O'Neill v Proland Assets Pty Ltd t/a Freedom Pools & Spas
[2011] QCAT 81
•25 March 2011
| CITATION: | O’Neill v Proland Assets Pty Ltd t/a Freedom Pools & Spas [2011] QCAT 81 | |
| PARTIES: | Mrs Carlye O’Neill | |
| v | ||
| Proland Assets Pty Ltd trading as Freedom Pools & Spas | ||
| APPLICATION NUMBER: | BDL391-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 25 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application to strike out BDL391-10 (formerly minor civil proceeding 2782/10) dismissed. 2. Application BDL391-10 is stayed until such time as the proceedings in GAR277-10 are finalised and the parties have complied with any direction or order that may issue from those proceedings. |
| CATCHWORDS: | APPLICATION TO STRIKE OUT PROCEEDING – where builder brought proceedings in a former tribunal for payment under a construction contract – where the owner alleged defective work – where parties reached agreement – where agreement expressed to be in full and final satisfaction – where builder attended to rectification as required by agreement – where QBSA subsequently issued direction to rectify – where builder has applied for review of direction – where owner commenced minor civil proceedings on same subject matter – whether settlement agreement precluded action by owner – whether owner’s proceedings frivolous and vexatious Queensland Civil and Administrative Tribunal Act 2009, s 47 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Freedom Pools constructed a swimming pool at the home of Mrs O’Neill and Mr Dowthwaite in 2009. The Queensland Building Services Authority issued a direction to rectify on 18 September 2009. On 14 October 2009, Freedom filed an application in the former Commercial and Consumer Tribunal seeking payment of money outstanding under the building contract. The parties settled that proceeding by mediation the terms of which were:
a)Freedom would carry out rectification work to the satisfaction of the Authority.
b)Upon certification by the Authority, Mrs O’Neill and Mr Dowthwaite would pay the amount outstanding.
c)“The satisfaction of the parties’ obligations [under the mediation agreement] is 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 swimming pool at …”
Freedom did undertake the rectification work and it was signed off by the Authority on 22 December 2009.
On 22 January 2010, Mrs O’Neill and Mr Dowthwaite applied to reopen the proceedings the subject of the mediation agreement. I refused the application.[1]
[1] [2010] QCAT 213.
On 27 July 2010, the Authority issued a further direction to rectify. The parties agree that the direction is issued on the same grounds as the first notice. On 20 August 2010, Freedom filed an application in this tribunal to review that direction.
On 1 October 2010, Mrs O’Neill filed a minor civil dispute application claiming:
a)Removal of the existing pool; and
b)A refund of the price paid for the pool; or
c)Reinstatement of the pool with installation of a new coping.
Freedom has applied to strike out the minor civil proceedings on two grounds:
a)That the mediation agreement was in full and final settlement of the parties’ rights and obligations.
b)That the proceedings are an abuse of process under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
The mediation agreement was in full and final settlement
Freedom says that Mrs O’Neill’s right to bring any action against it was extinguished by the terms of the settlement agreement. Further, Freedom says that bringing a different action based on precisely the same subject matter, when there has been a compromise, must be an abuse of process.
Mrs O’Neill, on the other hand, relies on s 50 of the Domestic Building Contracts Act 2000 which says that a provision of an agreement that purports to restrict or take away the rights of a person for breach of a warranty mentioned under Part 4 of the Act is void. Part 4 warranties include warranties as to: the suitability of materials; that the contractor complied with legal requirements; that the contractor carried out the work in an appropriate and skilful way and with reasonable care and skill; and that the contractor adhered to the plans and specifications.
The terms of s 50 are clear and it is well settled that parties to building contracts cannot contract out of their statutory obligations. To the extent that the settlement agreement attempted to do so, it is invalid.
The proceedings are an abuse of process
[10] If the tribunal considers a proceeding is frivolous, vexatious or misconceived, lacking in substance, or otherwise an abuse of process it may order the proceeding be struck out or make costs orders against the party who brought the proceeding.[2]
[2] Section 47 QCAT Act.
[11] In Walton v Gardiner[3] Mason CJ, Deane and Dawson JJ said at page 392:
“... Proceedings ... should be stayed as an abuse of process if, notwithstanding that the circumstances did not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has formerly been disposed of by earlier proceedings.”
[3] (1992-1993) 177 CLR 378.
[12] While the minor civil proceedings (now BDL391-10) has the same subject matter – the pool – and the same complaint – that the water level is uneven – as the previous proceedings and, therefore, the settlement agreement, it is not correct to say that the proceedings are precisely the same. Freedom’s rectification work pursuant to the settlement agreement created a new set of facts from which a new cause of action might arise.
[13] What is otherwise “frivolous or vexatious” has been usefully summarised by Judge Rackemann in Collier & Collier v Brisbane City Council & anor; Sexton & Sexton v Brisbane City Council & anor[4]:
a)the words should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process;
b)the ordinary meaning of the expressions include “of little or no weight, worth or importance”; “not worthy of serious notice”; “characterised by lack of seriousness or sense”; “causing vexation”; “vexing”; “annoying”;
c)a party needs to show something more than a lack of success;
d)assistance may be gained from the description of the term “vexatious” as meaning to cause “serious and unjustified trouble and harassment”.
[4] [2009] QPEC 40.
[14] Freedom makes the point that Mrs O’Neill’s current complaints about the pool are already the subject of proceedings within the tribunal. However, Mrs O’Neill is not a party to those proceedings and, therefore, is not able to have any direct input into, or control of, those proceedings. Therefore, while Freedom may consider that the minor civil dispute proceedings (now BDL391-10) are annoying or unnecessary, I do not think that they fall within the ambit of “serious and unjustified trouble”.
[15] However, I do think that Mrs O’Neill’s application is premature. Application BDL391-10 should be stayed until such time as the proceedings in GAR277-10 are finalised and Freedom has complied with any direction or order that may issue from that proceedings.