Van Der Westhuizen v Samcol Homes Pty Ltd - [2016] QCAT 384

CITATION:

Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384

PARTIES:	Ian Van Der Westhuizen (Applicant)
v
Samcol Homes Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL213-15

MATTER TYPE:	Building matters
HEARING DATE:	On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

13 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

THE DECISION OF THE TRIBUNAL IS THAT:

1. The application for miscellaneous matters is refused.

2. The application for a decision by default (unliquidated damages) is refused.

3. The application for a decision by default (liquidated damages) is refused.

THE TRIBUNAL DIRECTS THAT:

1. Ian Van Der Westhuizen must file two (2) copies in the Tribunal and give one (1) copy to Samcol Homes Pty Ltd of:

a. Ian Van Der Westhuizen’s statement of evidence, which must be page numbered;

b. the statement from each witness to give evidence for Ian Van Der Westhuizen at the hearing including any experts; and

c. any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:

4:00pm on 4 October 2016

2. Samcol Homes Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Ian Van Der Westhuizen of:

a. Samcol Homes Pty Ltd’s statement of evidence, which must be page numbered;

b. the statement from each witness to give evidence for Samcol Homes Pty Ltd at the hearing including any experts and;

c. any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:

4:00pm on 25 October 2016

3. The application is listed for an experts’ conclave in Brisbane at 1:30pm on 29 November 2016.

4. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:

a. for the conduct of the conclave; and

b. for the conduct of the proceeding.

5. The parties must file in the Tribunal two (2) copies of:

a. The name, specialisation and contact details of the experts to participate in the conclave; and

b. An agreed list of issues to be considered by the experts at the conclave; and

c. A list of documents provided to their experts by:

4:00pm on 31 October 2016

6. If the parties are unable to agree on a set of issues, each party must file in the Tribunal two (2) copies and give to each other one (1) copy of a list of issues they propose to be considered by the experts at the conclave, by:

4:00pm on 8 November 2016

7. In either case the Tribunal will settle the list of issues to be considered by the experts at the conclave and will provide the settled list to each party and to the experts, by:

4:00pm on 15 November 2016

8. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.

9.…

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.

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Details

Case: [2016] QCAT 384
Decision Date: 13 September 2016

CaseChat Overview and Summary

The case of Van Der Westhuizen v Samcol Homes Pty Ltd involved a dispute between the plaintiff, Ian Van Der Westhuizen, and the defendant, Samcol Homes Pty Ltd, concerning the alleged non-compliance with building regulations and the quality of construction work carried out by the defendant. The matter was heard by the Queensland Civil and Administrative Tribunal. The plaintiff sought an order for unliquidated and liquidated damages from the defendant, claiming that the construction of a house was substandard and not in accordance with the building regulations.

The primary legal issue before the Tribunal was whether the plaintiff's application should be dismissed due to non-compliance with the Tribunal's directions. The Tribunal needed to determine whether the plaintiff's failure to comply with the directions had caused an unnecessary disadvantage to the defendant and whether the plaintiff had remedied the non-compliance. Additionally, the Tribunal had to consider the application of section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in the context of the case.

The Tribunal found that the plaintiff had not strictly adhered to the directions provided, which resulted in an unnecessary disadvantage to the defendant. However, the Tribunal also noted that the plaintiff had taken steps to remedy the non-compliance. Considering the application of section 48 of the Act, the Tribunal decided that the application should not be dismissed, but rather, the proceedings should be managed in a manner that ensures fairness and efficiency. As a result, the Tribunal refused the plaintiff's applications for a decision by default on unliquidated and liquidated damages. The Tribunal also issued several directions for the parties to follow, including the filing of evidence and expert statements, as well as the conduct of an experts' conclave and a directions hearing.

Orders

Orders of the court

THE DECISION OF THE TRIBUNAL IS THAT:

1. The application for miscellaneous matters is refused.

2. The application for a decision by default (unliquidated damages) is refused.

3. The application for a decision by default (liquidated damages) is refused.

THE TRIBUNAL DIRECTS THAT:

1. Ian Van Der Westhuizen must file two (2) copies in the Tribunal and give one (1) copy to Samcol Homes Pty Ltd of:

a. Ian Van Der Westhuizen’s statement of evidence, which must be page numbered;

b. the statement from each witness to give evidence for Ian Van Der Westhuizen at the hearing including any experts; and

c. any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:

4:00pm on 4 October 2016

2. Samcol Homes Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Ian Van Der Westhuizen of:

a. Samcol Homes Pty Ltd’s statement of evidence, which must be page numbered;

b. the statement from each witness to give evidence for Samcol Homes Pty Ltd at the hearing including any experts and;

c. any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:

4:00pm on 25 October 2016

3. The application is listed for an experts’ conclave in Brisbane at 1:30pm on 29 November 2016.

4. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:

a. for the conduct of the conclave; and

b. for the conduct of the proceeding.

5. The parties must file in the Tribunal two (2) copies of:

a. The name, specialisation and contact details of the experts to participate in the conclave; and

b. An agreed list of issues to be considered by the experts at the conclave; and

c. A list of documents provided to their experts by:

4:00pm on 31 October 2016

4:00pm on 8 November 2016

7. In either case the Tribunal will settle the list of issues to be considered by the experts at the conclave and will provide the settled list to each party and to the experts, by:

4:00pm on 15 November 2016

8. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.

9. If the experts prepare a joint report, that report will be the experts’ evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.

10. Except with the Tribunal’s leave, a party may not:

a. raise a matter not already mentioned in the joint report.

b. submit evidence from an expert (whether or not they participated in the conclave) that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report.

c. submit evidence from any other expert about matters mentioned in the joint report.

11. No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the Tribunal.

12. Unless the Tribunal otherwise orders all witnesses must attend the hearing in person for cross examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.

13. The application is listed for a directions hearing in Brisbane at 1:30pm on 14 December 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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