Rose v Pollock t/a Proficient Pools
[2010] QCAT 435
•8 September 2010
| CITATION: | Rose v Pollock t/a Proficient Pools & Ors [2010] QCAT 435 |
PARTIES: Applicant: | Mr Michael & Mrs Marcia Rose |
| v | |
| First Respondent: Second Respondent: Third Respondent: | Mr Dean Pollock t/a Proficient Pools David & Mark Pawlenko Hester Constructions Pty Ltd |
| APPLICATION NUMBER: | BD476-08 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 26 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 8 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1.The third respondent’s application to strike out the first respondent’s statement of claim against the third respondent is dismissed. |
| CATCHWORDS : | Application to strike out; whether the first respondent’s statement of claim against the third respondent discloses a cause of action; no direct cause of action between first respondent and third respondent; where statement of claim claims contribution pursuant to s. 6(c) of the Law Reform Act; cause of action in negligence between the applicant and the third respondent pleaded in support of the contribution claim. Application by second respondent to strike out proceeding against them by the first respondent; where no claim formulated against the secondment respondent either in pleading form or statement of evidence; failure to comply with directions; section 48 of the QCAT Act considered. Security for costs; section 100 of the QCAT Act considered; Tamawood Ltd v Panns (2005) QCA 111 distinguished. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Wheland, solicitor of Macfie Curlewis Spiro for the applicant |
| FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT: | No appearance. Mr Stevenson of counsel instructed by Southside Property and Commercial Lawyers Mr Michael Wilson of counsel instructed by Everingham Lawyers. |
REASONS FOR DECISION
This is an application by the third respondent, Hester Constructions Pty Ltd (“Hester”), to strike out the claim made against it by the first respondent. The application was filed on 30 June 2010 and served on the first respondent, Mr Pollock on 1 July 2010[1].
[1] Exhibit 2 affidavit of service by Julia Maree Wallace
Mr Pollock did not attend the hearing despite having been served with a notice of hearing on 24 May 2010. The notice indicates that it was served on the first respondent’s then solicitors, Lember & Williams, but subsequent to that, on 10 June 2010 the Tribunal was advised that they no longer acted for Mr Pollock.
On 29 June 2010 Mr Pollock was advised by the Tribunal that he had failed to comply with the direction to file an amended defence. That same direction, which emanated from a compulsory conference, listed the application for a directions hearing on 26 July 2010. Notice of that directions hearing was sent to the parties.
Application to strike out
In the application filed 30 June 2010 Hester applied to strike out the statement of claim against it by the first respondent (“Mr Pollock”) on the following grounds:
a)Non-compliance with the first respondent with the Decision of 14 May 2010;
In the alternative in relation to security of costs:
b)The First Respondent has failed to respond to a letter seeking security of costs by the third Respondent dated 17 June 2010.
The application also refers to an annexure to it which is an alternative claim for security of costs, and an order that Mr Pollock pay the costs of the application.
The application does not include the particulars now relied on for the strike out, which is on the basis that the statement of claim does not disclose a cause of action.
Written submissions have been filed by Hester and reliance is placed on section 47(2)(a) and/or section 48(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) which is in the following terms:
“47 (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is—
(a) frivolous, vexatious or misconceived;
48 (1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
(a) not complying with a tribunal order or direction without reasonable excuse”
The submissions then identify three aspects of Mr Pollock’s statement of claim which deal with firstly, the Hester’s negligence (paragraph 69), secondly the claim for contribution made pursuant to section 6 of the Law Reform Act and thirdly, that the statement of claim is misguided because as no cause of action in negligence is pleaded by Mr Pollock against Hester, the application must fail.
It is true to say that the statement of claim does not plead any duty of care owed by Hester to Mr Pollock. What it does do, is allege that Hester, as builder, owed the Applicants as home owner a duty of care in the construction of the house. It is then alleged that by reason of that duty of care Hester ought to have exercised reasonable care and skill in carrying out the building project. In paragraph 7 it is pleaded that it was reasonably foreseeable that if the work was not carried out with reasonable skill and care the concrete slab would subside causing the Applicants to carry out rectification work. There is then a general allegation that as a consequence of Hester’s negligence in its relationship with the Applicant the Applicant has suffered loss and damage for which Hester is liable.
10. No direct claim in negligence is made by Mr Pollock against Hester but what the pleading does achieve is identifying a basis upon which Hester, if it had been sued in negligence by the Applicant, would be liable for the same loss and damage which is claimed by the Applicant against Mr Pollock.
