Yazdani v Golbarani

[2012] QCAT 632

CITATION: Yazdani v Golbarani and Anor [2012] QCAT 632

PARTIES:	Hameed Yazdani t/a Hamco Homes
v
John Farahsheed Golbarani Anita Golbarani

APPLICATION NUMBER: BD047-09

MATTER TYPE: Building matters

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Acting Deputy President

DELIVERED ON: 24 December 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application for miscellaneous matters filed on 19 November 2012 by Mr Hameed Yazdani t/as Hamco Homes is dismissed.

CATCHWORDS:

BUILDING – where settlement agreement signed – where orders dismissing the claim and counterclaim – where application to reopen refused – whether tribunal has jurisdiction to consider application for miscellaneous matters

Skaines v Kovac Enterprises Pty Ltd [2006] QSC 120
Suncool Pools and Spas Pty Ltd v Freedom Pools and Spas (N)44-03) – 11 February, 2005

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. On 20 July 2011, on the third day of a hearing before the tribunal, the parties settled this long running and bitter dispute.  They signed a heads of agreement.  The member ordered, by consent, that the parties’ claims against each other be dismissed and that the heads of agreement be placed on the file in a container marked: “confidential, not to be opened except by order of a Member of the Tribunal”.

2. In July 2012, Mr Yazdani applied to reopen the decision on 20 July 2011.  The application was dismissed on 12 November 2012.

3. On 19 November 2012, Mr Yazdani applied for orders:

a)That the terms of settlement be amended.

b)That Mr and Mrs Golbarani pay him $135,000.

1. I have to decide whether the tribunal still has jurisdiction to hear this dispute.  Fryberg J said in Skaines v Kovac Enterprises Pty Ltd:[1]

   “In the present case, it can only determine its jurisdiction by resolving the question whether the dispute which undoubtedly existed at the time the proceedings were commenced in the Tribunal has ceased to exist.  It can only do that by deciding whether the compromise alleged by Kovac was indeed a compromise, whether the agreement for compromise has been terminated, or whether for some other reason the alleged compromise has become ineffective.”

   [1] [2006] QSC 120 at 9.

2. As Member Moon noted in a decision of the former tribunal:[2]

   “If the mediation agreement has the effect of bringing to an end the original cause of action, which the applicant might have had against the respondent, such that the applicant’s remedies arise entirely from the mediation agreement then this Tribunal does not have jurisdiction to hear and determine any claim which the applicant might have pursuant to that mediation agreement.”

   [2]Suncool Pools and Spas Pty Ltd v Freedom Pools and Spas (N)44-03) – 11 February, 2005.

3. I do not need to consider the terms of the settlement agreement.  The effect of the order of 20 July 2011 is that, so far as the tribunal is concerned, the matter is finalised and it does not have jurisdiction to consider the application for miscellaneous matters.  The enforcement of the settlement agreement – which is what Mr Yazdani really wants – is a matter for another court.