Strathfield Group Limited v Overton - [2012] QCAT 587

CITATION:

Strathfield Group Limited v Overton and Anor [2012] QCAT 587

PARTIES:	Strathfield Group Limited (Applicant)
v
David Isle Grant Overton Glenys May Overton (Respondents)

APPLICATION NUMBER:

RSL071-10

MATTER TYPE:

Retail shop leases matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Sandra G Deane, Member

DELIVERED ON:

23 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to strike out the Retail Shop Lease dispute application is dismissed.

2. The time for Strathfield Group Limited to comply with Direction 4 of Directions made on 28 February 2012 is further extended to 4.00 pm on 7 December, 2012.

3. If Strathfield Group Limited does not comply with direction 2 of these directions to file and serve its material by 7 December 2012 then the Retail Shop Lease dispute application will be dismissed and Mr and Mrs Overton are at liberty to apply to the Tribunal for an order for costs.

4. If Strathfield Group Limited does comply with direction 2 of these directions to file and serve its material by 7 December 2012 then the time for Mr and Mrs Overton to comply with Direction 5 of Directions made on 28 February 2012 is further extended to 4.00 pm on 21 January 2013.

CATCHWORDS:

RETAIL SHOP LEASE MATTER – Application to strike out or dismiss

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 28, 48

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

The Tribunal has made various directions for the conduct of this matter. Strathfield Group Limited has failed to comply with some of the directions.
Consequently the Overtons made an Application for an order striking out or dismissing this proceeding and seeking an order that Strathfield pay their costs of defending the proceedings fixed at $30,340.97.
The Application was received by the Tribunal on 25 September, 2012.
The Tribunal has since received written submissions from the parties.
Section 48 of the QCAT Act provides that the Tribunal may dismiss or strike out the proceeding where an applicant causes unnecessary disadvantage to another party by not complying with a Tribunal order without reasonable excuse.[1]
[1] Sections 48(1)(a) and 48(2)(a) QCAT Act.
The Tribunal must consider the extent to which the party causing disadvantage is familiar with its practices; the capacity of the party causing disadvantage to act on the tribunal’s orders and directions; and whether the party is acting deliberately.[2]
[2] Section 48(3) QCAT Act.
This Application arises out of the failure of Strathfield to:
a)file an Amended Points of Claim by 13 March 2012 in accordance with the Tribunal’s direction of 28 February 2012; filing it more than 4 months later on 17 July 2012.
b)file all material on which it intends to rely by 27 April 2012 in accordance with the Tribunal’s direction of 28 February 2012.
c)file all material on which it intends to rely by 31 July 2012 in accordance with the Tribunal’s direction of 17 July 2012, which extended the original date.
d)file all material on which it intends to rely by the time of making the Application to strike out.
The Overtons claim that Strathfield’s contravention of the Tribunal directions has caused them disadvantage in that:
a)they have had the matter ‘hanging over them for more than 2 years’;
b)they have had their counterclaim negated by Strathfield’s voluntary administration;
c)they have had their preparation time to meet the claim for damages reduced.
Despite the Tribunal’s best endeavours, parties commonly fail to comply with directions for the filing of material.
The objects of the QCAT Act include the requirement that the Tribunal deals with matters in a way that is accessible, fair, just, economical, informal and quick.[3]
[3] Section 3(b) QCAT Act.
Section 28(3)(e) of the QCAT Act requires the Tribunal to ensure that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. This is the reason that the Tribunal makes directions such as the delivery of material upon which a party intends to rely.
A matter which must be established is whether any disadvantage was ‘unnecessary’ as distinct from a disadvantage experienced in the usual course of a dispute proceeding.
Strathfield’s non-compliance has not only affected the Overtons but has also taken up the time and resources of the Tribunal and has prevented the Tribunal from taking effective steps to provide an expeditious resolution of this matter.
If the delay caused the final hearing to be delayed this would potentially expose the Overtons to a larger claim for interest if the Tribunal determines any amounts are owing by them to Strathfield. The final hearing date has not yet been impacted by Strathfield’s delay. Submissions in relation to the exercise of the appropriate discretion to award interest may be required in those circumstances.
Strathfield delivered a draft Statement prior to the directions hearing held on 2 October, 2012 providing at least some details of the nature of the claims which are to be advanced.
The final hearing is set down for 13 and 14 February 2013. The Overtons still have a reasonable amount of time to respond to Strathfield’s evidence.
It is a very serious matter for the Tribunal to dismiss an application for determination of a dispute under a retail shop lease, without allowing a hearing of that application to take place. Dismissal of the application without a hearing taking place would deprive Strathfield of the opportunity to have an independent body make a determination about its claims. A case must be clearly made out to support a dismissal.
There is limited evidence of prejudice to the Overtons, who are self represented, caused by the delay.
Strathfield gave evidence that:
a)the solicitor with carriage of the matter was unfit for work for a 3 week period in July 2012 and continued to suffer personal difficulties which impacted her ability to devote time and focus to her professional duties till mid to late August when another solicitor took carriage of the matter.
b)from about late August 2012 until mid to late September 2012 its director, Mr Hovanessian, from whom instructions and a statement of evidence was required was unable to assist due to ill health.
c)from about late September 2012 its director, Mr Hovanessian, from whom instructions and a statement of evidence was required had limited availability to assist due to other commitments, which had accumulated due to his ill health.
Whilst there is no medical certificate provided in relation to Mr Hovanessian’s ill health there is no evidence before the Tribunal to cast doubt on the evidence provided.
In the absence of evidence to the contrary in view of this evidence which explains the most recent, as distinct from the earlier, delay the Tribunal is not prepared to find that the non-compliance with the Tribunal’s directions was without reasonable excuse.
Further delays by Strathfield in progressing this application to final determination will not be tolerated and I therefore make the following directions:
a)The time for Strathfield to comply with Direction 4 of Directions made on 28 February 2012 is further extended to 4.00 pm on 7 December, 2012.
b)If Strathfield does not comply with this direction to file and serve its material by 7 December 2012 then the application will be dismissed and the Overtons are at liberty to apply to the Tribunal for an order for costs.
c)If Strathfield does comply with this direction to file and serve its material by 7 December 2012 the time for the Overtons to comply with Direction 5 of Directions made on 28 February 2012 is further extended to 4.00 pm on 21 January 2013.