Paul & Newman v QLH Pty Ltd

[2009] QCAT 39

Queensland Civil and Administrative Tribunal Act 2009

CITATION:Paul & Newman v QLH Pty Ltd [2009] QCAT 39

PARTIES: Mr and Mrs Christopher Paul & Julieanne Maree Newman

v

QLH Pty Ltd

APPLICATION NUMBER:            BD146-08     

MATTER TYPE:   Building matters

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION ON THE PAPERS
OF:     Dr Bridget Cullen Mandikos

DELIVERED ON:   17^th December 2009

DELIVERED AT:   Brisbane

CATCHWORDS:  Vary terms of Order made following Mediation Agreement; Order not consistent with terms of Mediation Agreement; Section 96 of the Commercial and Consumer Tribunal Act 2003 (Qld); Section 252(3) of the Queensland Civil and Administrative Tribunal Act 2009; Urban Homes Pty Ltd v Ashton, G. & T. [2004] QCCTB 88; Redprince Pty Ltd T/A Greg Thornton Constructions V Robert Johnson [2008] CCT BD433-07; Aubry v Newstart Homes [2004]CCT B253-03 & Newstart Homes (SE Qld) Pty Ltd v Aubry [2004] CCT B258-03

APPEARANCES and REPRESENTATION (if any):     On the papers.

REASONS FOR DECISION

Background

1. On the 16^th April 2009, the Respondent, QLH Pty Ltd, applied to the then Commercial and Consumer Tribunal ("CCT"), seeking variation of an order that had been made by the CCT on 1^st July 2008.

1. The originating Application in this matter arose out of a domestic building contract.  The Applicants engaged the Respondent to undertake various works at their property in Ashgrove, Queensland. 

1. The Applicant and the Respondent entered into an agreement entitled “Request for Consent Orders” following a mediation in this matter conducted by Mr Mark Williams, Barrister, signed on 26^th June 2008 (“the Mediation Agreement”).  This order was made by the CCT on 1^st July 2008. 

Application to Vary the 1^st July 2008 Order

1. The Respondent now seeks to have the 1^st July 2008 Order varied, arguing that it does not reflect the Mediation Agreement reached by the parties.

1. Specifically, the Respondent argues that Order (6) of the 1^st July 2008 Order does not reflect paragraph (5) of the Mediation Agreement. Paragraph (5) of the mediation agreement reads as follows:

“That upon the Respondent completing the remaining work the subject of these proceedings and obtaining a builders contract final certificate in relation to the remaining work under the contract as varied by these orders the trust moneys be paid with any accretions thereon to the Respondent.”

1. Paragraph (6) of the 1^st July 2008 order reads as follows:

“The sum of twelve thousand five hundred dollars ($12,500.00) held in the Commercial and Consumer Trust Account will be released to the respondent upon written notification to the Tribunal by the parties that the respondent has completed the remaining work the subject of these proceedings and has obtained a builders contract final certificate in relation to the remaining work under the contract as varied by these orders.”

1. The Respondent argues that the Mediation Agreement did not require the written notification of both parties, but required only the written notification of the respondent, in conjunction with a builder’s contract final certificate, indicating that the works that were the subject of the Mediation Agreement were complete.

1. The Applicant’s submissions were lodged in the CCT on 19^th August 2009.  The Applicants argue that “it was the clear intention of the parties that the balance of the Contract Price as re-negotiated in the mediation, was to be held by the CCT until the Respondent had completed the Contract Works in a proper manner”.

1. The Respondent has filed 2 sets of submissions relevant to this matter with the CCT; the first on 3^rd August 2009 and the second on 9^th October 2009.  The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the CCT.   

1. Section 252(3) of the QCAT Act provides that:

   If, under a former Act, a person has applied to a former tribunal to deal with a final decision of the former tribunal and the application has not been heard at the commencement –
   (a) the application is taken to be an application made to QCAT under this Act; and
   (b) in hearing the application, QCAT has, and only has, the functions of the former tribunal under the former Act.

Section 252(5) defines “deal with” as including amending or correcting the decision. 

1. In examining the functions of the former Tribunal (the CCT) under the former Act, I note that section 96 of the Commercial and Consumer Tribunal Act 2003 (Qld) provided that a party could apply to reopen an order if there are problems with interpretation or implementation of an order.

Relevant Authorities

1. The Respondent refers me to Urban Homes Pty Ltd v Ashton, G. & T. [2004] QCCTB 88, wherein then Member Lohrisch considered the meaning to be attributed to the terms of a mediation agreement.  Ultimately, Mr Lohrisch considered that the order as drafted did reflect the intentions of the parties, and the respondent submits that this supports their argument. 

