Ryan v Worthington t/as Worthington Simmons Builders

[2018] QCAT 232

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ryan v Worthington t/as Worthington Simmons Builders [2018] QCAT 232

PARTIES:

DR ANDREW WILLIAM RYAN
(applicant)

v

STEVEN BRYAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS

(respondent)

APPLICATION NO/S:

REO003-17

MATTER TYPE:

Building matters

DELIVERED ON:

27 June 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

The application for reopening is dismissed.

CATCHWORDS:

Reopening – building dispute – no evidence filed as directed prior to decision- prejudice to other party

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s138, s 139

REPRESENTATION:

Applicant:

Mr M Dillman of Macpherson Kelley, Solicitors

Respondent:

Mr D Gardiner of Counsel, instructed by McCarthy Durie Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 15 February 2017, Dr Ryan applied to reopen matter number BDL274-11.

2. The parties have filed and served submissions.

3. Relevant background to this matter is that I decided this matter on remittal from the Queensland Civil and Administrative Appeals Tribunal and the Queensland Court of Appeal. 

4. At a Directions Hearing on 8 September 2016 the respondent Dr Ryan was granted leave to further amend his cross-application with respect to costs of rectification of alleged defects in a bathroom and the cost of securing a certificate of classification.

5. At that Directions Hearing the applicant Worthington Simmons was granted leave to amend its application in certain respects.

6. Dr Ryan was directed to file and serve affidavits of evidence with respect to the extra costs by 29 September 2016 and to file and serve submissions regarding the extra costs and his claim for costs of rectification with particular reference to the findings of the Court of Appeal in relation to unlawful termination and the findings at paragraph 29 of the decision at first instance, by 29 September 2016.

7. Pursuant to the Directions, Worthington Simmons were entitled to inspect the alleged bathroom defects, to respond to the claim for extra costs, to say if they required witnesses for cross-examination in relation to the extra costs and to give submissions in reply to the submissions as to why the claim should be considered. 

8. By way of a Second Amended Counter-Application Dr Ryan increased his counter-application by $73,474.96 for the costs of rectifying the failure of waterproofing membranes in 2 bathrooms.

9. Dr Ryan did not file any supporting evidence in relation to the alleged defects or costs, but did file submissions as to why the claims should be considered.

10. On 17 January 2017 I delivered a Decision in the matter. I specifically referred at [55] to the fact that Dr Ryan had not filed any evidence with respect to the claim for extra costs and that consequently Worthington Simmons have not been able to comply with other Directions made, including to inspect the alleged bathroom defects, to file and serve an amended response to the Further Amended Counter-Application and file and serve any affidavits or to require any witness for cross-examination.

11. I went on to find at [99] that Dr Ryan is not entitled to recover his claims for the cost of rectification of defective work in the bathrooms because his own breach of contract and the consequent termination of the contract prevented performance of rectification work. I found that Dr Ryan should not benefit from his own breach of the contract and that he had no accrued cause of action for breach of contract arising out of defective work, which would enable him to sustain his claim.

12. Against that background Dr Ryan seeks to reopen the proceeding under s138(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

13. The reopening ground relied upon by Dr Ryan is that he will suffer substantial injustice if the proceeding is not reopened because significant new evidence has arisen, and that evidence was not reasonably available when the proceeding was first heard and decided.

14. In his submissions in support of the reopening application, Dr Ryan acknowledges that he did not comply with the Directions made on 8 September 2016 nor seek an extension of time for compliance.

15. The application is supported by 2 affidavits from Dr Ryan’s solicitor, Mr Dillman, dated 15 February 2017 and 9 May 2017.

16. It appears from Dr Ryan’s material that as at 6 August 2015 Dr Ryan held a quote from NL Homes to repair a bathroom at a cost of $36,748.00.  The quote records that “our investigation of these areas would indicate roof flashings have failed and waterproof membranes have failed.”

17. After the time granted for provision of supporting material, being around 10 October 2016, Dr Ryan sought a quotation to repair that bathroom and a second bathroom from NL Homes.  That business did not undertake the work requested. In December 2016 Devine Renovations undertook some repair work and agreed to comment on the cause of the bathroom defects.  On 22 December 2016 Dr Ryan departed Brisbane for a vacation. At that time, he was unable to locate or provide the Devine Renovations quotations or explanations for the cause of the leaks.  Mr Dillman swears in his May 2017 affidavit that until 22 December 2016, Dr Ryan believed Mr Dillman had sufficient information to satisfy the Tribunal’s direction made on 8 September 2016.  I note Dr Ryan has not sworn an affidavit as to the basis for that belief. On the material before me I do not accept that there was a reasonable basis for Dr Ryan’s alleged state of mind.

