Ruhle v Lormist Pty Ltd

[2023] QCAT 303

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ruhle v Lormist Pty Ltd [2023] QCAT 303

PARTIES:

STEPHEN SCOTT RUHLE AND CYNTHIA JOY RUHLE

(applicant)

v

LORMIST PTY LTD ACN 011 045 677 trading as Caboolture Garages

(respondent)

APPLICATION NO/S:

BDL053-21

MATTER TYPE:

Building matters

DELIVERED ON:

11 August 2023

HEARING DATE:

11 August 2023

HEARD AT:

Brisbane

DECISION OF:

Member S M Burke

ORDERS:

1.   The costs incurred by the Respondent in the preparation and filing of written submissions in response to the Applicants’ application for the production of documents filed 28 February 2023 are to be paid by the Applicants.

2.   The Applicants’ application for an extension of  time for the delivery of its amended application is allowed with an extension to 14 March 2023.

3.   The Respondent’s application to dismiss the Applicants’ proceedings is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – MISCELLANEOUS MATTERS – PROCEDURE – Application to dismiss application – Application to Produce – Application to extend time for delivery of further amended application – adherence to directions of Tribunal to deliver amended application – production of documents relevant to application – discretion of Tribunal to extend time for delivery of amended application – qualified guillotine order of Tribunal

Queensland Civil and Administrative Tribunal Act 2009, s 61, 62(3)

APPEARANCES & REPRESENTATION:

Hearing on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. The Applicants, Stephen Scott Ruhle and Cynthia Joy Ruhle (“the Applicants”) filed an application dated 28 February 2023 for miscellaneous matters seeking the production of documents by the Respondent.

2. A further application was filed by the Applicants on 14 February 2023, seeking an extension of the time for delivery of an amended application.

3. On 14 March 2023, Lormist Pty Ltd ACN 011 045 677 trading as Caboolture Garages (“the Respondent”) filed an application for miscellaneous matters seeking a determination that the Applicants’ proceedings be struck out on the basis that the Applicants failed to file and serve its further amended application as directed on 13 February 2023 to be delivered by 13 March 2023.

4. The Respondent filed submissions in response to the Applicants’ application for miscellaneous matters to produce documents on 13 June 2023.

5. Whilst the Tribunal has made a number of decisions already in this matter, concerning legal representation and other miscellaneous matters, for present purposes there is no necessity for me to set out all the details of the previous applications.

6. The starting point for present consideration is the directions made by the Member at the compulsory conference attended by the parties on 16 May 2022. Those directions related to the delivery of a further amended application with an attached issues list and further statements of evidence by the Applicants and the timing of responses by the Respondent.

7. Obviously, the Applicants failed to comply with the timetable set by the directions dated 16 May 2022. Further directions regarding compliance with the directions dated 16 May 2022 were made by the Tribunal on 28 September 2022.

8. By application for miscellaneous matters dated 15 November 2022, the Applicants sought an extension of time for compliance with the timetable for the delivery of its amended application.

9. By directions dated 16 January 2023, the Tribunal allowed the application for extension of time to 10 February 2023 with a further direction that in the event that the Applicants failed to deliver the amended application they would be unable to file any further statements of evidence unless the Tribunal permitted otherwise.

10. A directions hearing was held on 13 February 2023. The following relevant directions were made by the Tribunal:

    (a)the Applicants were to comply with direction 1 (namely the delivery of an amended application) of the directions made 16 May 2022 by 13 March 2023;

    (b)the Respondent was to comply with direction 2 (namely a response to the amended application) of the directions made 16 May 2022 by 10 April 2023;

    (c)if the Applicants did not comply with the direction to deliver its material by 13 March 2023, they would not be permitted to file an amended application or rely upon additional evidence unless the Tribunal otherwise ordered (emphasis added);

    (d)no party would be allowed to present any evidence at the hearing that was not contained in their respective statements without justifying the need for such additional evidence to the Tribunal

11. The matter was listed for hearing of the proceedings with a directions hearing to be listed not more than 28 days before the hearing date.

