Turcinovic v Kavvadas
[2011] QCAT 470
•10 October 2011
| CITATION: | Turcinovic v Kavvadas [2011] QCAT 470 |
| PARTIES: | Hajrudin Turcinovic t/as HNT Civil Building Construction Maintenance (Applicant/Appellant) |
| v | |
| Mr Vasillios Kavvadas (Respondent) |
| APPLICATION NUMBER: | BD401-08 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member |
| DELIVERED ON: | 10 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] Vasillios Kavvadas file two copies in the Tribunal and give one copy to Hajrudin Turcinovic of its response to Hajrudin Turcinovic’s Scott Schedule by 4pm on 25 October 2011. [2] Both parties must file copies in the Tribunal and give one copy to the other party of any experts reports upon which they intend to rely by 4pm on 11 November 2011. [3] The directions hearing listed for 19 October 2011 is vacated and the matter is listed for a directions hearing on 23 November 2011 at 1:30pm. |
| CATCHWORDS: | Vacation of guillotine order |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Background
Hajrudin Turcinovic (the builder) commenced two separate applications against Vasillios Kavvadas (the developer) in 2008 in the then Commercial and Consumer Tribunal with respect to works carried out at two different sites. One site was at Bulimba (this application 401-08) and the other at Morningside (402-08).
Both applications have an unfortunate history of delay both in the Commercial and Consumer Tribunal and subsequently in QCAT.
Whilst the applications have not been joined in QCAT they have to some extent run parallel for example with compulsory conferences being conducted on the same date by the same Member in both matters on more than one occasion.
In both matters both parties have been ordered to file Scott Schedules at different times. In this matter it was ordered in April this year that both parties file Scott Schedules, Turcinovic with respect to variations claimed and Kavvadas with respect to defects and incomplete work set out in his counter claim. This wasn’t done.
The matter came before me at a directions hearing on 21 June 2011. There had been non compliance by Hajrudin Turcinovic in progressing the matter by failing to file statements of evidence and the Scott Schedule. Kavvadas also had not filed a Scott Schedule.
In those circumstances I made an order extending the time for the filing of statements of evidence and the Scott Schedule by Turcinovic until 26 July 2011. I also ordered that if that order was not complied with then the application would be dismissed and the matter would progress only on the basis of the counter claim. (Order 3)
Kavvadas was required to file his Scott Schedule by 9 August however there was no corresponding guillotine order with respect to that direction. Kavvadas’s Scott Schedule was not filed until 22 August.
On 26 July Turcinovic filed in the Tribunal and gave to Kavvadas’ solicitors two folders which were labelled file number 401-08 which did include a Scott Schedule. However the material enclosed in that folder including the Scott Schedule did not relate to 401-08 it related to the Morningside dispute 402-08.
On 26 August Turcinovic wrote to the Tribunal and to Kavvadas’s solicitors advising he had incorrectly filed the Scott Schedule with respect to the 402-08 dispute and not 401-08. He said this was an error and at that point enclosed the Scott Schedule for 401-08.
[10] The matter came on for a directions hearing before myself on 6 September and Turcinovic was invited to apply to vacate order three of 21 June and Kavvadas was to respond.
Application to vacate the order
[11] Turcinovic has submitted in support of his application to vacate the order that:
§He was confused and lodged documents in the wrong application
§He was not alerted to the error
§There was confusion also on the respondents part as well as they had sent an email referring to file number 402 as Bulimba whereas it was in fact Morningside
§Kavvadas did not deliver their Scott Schedule in time either
[12] Kavvadas submitted that:
§There had been substantial delay by Turcinovic in this matter already
§Turcinovic did not sufficiently explain why he was confused about which application he was to file the Scott Schedule in
§It would be inconsistent with the objects of the QCAT Act i.e. section 3(b) which requires the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick, if the order was vacated.
[13] He submitted that the guillotine order was in accordance with the objects and to vacate it now would be inconsistent with the objects and would prejudice the resolution of the respondent’s counter claim by allowing Turcinovic to a further opportunity to delay the proceedings.
Finding
[14] I accept Turcinovic’s submission that he was confused with respect to the applications and the matter in which the Scott Schedule was to be filed. Turcinovic is no longer legally represented and has appeared before me in directions hearings. I have observed his general confusion on the part of Turcinovic and his business manager Mr Baggalay with respect to the two applications.
[15] I also accept the Kavvadas’ submissions that there has been substantial delay in the application. Having read the file it is apparent that although more recently the delay has been at the hands of Turcinovic, Kavvadas has also been non compliant with orders particularly in the Commercial and Consumer Tribunal.
[16] The Tribunal does have as one of its principal objects to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
[17] If I was satisifed that Turcinovic had ignored the direction to deliver a Scott Schedule and the consequential guillotine order I would not entertain vacating the order. I do not think this is the case. I am satisfied that Turcinovic was confused as to which matter he was to file the Scott Schedule in by 26 July. I also accept that having realized his mistake he attended the filing of the Scott Schedule. I think in the circumstances it is fair to order the vacation of order 3 of my orders of 21 June.
[18] I agree that the matter (including Kavvadas’ counter claim) should be determined without further delay. The matter is close to hearing. Turcinovic has now filed the Scott Schedule and has reponded to Kavvadas’ Scott Schedule.
Orders
Vasillios Kavvadas file two copies in the Tribunal and give one copy to Hajrudin Turcinovic of its response to Hajrudin Turcinovic’s Scott Schedule by 4pm on 25 October 2011.
Both parties must file copies in the Tribunal and give one copy to the other party of any experts reports upon which they intend to rely by 4pm on 11 November 2011.
The directions hearing listed for 19 October 2011 is vacated and the matter is listed for a directions hearing on 23 November 2011 at 1:30pm.
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