18. Dr Ryan submits that he received no notice of the Tribunal’s intention to deliver judgment on 17 January 2017 and had he received such notice he would have sought leave to vary the directions handed down n 8 September 2017 and to introduce the evidence which became available on 21 December 2016. I address this point later.

19. Dr Ryan says that emails from Gary Sherwood of Divine Renovations dated 21 December 2016, exhibits “B” and “E” to Mr Dillman’s affidavit of 15 February, 2017 filed in support of the reopening application, contain “significant portions” of evidence that were not available to the applicant at the time the directions were due to be complied with.  I note that the exhibits postulate causes of defects in the bathrooms.  I do not understand why inspection by an appropriately qualified person could not have revealed that information at an earlier time.  It appears to me that Dr Ryan simply did not engage an appropriately qualified person until a considerable time after his evidence was due to be filed.

20. Dr Ryan submits that he did not apply for an extension of time to comply with the directions, as he was not in a position to say when the evidence he required would become available. Many parties find themselves in that position, however, it is common to apprise the Tribunal of their circumstances and the steps being taken to comply with Tribunal directions. In that way a reasonable extension of time for compliance may be granted after hearing from the other party.  That was a course available to Dr Ryan but not taken.

21. Dr Ryan says that he will incur a cost of $58,676.51 in effecting repairs which can clearly be sheeted home to the Respondent. That is said to be the prejudice he will suffer if the proceeding is not reopened.

22. Worthington Simmons submit that the application should be refused because:

    (a)the amendment to Dr Ryan’s counter-application made on 29 September 2016 goes further than the leave granted and the direction of 8 September 2016;

    (b)because of the findings made by the Tribunal at paragraph 29 of the first decision and paragraph 99 of the decision of 17 January 2017, there is no cause of action in respect of any alleged defects;

    (c)alternatively, there was evidence available when the proceeding was heard and determined on 17 January 2017 which Dr Ryan did not obtain. Worthington Simmons would suffer extreme prejudice were the application to succeed.

23. Worthington Simmons refer me to the 2015 quote from NL Homes and a later quote from that business for the same amount. It is pointed out that no report or quotation was then obtained until tentatively 22 December 2016.  Worthington Simmons say that evidence was available or capable of being obtained by Dr Ryan, which he failed to do.

24. Finally, the submission is made that, as a consequence of work being performed on the bathrooms, no opportunity exists for Worthington Simmons to inspect the alleged defects in the bathrooms with obvious prejudice to it.

25. The application for reopening is dismissed for the following reasons:

    (a)I found in the 17 January 2017 decision that Dr Ryan had no entitlement to recover the cost of rectification of alleged defects in bathrooms.  There would have been no different result if evidence had been before me as to the cost of repair and cause of the alleged defects. I acknowledge however that the cost of rectification may have been considered in the assessment of the applicant’s damages if the rectification cost had been satisfactorily proved.

    (b)Apart from that point, Dr Ryan pleaded in his Second Further Amended Counter-Application that he claimed the cost of rectifying the failure of waterproofing membranes in 2 bathrooms in an amount of $73,474.96. That is a specific sum. The pleading particularises the cause of failure.    I would expect Dr Ryan had a basis for claiming that amount and alleging the ground of failure.  I would expect that as these matters were known to him he could have obtained evidence in a timely way to support the claim. 

    (c)Dr Ryan has ignored the Directions made on 8 September 2016. Dr Ryan could have sought an extension of time to obtain relevant evidence.  He did not do so.

    (d)It is not usual for a Tribunal to advise a party that it intends to hand down a decision and to give a last opportunity for evidence to be submitted outside the terms of Directions given in relation to filing of evidence. If a party does not provide evidence of his claim and does not seek the indulgence of the Tribunal to extend time to do so, then he must bear the consequence that the matter will be determined on the evidence before the Tribunal.

    (e)I accept the submissions of Worthington Simmons that they are prejudiced by the inability to now inspect the bathrooms and respond to the claim. That prejudice cannot be overcome because the bathrooms are no longer in their original condition because of work undertaken by another tradesman. It is also relevant that many years have passed since the work was first done.

    (f)The prejudice asserted by Dr Ryan that he will have to bear the cost of rectification of the bathrooms does not arise from an inability to put evidence before the Tribunal on a reopening. Rather it arises from his own conduct in unlawfully terminating the contract with Worthington Simmons. 

    (g)I do not think that there is a reopening ground as contended for by Dr Ryan. The evidence on which he now seeks to rely was available to him, if he had sought to obtain it, as at the time the proceeding was decided.