12. On 14 February 2023, the Applicants filed an application to extend the time for delivery of its amended application.

13. By directions dated 1 March 2023, the Tribunal directed the Respondent to deliver submissions in response to the Applicants’ application to extend time by 8 March 2023 with a determination on that issue to be made on the papers after 8 March 2023.

14. On 14 March 2023, the Applicants delivered an amended application for a domestic building dispute together with submissions supporting their application for an extension of time of one day for the delivery of the amended application.

15. On 6 June 2023, the Tribunal made the following orders:

    (a)the Respondent must file any written submissions in response to the Applicants’ application for miscellaneous matters dated 28 February 2023 relating to the production of documents by 13 June 2023;

    (b)the application for miscellaneous matters filed 14 March 2023, namely to dismiss the Applicants’ application, will be determined on the papers;

    (c)the application for miscellaneous matters filed 14 March 2023, namely to extend the time limit for compliance with the direction to deliver an amended application will be determined on the papers.

16. I shall deal with each application separately.

    Application to Produce Documents

17. Pursuant to s62(3) of the Queensland Civil and Administrative Tribunal Act (Qld) 2009 (“the QCAT Act”), the Applicants made an application for the production of the following documents:

    (a)a report dated 6 January 2023, including all attached appendices, of Tim Messer and Andriena Ortega of Innovative Structural Design Engineers (“ISDE”) being the structural engineer engaged by the Respondent to carry out a site investigation and provide a written report on the measures required to rectify defective work;

    (b)a report of Mr Messer following his site inspection on 2 February 2023;

    (c)Form 16 – inspection certificate and any other certification documents issued by Mr Messer following his site inspection on 2 February 2023.

18. The Applicants contended that the documents were required to be delivered by 6 March 2023 to enable the delivery of an amended application by 13 March 2023 in compliance with the directions of the Tribunal made on 13 February 2023.

19. According to the submissions provided on behalf of the Respondent, the documents have been provided to the Applicants.

20. The Respondent submits that the report referred to in paragraph [17](a) above (excluding the attachments) was produced on 11 January 2023 and the remaining documents were produced on 8 June 2023. It appears that both of these latter documents were provided to the Respondent by ISDE on 24 April 2023 and 6 February 2023 respectively.

21. The Respondent submits that given that the Applicants delivered the amended application on 14 March 2023, it follows that the documents identified in paragraphs [17](b) and (c) above, and provided by the Respondent on 8 June 2023, were not required for the filing of the amended application.

22. In any event, the Respondent submits that all three documents have been provided to the Applicants and that accordingly there is no necessity for the Tribunal to make any further determination under s62(3) of the QCAT Act.

23. In the circumstances, the Respondent submits that the application for the production of documents should be refused and its costs of the application for production of documents should be paid by the Applicants. The Respondent submits that it is entitled to the costs it has incurred in responding to the application for production of documents on the basis that the Applicants failed to withdraw their application, having already received the documents sought.

24. It would seem that at least two of the categories of documents were not provided until 8 June 2023, two days after the directions of the Tribunal on 6 June 2023 directing written submissions be provided by the Respondent by 13 June 2023.

25. By letter dated 8 June 2023, the solicitors for the Respondent invited the Applicants to withdraw the application for the production of documents by 9 June 2023 to ensure that costs were not incurred by the Respondent in preparing response submissions in compliance with the Tribunal’s directions of 6 June 2023.

26. The Applicants did not withdraw their application for the production of documents despite the Respondent’s caution that it would be seeking its costs of preparation of written submissions in the event the application was not withdrawn.

27. I am not satisfied that the Applicants’ delivery of the further amended application prior to receiving the documents on 8 June 2023 necessarily infers that the documents were not required but rather it is possible that the Applicants were able to endeavour to comply with the timetable despite the non-production of the requested documents.

