application appear to be that the pool is exhibiting the same problems that were the subject of the original proceedings.
Freedom Pools object to the reopening. It says that:
a)There is no proceeding before the tribunal because BD452-09 has been completed.
b)The applicants have not demonstrated a reopening ground.
The difficulty with this application is that a reopening is only available when the proceeding has been heard and decided by the tribunal – see section 136 of the QCAT Act. This proceeding was finalised by agreement between the parties. Therefore, the tribunal has no power to entertain the application.
Freedom Pools has filed an application for leave to be legally represented. The application as filed does not address any of the criteria in section 43 of the QCAT Act. Leave is, therefore, refused.
Freedom Pools has also filed an application for costs. Section 100 of the QCAT Act provides that each party usually bears its own costs. Section 102 of the Act sets out the matters to which the tribunal may have regard when considering whether to order costs.
10. Freedom Pools says that the tribunal should order costs because section 47 of the QCAT Act allows the tribunal to strike out a proceeding if it is “misconceived” or “lacking in substance”. Freedom Pools submits that the application is both misconceived and lacking in substance. That is true.
11. It also argues that the tribunal should order costs because the applicants have unnecessarily disadvantaged Freedom Pools, within the meaning of section 48(1), by failing to comply with the tribunal order. The settlement agreement was not reduced to an order of the tribunal nor has Freedom Pools demonstrated “unnecessary” disadvantage. The only disadvantage it points to is the fact of having to file a response to this application. That cannot be said to be “unnecessary” disadvantage.
12. Freedom Pools has not demonstrated how the interests of justice require an order for costs. In view of my decision to refuse legal representation, it is difficult to see how Freedom Pools would justify the quantum of its claim for costs. The application for costs is dismissed.
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