Tam Constructions v Cowan

[2013] QCAT 396

CITATION: Tam Constructions v Cowan [2013] QCAT 396

PARTIES:	Trevor Allan Must t/as Tam Constructions (Applicant)
V
Tracey Lee Cowan (Respondent)

APPLICATION NUMBER: BDL220-12

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 17 July 2013.

DELIVERED AT: Brisbane

ORDERS MADE:

Application filed on 16 April 2013 is dismissed. The proceeding is listed for an experts conclave at 1:30pm on the 10 September 2013. The application is listed for hearing for two days commencing at 9:30am on 24 September 2013.

CATCHWORDS: DIRECTIONS - Case Management – where respondent contended directions made not recorded in the Decision – where no error.

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On the 16^th April 2013 Mrs Cowan filed an application asking for orders that the Tribunal correct the directions made at a directions hearing on 3 April 2013 by adding a direction that the applicant file and give to Mrs Cowan a schedule of invoices and costs incurred by him in carrying out building work for Mrs Cowan.  Mrs Cowan contends that she heard me make that direction at the hearing.

2. When I read the application, I reviewed my notes of the directions hearing held on 3 April and was confident they did not reflect a direction of the type contended for by Mrs Cowan.  I had proposed to deal with the application at a directions hearing held on 10 July 2013 however, Mrs Cowan was insistent that I made the direction the subject of her application. I indicated to her that it is likely I did indicate to Mr Must that it would be helpful if he did supply a list of invoices and prepare a schedule because it was up to him to prove his claim and that would assist both himself and the Tribunal in that process.  Even though I was confident that I did not make the direction rather than make a decision on the application at the directions hearing, I decided to get an audio recording of the directions hearing of 3 April 2013, simply to be sure.

3. I have since listened to that audio recording and it confirms, conclusively, that I made no such direction. 

4. Mrs Cowan’s misguided view about what directions were made has resulted in the progress of this application being delayed.  She has not complied with direction 2 of the directions of 3 April 2013 and therefore the timeline for those directions had to be extended and the hearing date had to be vacated.  This is most unfortunate because the matter was simply not ready, and would not have been ready. I had no alternative but to adjourn the hearing over the objection of Mr Must because I could not see that the proceeding could be ready for hearing given the extent of the counterclaim lodged by Mrs Cowan. 

5. I reminded Mrs Cowan that it is her responsibility to prove her counterclaim for incomplete and defective work and to that end, the preparation of a Scott Schedule is her responsibility and the timeline for completion of this schedule is critical to the efficient disposition of this proceeding. There is no reason why this could not have been done, or substantially done in the interim since the directions hearing on 3 April 2013.

6. To ensure that this matter is not further delayed unnecessarily I propose to set a date for an experts conclave and hearing dates          .

7. The application is dismissed.