28. I am satisfied that the Applicants’ failure to withdraw their application, having received copies of the requested documents, resulted in the Respondent incurring costs which it would otherwise have avoided had the application been withdrawn.

29. In the circumstances, in the exercise of my discretion, I accept that the Respondent is entitled to the costs incurred by it in preparing and filing written submissions in response to the Applicants’ application for production of documents and that such costs should be paid by the Applicants.

Application to Extend Time for Delivery of Amended Application

1. The Applicants seek an extension of time for the delivery of their amended application pursuant to s61 of the QCAT Act

2. Section 61 provides, inter alia, that the Tribunal may order an extension of a time limit fixed by the Act or waive compliance with another procedural requirement under the Act or the rules. An extension or waiver may be given even if the time for complying with the relevant requirement has passed.

3. The directions made by the Tribunal on 13 February 2023 required the delivery of the further amended application by 13 March 2023.

4. A further direction was made in the following terms:

   “If Stephen Scott Ruhle and Cynthia Joy Ruhle do not comply with Direction 2 herein, Stephen Scott Ruhle and Cynthia Joy Ruhle will not be permitted to file an amended application or rely upon additional evidence unless the Tribunal otherwise orders.”

5. The Applicants delivered their further amended application on 14 March 2023 and consequently seek an extension of one day.

6. Whilst this seems to be the case, the history of the matter cannot be ignored given that a number of previous directions had been made in relation to the timetable for the delivery of the further amended application.

7. The Applicants submit that the extension of one day would not cause any prejudice or detriment to the Respondent and that the Tribunal should take into account the detrimental effect on the Applicants if they are not granted an extension of time.

8. I have given consideration to the history of the matter and taken into account the various directions made by the Tribunal. I accept that the prejudice suffered by the Respondent as a result of a one day extension would be minimal and that direction 3 of 13 February 2023 allowed for a determination to be made by the Tribunal in the event of non-compliance with direction 2 of the directions of that date.

9. Whilst the direction appears to be in the form of a qualified guillotine order, in  weighing up the prejudice for either party, I have formed the view that the extension of time sought by the Applicants should be allowed.

   Application to Strike out Application

10. On 16 February 2022, the Applicants filed an amended application seeking rectification of alleged defective work. The quantum of the claim was in the vicinity of $250,681.00 plus costs.  

11. At the compulsory conference on 16 May 2022, directions were made requiring the Applicants to file a further amended application with an issues list including the quantum of damages sought by the application and further statements of evidence.

12. The Respondent submits that the directions of the Tribunal dated 13 February 2023 allowing the Applicants an extension to 13 March 2023 for the delivery of its further amended application and evidence was a guillotine order. It is submitted that the consequence of such an order is that a breach of such order entitles the Respondent to have the application dismissed.

13. The basis for dismissal relied upon by the Respondent is that the Applicants’ proceeding is “so clearly untenable and cannot possibly succeed”.

14. No substantiation is provided by the Respondent for the submission regarding the status of the Applicants’ application.

15. Given the determination of the Tribunal allowing the extension of time for delivery of the further amended application and given that the further amended application has been filed, I have determined that the matter should proceed to a further directions hearing.

16. In any event, the direction of the Tribunal dated 13 February 2023 is in the form of a qualified guillotine order providing the Tribunal with a discretion to consider otherwise if an amended application may be delivered or further evidence be provided. I have exercised such discretion in assessing whether an extension of time for the delivery of a further amended application should be allowed.

17. In the circumstances, the application for dismissal of the Applicants’ proceedings is dismissed.

    Orders

18. Based on the reasons provided above, the Tribunal determines that the following orders should be made:

    (a)The Respondent’s costs of its preparation and filing of written submissions in response to the Applicants’ application for the production of documents be paid by the Applicants.

    (b)The Applicants be granted an extension of time to 14 March 2023 for the delivery of their further amended application.

    (c)The Respondent’s application to strike out the Applicants’ proceedings is dismissed.