Timuss v ADG Engineers (Aust) Pty Ltd - [2015] QCAT 457

CITATION:

Timuss v ADG Engineers (Aust) Pty Ltd & Anor [2015] QCAT 457

PARTIES:	Gary Timuss (Applicant)
v
ADG Engineers (Aust) Pty Ltd (ABN 63 131 876 143) (First Respondent) Jones Lang LaSalle (Qld) Pty Ltd (ABN 40 010 411 140) (Second Respondent)

APPLICATION NUMBER:

MCDO79-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

DELIVERED ON:

29 September 2015

DELIVERED AT:

Southport

ORDERS MADE:

1. The Respondents application to dismiss the Applicant’s claim is refused.

2. The hearing date 6 October 2015 is vacated.

3. The Applicant must file with the Tribunal and serve on the Respondents by 4pm on 14 October 2015 any further affidavits and documents on which he intends to rely.

4. The Respondents must file with the Tribunal and serve on the Applicant by 4pm on 28 October 2015 all affidavits and material on which they intend to rely in response.

5. The Applicant must file with the Tribunal and serve on the Respondents any affidavits on which he intends to rely in reply to the Respondents affidavits by 4pm on 4 November 2015.

6. The parties may not rely on any evidence other than as provided for in these orders and as already filed and served without leave of the Tribunal.

7. The Application is to be listed for hearing before Adjudicator Alan Walsh at Southport for a date on or after 11 November 2015 and as the only listed matter between 11am and 5pm.

CATCHWORDS:

Application for summary dismissal of claim on grounds of vexation and abuse of process – challenge to jurisdiction – meaning of “consumer” - where grounds for dismissal of claim not made out – where Applicant had arguable case – where claim not objectively lacking in substance or with little or no chance of success – where appeal from previous dismissal – where procedural orders for affidavit evidence previously stayed on appeal – where stay of procedural orders not lifted – where denial of opportunity to file affidavit material would prevent procedural fairness – where parties sought reinstatement of previous procedural orders before hearing – where stay rendered previous orders of no utility – where further procedural orders for affidavits before hearing warranted.

Property Law Act (Qld) 1974, s 55
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 47, sch 3

Lim v New College Queensland Pty Ltd & Ors [2013] QCAT 605
Stallard v Alsun Aluminium Pty Ltd & Lee [2011] QCAT 343

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

I part heard this dispute and made orders on 16 April 2015 requiring the filing and service of further affidavits by the Applicant by 7 May 2015 and by the Respondents by 28 May 2015. I adjourned the hearing to a date to be fixed on notice to the parties for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Timuss v ADG Engineers (Aust) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCAT 457
Decision Date: 29 September 2015

CaseChat Overview and Summary

Timuss brought an action against ADG Engineers (Aust) Pty Ltd in the Queensland Civil and Administrative Tribunal, contending that the Respondents breached the Australian Consumer Law by failing to supply services with due care and skill. The Respondents applied for the claim to be dismissed on the grounds that it was vexatious and an abuse of process. The Respondents also argued that the Tribunal lacked jurisdiction as Timuss was not a consumer within the meaning of the Australian Consumer Law. The Tribunal was required to determine whether the claim was vexatious or an abuse of process, and whether Timuss was a consumer within the meaning of the Australian Consumer Law. Additionally, the Tribunal had to consider whether the Respondents' application for summary dismissal was appropriate in the circumstances.

The Tribunal found that the application for summary dismissal was not warranted. The Tribunal held that Timuss had an arguable case and that the claim was not objectively lacking in substance or with little or no chance of success. The Tribunal also found that Timuss was a consumer within the meaning of the Australian Consumer Law. The Tribunal noted that the previous procedural orders for affidavit evidence had been stayed on appeal and that the stay had not been lifted. The Tribunal held that denying Timuss the opportunity to file affidavit material would prevent procedural fairness. The Tribunal further held that the parties sought reinstatement of the previous procedural orders before the hearing, and that the stay rendered the previous orders of no utility. Therefore, further procedural orders for affidavits before the hearing were warranted.

The Tribunal refused the Respondents' application to dismiss the claim. The Tribunal vacated the hearing date of 6 October 2015 and ordered Timuss to file and serve any further affidavits and documents on which he intended to rely by 4pm on 14 October 2015. The Tribunal ordered the Respondents to file and serve all affidavits and material on which they intended to rely by 4pm on 28 October 2015. The Tribunal also ordered Timuss to file and serve any affidavits on which he intended to rely in reply to the Respondents' affidavits by 4pm on 4 November 2015. The Tribunal further ordered that the parties may not rely on any evidence other than as provided for in these orders and as already filed and served without leave of the Tribunal. Finally, the Tribunal listed the Application for hearing before Adjudicator Alan Walsh at Southport for a date on or after 11 November 2015 and as the only listed matter between 11am and 5pm.

Orders

Orders of the court

1. The Respondents application to dismiss the Applicant’s claim is refused.

2. The hearing date 6 October 2015 is vacated.

3. The Applicant must file with the Tribunal and serve on the Respondents by 4pm on 14 October 2015 any further affidavits and documents on which he intends to rely.

4. The Respondents must file with the Tribunal and serve on the Applicant by 4pm on 28 October 2015 all affidavits and material on which they intend to rely in response.

5. The Applicant must file with the Tribunal and serve on the Respondents any affidavits on which he intends to rely in reply to the Respondents affidavits by 4pm on 4 November 2015.

6. The parties may not rely on any evidence other than as provided for in these orders and as already filed and served without leave of the Tribunal.

7. The Application is to be listed for hearing before Adjudicator Alan Walsh at Southport for a date on or after 11 November 2015 and as the only listed matter between 11am and 5pm.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.