Smith Development Pty Ltd v Moreton Island Development Group
[2011] QCAT 247
•2 June 2011
| CITATION: | Smith Development Pty Ltd v Moreton Island Development Group and Others [2011] QCAT 247 |
| PARTIES: | Smith Development Pty Ltd |
| v | |
| Maybrey Pty Ltd ACNO81021463 Jan-Mar Trading Pty Ltd ACNO84234846 ESR Management Pty Ltd ACNO63065207 collectively known as “The Moreton Island Development Group” |
| APPLICATION NUMBER: | BDL031-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member |
| DELIVERED ON: | 2 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Applicant’s application to renew the decision of the Tribunal is allowed. 2. The Respondents name be changed to Maybrey Pty Ltd ACNO81021463, Jan-Mar Trading Pty Ltd ACNO84234846, and ESR Management Pty Ltd ACNO63065207 known collectively as the Moreton Island Development Group. 3. The Respondents pay to the Applicant the sum $194,478.63. 4. There is no order as to costs. |
| CATCHWORDS: | Application to change name of respondent – problem with enforcing Tribunal’s final decision – waiver of procedural requirements and extension of time – Queensland Civil and Administrative Tribunal Act 2009, ss 61, 133, 134(2) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Nil |
| RESPONDENT: | Nil |
REASONS FOR DECISION
Background
Smith Developments Pty Ltd (Smith) had applied for an order that Moreton Island Development Group (MIDG) pay monies alleged to be owing to it under a domestic building contract.
In the application Smith stated “the Respondents are four duly incorporated companies being Maybrey Pty Ltd, Jan-Mar Trading Pty Ltd, ESR Management Pty Ltd and Halajil Pty Ltd collectively known as ‘Moreton Island Development Group’”.
The Respondent in its response pleaded:
“The Respondent is (my emphasis) three duly incorporated companies being:
(a)Maybrey Pty Ltd
(b)Jan-Mar Trading Pty Ltd
(c)ESR Management Pty Ltd”.
The matter was listed for Compulsory Conference on 13 August 2010. No representative from the Respondent attended the Compulsory Conference.
The Tribunal pursuant to section 72 of the QCAT Act, made a decision adverse to the Respondent, namely that the Respondent pay the Applicant the sum of $194,478.63 and that the counterclaim would be dismissed.
The Respondent’s application to reopen the proceeding was dismissed.
The Respondent has lodged an appeal against the decision which has not yet been determined.
This application
Smith on 22 December 2010 filed an application for miscellaneous matters seeking an order:
“That the decision of Ms Patricia Hanley dated 6 September 2010 also name the three companies making up the Respondent unincorporated entity, Moreton Island Development Group, such that the decision is against Maybrey Pty Ltd ACNO81021463, Jan-Mar Trading Pty Ltd ACNO84234846 and ESR Management Pty Ltd ACNO63065207, jointly and severally as partners of the Moreton Island Development Group.”
They seek the order on the basis that MIDG is an unincorporated partnership and does not own any property in its own right.
The entity Maybrey Pty Ltd owns property.
In its present form, the final decision of the Tribunal is unable to be enforced and needs to be entered jointly and severally against the three particular entities who make up MIDG.
The Respondent’s submissions
The Respondent submits the decision of the Tribunal is a nullity as a result of non-compliance with rule 16 of the QCAT Rules.
They also submit that if the application is deemed to be an application pursuant to section 135 or section 138 of the QCAT Act, the application should be dismissed as being out of time and failing to comply with rules 90 or 92 of the QCAT Rules.
They submit that the application was filed on 22 December which was four months after the making of the original order and there is no good reason given for extending the time.
Findings
The Respondent’s argument that the decision of the Tribunal is a nullity has been raised in the application for leave to appeal and is a matter for determination in that application.
Smith’s dilemma in this matter is apparent. They have received the benefit of a decision which it is unable to enforce as the named Respondent is not a legal entity but the name given to a group of companies who together appeared to have engaged in a joint venture in constructing a house which was the subject of the dispute.
Although the Applicant has brought an application for miscellaneous matters it would have been more appropriate for the application to have been an application to “renew” a decision under section 133 of the QCAT Act which provides that:
1) This section applies if…
b) there are problems with interpreting, implementing, or enforcing the Tribunals final decision in a proceeding…
3) The application must:
a) be in a form substantially compliant with the rules; and
b) state the reason for the application; and
c)be made:
(i)within the period stated in the rules; and
(ii)by filing it in the Registry.
Subsection 134(2) provides that in renewing a decision the Tribunal may make:
b)any other appropriate final decision it could have made, under this Act or an enabling Act when the proceeding was originally decided.
It is apparent there are “problems with enforcing the Tribunal’s final decision”. The Respondent submits that if this is to be treated as an application for renewal:
i) it has not been made in the correct form; and
ii) it has not been made within the period stated in the rules.
This is correct.
Section 61 of the QCAT Act enables the Tribunal in appropriate circumstances to:
a) Extend or shorten a time limit fixed by this Act, an enabling Act or the rules; and
b) Waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
I intend to:
a) Waive compliance with the procedural requirement that the application for renewal be in a form substantially compliant with the rules and treat the application for miscellaneous matters as an application for renewal; and
b) Extend the time required by the rules to file that application.
I have exercised my discretion in this manner as it is apparent that on the pleadings and the submissions of the parties who the legal entities are that made up the named Respondent. The Respondent was well aware and in fact conceded that point.
Smith pleads as indicated above that the Respondent was four companies.
MIDG pleaded that:
“The Respondent is three duly incorporated companies being:
a) Maybrey Pty Ltd
b) Jan-Mar Trading Pty Ltd
c) ESR Management Pty Ltd.”
In the application for miscellaneous matters Smith has adopted that admission and seeks an order against those three companies only not the fourth company referred to in its application, Halajil Pty Ltd.
MIDG could not claim that it would be in any way surprised that the judgment was in effect a judgement against those three companies. They had pleaded that those companies were the Respondent.
It is apparent that there are problems with enforcing the Tribunal’s final decision. The Respondent when the final decision was made was aware of which entities made up the named Respondent. I consider it an appropriate case to renew the decision and make an appropriate final decision that could have been made when the proceeding was determined namely that:
i)The Respondent’s name be changed to Maybrey Pty Ltd (ACNO81021463), Jan-Mar Trading Pty Ltd (ACNO84234846) and ESR Management Pty Ltd (ACNO63065207) collectively known as “Moreton Island Development Group”.
ii)The Respondents pay to the Applicant the sum $194,478.63.
iii)There is no order as to costs.
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