Worthington v Ryan

[2018] QCATA 192

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Worthington v Ryan [2018] QCATA 192

PARTIES:

STEVEN BRIAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS
(appellant)

v

ANDREW WILLIAM RYAN

(respondent)

APPLICATION NO:

APL045-17

ORIGINATING APPLICATION NO:

BDL274-11

MATTER TYPE:

Appeals

DELIVERED ON:

20 December 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

Leave to amend the application for leave to appeal or appeal refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT - where application out of time to amend application for leave to appeal or appeal – where delay not insignificant and unexplained – no significant detriment to the opponent – where proposed new ground of appeal futile and without prospects of success

Domestic Building Contracts Act 2000 (Qld) (repealed) Part 7
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61(1)

Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229
Poiner v Quirk & Anor [2007] QDC 299
Thompson Residential Pty Ltd v Tran [2014] QDC 156

REPRESENTATION:

Applicant:

D P Gardiner of counsel instructed by McCarthy Durie Lawyers

Respondent:

MacPherson Kelley

APPEARANCES:

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

REASONS FOR DECISION

1. There has been long and significant litigation between these parties.

2. There have been two decisions given in a building dispute between them commenced in matter BDL274–11. After the first hearing there was an appeal by Dr Ryan to the Appeal Tribunal and then by him to the Court of Appeal. The matter was returned to the original Tribunal for redetermination. After the second redetermination (second decision) Mr Worthington commenced the present appeal to the Appeal Tribunal.

3. The second decision was handed down on 17 January 2017.

4. Mr Worthington filed his application for leave to appeal or appeal on 14 February 2017.

5. On 16 February 2017 certain orders were made as to the conduct of the appeal including an order that Mr Worthington prepare an appeal book and make submissions addressing amongst other things the Tribunal’s error sought to be appealed. Mr Worthington complied with that direction as required by 10 March 2017.

6. Dr Ryan was directed to add any additional necessary documents to an appeal book and amongst other things to make submissions in response by 31 March 2017.

7. However on 15 February 2017 Dr Ryan filed an application to reopen the building dispute BDL274–11.

8. On 28 March 2017 an order was made adjourning Mr Worthington’s appeal pending determination of Dr Ryan’s reopening application. In result Dr Ryan did not file any material as required by the order made 16 February 2017.

9. On 27 June 2018 Dr Ryan’s reopening application was determined and refused.

10. Dr Ryan then proceeded to file his own appeal against the second decision on 16 July 2018.

11. On 17 October 2018 Mr Worthington filed an application seeking leave to amend his application for leave to appeal or appeal to add a…