Tim Hook t/as Asset Tiling Services v North Brisbane Homes Pty Ltd (in liquidation)

[2013] QCAT 240

CITATION: Tim Hook t/as Asset Tiling Services v North Brisbane Homes Pty Ltd (in liquidation) [2013] QCAT 240

PARTIES:	Tim Hook t/as Asset Tiling Services (Applicant/Appellant)
v
North Brisbane Homes Pty Ltd (in liquidation) (Respondent)

APPLICATION NUMBER: REO004-13

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Robert F King-Scott, Member

DELIVERED ON: 20 May 2013

DELIVERED AT: Brisbane

ORDERS MADE

1.    Order proceedings be reopened.

2.    Request the Registrar to allocate dates for further hearing.

CATCHWORDS:

REOPENING – respondent failed to appear at hearing – Member heard matter in his absence – respondent had filed application for adjournment of hearing – Member unaware of application.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 138, s 139

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. On 25 February 2013 the Tribunal made a decision in this matter in the absence of the respondent, Tim Hook trading as Asset Tiling Services.

2. The decision was as follows:-

a)Tim Hook trading as Asset Tiling Services pay North Brisbane Homes Pty Ltd (in liquidation) the sum of $7,534.01 [being the claim of $5,771.66 plus interest of $781.05 and costs fixed at $1,500] by 4pm on 31 March 2013; and

b)The cross-claim of Mr Hook be dismissed.

1. On the morning of the hearing, there was no appearance by Mr Hook.

2. Unbeknownst to the Tribunal, Mr Hook had filed an application seeking an adjournment of the hearing because on the day of the hearing he would be out of town on a business matter.

3. It is acknowledged by the Tribunal that Mr Hook’s application did not reach the Case Manager until 7 March 2013, some 10 days after hearing.

4. Mr Hook has now brought an application to reopen the proceedings. The basis of his application is that he had applied for the matter to be adjourned and that he had to be out of town on another business matter. It is apparent from his written submissions that Mr Hook thought it had been adjourned.

5. Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides for a reopening application. Section 139 sets out the process and provides, inter alia, as follows:

   (2)Each party to the proceeding must be given an opportunity to make, within the period stated in the rules, written submissions about the application.

   (3)The Tribunal –

   (a)must consider any written submissions made under subsection (2) about the application;  and

   (b)may decide whether or not to reopen the proceeding entirely on the basis of the documents, without hearing or meeting of any kind.

   (4)The Tribunal may grant the application only if the Tribunal considers –

   (a)a reopening ground exists for the applicant party;  and

   (b)the ground could be effectively or conveniently dealt with by reopening the proceeding under the provision whether or not an appeal under Part 8 relating to the ground may also be started.

6. In written submissions, the solicitor for North Brisbane Homes Pty Ltd (in liquidation) (the company) in opposing the application, submitted:

a)The Tribunal has a statutory obligation to deal with matters in the ways that are accessible, economical and quick.  He submitted the proceedings had been listed for hearing on numerous occasions including 25 February 2013, 4 December 2012 and 5 September 2012 and that there have been a number of directions given in order to have the matter set for hearing. 

b)The respondent was informed on 5 September 2012 that the matter may be heard on 25 February 2013 but did not take any necessary steps to make himself available for that hearing.

c)The liquidators have incurred unnecessary legal costs which would be thrown away.

d)There will be further delay in listing the matter for hearing.

e)No reasonable excuse has been provided by Mr Hook as to why he was unavailable for the last hearing date.

1. I am not aware that the matter had been adjourned previously at Mr Hook’s request, however, there had been some delay because Mr Hook had failed to comply with the Tribunal’s directions. An adjournment had been granted at an earlier date because the company had gone in to liquidation.

[10]  In respect to the last matter, I requested Mr Hook to provide submissions in response to the submissions of the company.  Mr Hook obliged, but in those submissions did not at any stage state reasons for his unavailability, other than that he had another business engagement. His submissions supporting the application to reopen are derogatory of the solicitor for the company and contain a number of thinly disguised expletives. One cannot help forming the view that Mr Hook does not take these proceedings very seriously. 

[11]  Although the criticism of Mr Hook in not pursuing his application for an adjournment is understandable, it is not uncommon for a layperson, in Mr Hook’s position to misinterpret silence following an application for an adjournment as amounting to an adjournment.

[12]  The fault in not following up the application lies with the Tribunal and although I have serious doubts that Mr Hook would have succeeded in his application for an adjournment I am obliged in accordance with the principles of natural justice to allow Mr Hook the opportunity of being heard on the merits of the case.

[13]  I, therefore, direct that the proceeding should be reopened. I will refer the matter back to the Registrar to allocate a date for the further hearing.