Saied Maboudi t/as Vakuke Pty Ltd v Firouzian - [2015] QCAT 317

CITATION:

Saied Maboudi t/as Vakuke Pty Ltd v Firouzian [2015] QCAT 317

PARTIES:	Saied Maboudi t/as Vakuke Pty Ltd (Applicant)
v
Parviz Firouzian (Respondent)

APPLICATION NUMBER:

REO003-15

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

30 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal dismisses the application made by Mr Maboudi to reopen the proceedings in BDL066-14.

CATCHWORDS:

Application to reopena proceeding – applicant relies on reopening grounds of reasonable excuse for not attending hearing and new material not available at time of hearing – applicant does not provide evidence to support assertions that a reopening ground exists – application dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 137, s 138

APPEARANCES:

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

REASONS FOR DECISION

This is an application to reopen the proceedings that were commenced by Mr Saied Maboudi trading as Vakuke Pty Ltd, against Mr Parviz Firouzian, in proceeding BDL066-14.
In short compass, the proceedings in BDL066-14 centred around a claim made by Mr Maboudi that Mr Firouzian, the principal contractor for a construction project in Springfield Lakes, owed him money. The orders sought in Mr Maboudi’s originating application were as follows:
The Respondent, Mr Parviz Firouzian, has been paid a total of $37,675.00 by Vakuke PTY LTD for his work as a joint-venture and material purchases for a construction project in Springfield Lakes. Mr Firouzian walked away from the project prior to its completion and while a number of major defects were identified. As a result, the project incurred a significant loss and the sum was deducted from final payout. Mr Firouzian needs to present the invoices and receipts for the material cost that he has been paid for, otherwise refund the money back. In addition, Mr Firouzian needs to refund the project for his share of loss.
In addition to filing a response, Mr Firouzian filed a counter-application seeking relief against Vakuke Pty Ltd. In his counter-application, Mr Firouzian asserted that he was owed a sum of $8,924.86 for building work that he carried out and for which he was not paid.
The proceedings in BDL066-14 were decided following a hearing held in Brisbane on 20 March 2015. The final decision of the Tribunal was that:
1.The Application of Saied Maboudi t/a Vakuke P/L in BDL066-14 is dismissed.
2.Saied Maboudi t/a Vakuke P/L to pay Parviz Firouzian eight thousand nine hundred and twenty four dollars and eighty six cents ($8,924.86) for the balance of the monies owed for work performed by Parviz Firouzian at 15 Cascade Street, Springfield Lakes.
Without explanation, Mr Maboudi failed to appear at the final hearing of the matter. I am satisfied that the Tribunal provided Mr Maboudi with notice of the hearing on two separate occasions. Directions and corresponding notification of the final hearing were delivered to both parties on the 10^th and 18^th February 2015.
Mr Firouzian did attend the final hearing on 20 March 2015. The hearing proceeded in Mr Maboudi’s absence. The Tribunal is not obliged to locate parties who fail to appear at a hearing once the Tribunal has correctly issued notice of the date and time of the hearing to the parties.
Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that a party may make an application to reopen proceedings if it considers that a reopening ground exists for the party.
Reopening ground, for a party to proceeding, is defined in s 137 of the QCAT Act to mean:
(a)the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b)the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
Mr Maboudi sets out his grounds for reopening as follows:
… did not appear at the hearing of the preciding (sic) and had a reasonable excuse for not attending the hearing; and the applicant will suffer a substantial injustice (sic) if the preceiding (sic) is not reopened because significant new evidence has a reason and that evidence was not reasonably available whe (sic) the preciding (sic) was first heard.
It is curious that although Mr Maboudi asserts that he had a ‘reasonable excuse’ for not attending the hearing, he does not then provide the Tribunal with any information about this, nor does he assert that he did not receive notification of the hearing date and time.
Mr Maboudi has annexed a raft of un-paginated documents, consisting of bank invoices and various receipts, to his application to reopen. Yet, despite the fact that the material is dated well prior to the date of the final hearing (several years in some instances), Mr Maboudi does not explain how these documents were not available to him at the time of the hearing on 20 March 2015. Rather, he simply asserts that there will be a substantial injustice if the Tribunal does not reopen the proceedings.
Despite Mr Maboudi’s assertions, it is also the case that Mr Firouzian argues that there would be a substantial injustice to him were the Tribunal to reopen these proceedings.
The Tribunal is obliged to provide parties with finality to disputes in a time efficient manner, and in accordance with the objectives that are contained in s 3 of the QCAT Act. Relevantly, those objectives include dealing with matters in a way that is ‘accessible, fair, just, economical, informal and quick’. It would not be in keeping with these objectives to allow a reopening in circumstances where the applying party failed to attend the hearing without explanation, or explain how the material it now provides the Tribunal was unavailable at the time of the original hearing.
For the sake of completeness, I note that on the 10 June 2015, the Tribunal directed that Mr Maboudi file any submissions in support of his application for reopening by 24 June 2015. The Tribunal’s directions are clear that the Tribunal was seeking submissions in support of the reopening application, as distinct from submissions relating to the merits of the dispute in BDL066-14. Although Mr Maboudi did file submissions on 24 June 2015, they do not disclose any basis for the reopening application, as discussed above.
Mr Firouzian filed submissions in response, received in the Tribunal on 8 July 2015. In his submissions, Mr Firouzian asserts, correctly, that Mr Maboudi failed to attend the hearing without explanation. Further, Mr Firouzian correctly asserts that Mr Maboudi has failed to establish any link between the receipts and tax invoices that he has submitted to the Tribunal together with his application to reopen, and any ground that would permit the Tribunal to reopen his application.
For these reasons, the Tribunal dismisses the application made by Mr Maboudi to reopen the proceedings in BDL066-14.