11. The statement of claim sets out the basis upon which Mr Pollock can claim contribution under section 6(c) of the Law Reform Act. It provides:
“Where damage is suffered by any person as a result of a tort (whether a crime or not)—
(a)….
(b)….
(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.”
12. It does not matter that the Applicants have chosen not to proceed against Hester in negligence, all that needs to be established on the pleading is that if sued, and the relevant facts were proved to the satisfaction of the Tribunal, and Hester was found to be notionally liable to the Applicant, the question of the extent of Hester’s contribution would then be determined by the Tribunal.
13. Mr Pollock’s statement of claim is not intended to plead a separate cause of action against Hester but to set up a claim for contribution, and that is the only relief sought. Therefore, this is not a ground for striking out the contribution proceedings as between the Mr Pollock and Hester.
14. Hester also relies on the Mr Pollock’s failure to comply with directions, and attend the directions hearing which it is said is putting Hester at a disadvantage. Mr Pollock is now self represented.
15. The complaint is that Mr Pollock has failed to comply with directions 2 and 3 of the directions made on 14 May 2010 by filing an amended defence. However, if he chooses not to file an amended defence he will have to proceed to the hearing on the defence that is currently in place. If this is to his disadvantage then that is a consequence of his failure to comply with the direction it is not a sufficient ground to strike out his statement of claim against Hester.
16. The other direction relates to the filing of further material. This matter proceeded to a compulsory conference on 14 May 2010 and I can reasonably suppose that arising out of that conference, the parties chose to file further material and hence the direction. Once again if further material is not filed, he will have to proceed to the hearing on the material currently filed and any application to rely on new material can be considered by the Tribunal member at that time. No doubt his failure to comply with directions will be relevant to any exercise of discretion to permit further evidence.
Security for costs
17. Hester submits that as the strength of Mr Pollock’s third party claim is “non existent” and there is no claim that can be successful when prosecuted it is probable that a costs order would be made in favour of the third Respondent pursuant to section 102(3)(c) of the QCAT Act.
18. Hester also relies on passages from Tamawood v Panns[2]. However, the terms of the former Commercial and Consumer Tribunal Act which made provision for costs as considered by Justice Keane in Tamawood is, in my view, significantly different to that which is contained in section 100 of the QCAT Act. Section 100 provides:
“Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”
[2] (2005) QCA 111
19. The passage referred to in this submission in which Justice Keane had regard to the intention of the legislature with respect to costs, must be considered in light of the mandate set out in section 100. The change from “main purpose” in section 72 of the CCT Act to “must” in the QCAT Act does indicate that the legislature is expressing a clear intention, that it will only be where the interests of justice require it, having regard to criteria set out in section 102(3), a costs order will be made. In my view it is quite premature at this stage to make any assessment about either parties prospects or whether, in view of the determination above as to the strike out application, any costs would be awarded in favour of one party as opposed to the other.
20. In my view, at this stage of the proceeding one must proceed on the basis that the parties must pay their own costs it will only be after a final determination when all of the factors can be considered in section 102(3) collectively or individually that any determination about costs will be made.
21. In the circumstances, the application is dismissed.
Second Respondent’s application to strike out the First Respondents claim.
22. The second respondents David and Mark Pawlenko (“the Pawlenkos”) were added to the proceeding pursuant to an order of the Commercial and Consumer Tribunal on 18 may 2009. This followed the filing of an application in a proceeding which had included in it allegations of fact in support of the application to join the Pawenkos.[3]
[3] Application filed 7 April 2009 para 7
23. Counsel for the Pawlenkos submits that the allegations made in the interlocutory application have not been supported by either a statement claim, as is the case with Hester, nor has any evidence been put on in support of these bald allegations of fact. In addition, despite the joinder the applicants have not made any allegations against the Pawlenkos.
24. The Pawlenkos have been brought into this litigation and after more than 12 months no case has been properly formulated against them to which they can respond. This is despite directions about the filing of material and the parties having participated in a compulsory conference. Either Mr Pollock has lost interest in perusing third party proceedings against the Pawlenkos or he has no evidence to support the allegations made against them. Either way he has had sufficient time to progress his claim and has failed to do so.
25. In my view Mr Pollock’s conduct of the proceeding is putting the Pawlenkos at a disadvantage in vexatiously continuing this proceeding against them in the circumstances described above. Therefore the first respondent’s proceeding against the second respondent should be struck out.
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