1. The circumstances of this case are remarkably similar to those in Redprince Pty Ltd T/A Greg Thornton Constructions V Robert Johnson [2008] CCT BD433-07 (“Redprince”).  In Redprince, as in the instant case, the Applicant and Respondent had entered into an agreement entitled “Request for Consent Orders” following a mediation, also conducted by Mr Mark Williams, Barrister.  The Tribunal in Redprince also made an order in the terms of the Consent Orders, which was subsequently amended.  As to the amendment of the order in Redprince, then Member Lohrisch found that:

As the form of that variation, I can see no insuperable difficulty in the form of the Tribunal’s order simply following the form of the mediated settlement. Indeed, the mediated settlement, in the form of a consent order signed by the parties and the mediator, was obviously designed with that in mind.

The Respondent did not unilaterally control the certification process

1. The Respondent also argues that it has finished the work that is “the subject of these proceedings, as required by paragraph 5 of the Mediation Agreement.”  The Applicant argues that interpreting paragraph 5 in the way that the Respondent asserts, would allow the Respondent to unilaterally determine whether the works were completed, as the Respondent controlled the “Builder’s Contract Final Certification” process.  I do not accept the Applicant’s assertions in this regard.  The Respondent obtained the builder’s contract final certificate on 12^th September 2008.  That certificate is signed by Kylie Rowlands, a licensed building surveyor.  Ms Rowlands is a neutral party to these proceedings, and while perhaps contacted by the Respondent, could not be said to be controlled by the Respondent in the way that the Applicant suggests. 

Scope of the Mediation Agreement

1. There is conflict as to the scope of issues covered by the Mediation Agreement.  The Respondent argues that the mediation covered issues that were the subject of the Domestic Building Dispute Application filed in the CCT on 11^th April 2008 only.  The Applicant has taken the view that the mediation extended to all issues outstanding between the parties at the time of the mediation. 

1. I note that the preamble to the Mediation Agreement states that:

   By consent, the parties request that the Tribunal make the following orders to resolve the Application.

1. In using the phrase “the Application,” it is my view that the Mediation Agreement extended to the issues raised in the Domestic Building Dispute Application only, and not to any issues that went beyond the Application.  The Applicant’s solicitor, Mr James Mitchell Watt, in his affidavit dated the 19^th May 2009, swears that the mediation was not constrained to the issues raised in the Domestic Building Dispute Application only, but that it “proceeded on the basis that all areas of contention between the parties were taken into account and resolved”.

1. Mr Watt asserts that paragraph 2 of the Mediation Agreement clearly indicates this.  Paragraph 2 reads as follows:

“The Respondent within 7 calendar days of the date hereof provide to the Applicants a list of all outstanding matters upon which the Respondent requires instructions in order to complete the works under the contract the subject of these Proceedings.”

1. It appears that the Applicant places considerable emphasis on the words “the works under the contract,” arguing that all works called for under the contract were to be completed.  In my view, this construction takes the words out of their context.  I consider that the phrase “complete the works under the contract the subject of these Proceedings” means that the works that were the subject of the Applicant’s Domestic Building Dispute Application were to be completed.  Having formed this view, the works that were the subject of the Mediation Agreement, and therefore required a builder’s contract final certificate with respect thereto are those particularised in the Application. 

1. The Applicant asserts that the plumbing and tiling formed part of the contract works (Applicant’s submissions dated 19^th August 2009, paragraph 5.6).  With respect, the difficulty with this argument is that these works were not part of the Applicant’s Domestic Building Dispute Application.  If they were to be part of the Mediation Agreement, then that should have been made clear on the face of the Mediation Agreement, particularly as the Applicant had the benefit of legal representation at the mediation.

1. It is regrettable that the Orders did not reflect the precise terms of the Mediation Agreement.  The CCT has added a term to the Order that did not exist within the four corners of the Mediation Agreement; namely, that both parties notify the Tribunal that the works had been completed.  Although orders may be varied, a Tribunal cannot add terms that extend beyond a fair reading of theMediation Agreement: Aubry v Newstart Homes [2004]CCT B253-03 & Newstart Homes (SE Qld) Pty Ltd v Aubry [2004] CCT B258-03.  Adopting the approach taken in Redprince, I consider that the CCT’s Order should have reflected the language used by the parties in the Mediation Agreement.

Orders

1. Accordingly, I Order that paragraph 6 of the 1^st July 2008 Order of the Commercial and Consumer Tribunal be substituted with the following paragraph:

That upon the Respondent completing the remaining work the subject of these proceedings and obtaining a builder’s contract final certificate in relation to the remaining work under the contract as varied by these orders the trust moneys be paid with any accretions thereon to the Respondent.

1. I further Order that, having obtained the builder’s contract final certificate in relation to the remaining work under the contract, that the $12,500.00 held on trust be released to the Respondent, together with accretions thereon.

1. In the circumstances, I decline to make an order as to costs, and order that the Applicant and Respondent are to bear their own costs.