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  • Unreported Judgment

Seet v Begbie

 

[2016] QCAT 128

CITATION:

Seet v Begbie [2016] QCAT 128

PARTIES:

Shyann Seet

(Applicant)

 

v

 

Adam Begbie t/as BB Design Build (formerly Greenstreet)

(Respondent)

APPLICATION NUMBER:

BDL041-16

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

6 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Shyann Seet must file in the Tribunal a written explanation as to why, on 18 May 2016 and 1 June 2016, her representative Airlie Norton failed to appear at the directions hearing, by:

4:00pm on 10 June 2016.

  1. Shyann Seet must file in the Tribunal two (2) copies and give to Adam Begbie t/as BB Design Build (formerly Greenstreet) one (1) copy of any submissions addressing the preliminary question for determination by the Tribunal: Is Adam Begbie t/as BB Design Build (formerly Greenstreet) a proper respondent?, by:

4:00pm on 30 June 2016.

  1. The submissions must address:
  1. Who were the contracting parties in respect of the building works at 11 Armitage Avenue, Mandalay, Qld;
  2. In what capacity is Adam Begbie named as respondent;
  3. On what basis is it said that Adam Begbie is liable to Ms Seet for the alleged defective building work;
  4. In what capacity is BB Design Build named as respondent;
  5. On what basis is it said that BB Design Build is liable to Ms Seet for the alleged defective building work.
  1. Shyann Seet must file in the Tribunal two (2) copies and give to Adam Begbie t/as BB Design Build (formerly Greenstreet) one (1) copy of:
    1. the building contract relating to the works the subject of Shyann Seet’s application;
    2. all documents in the power or possession of Shyann Seet identifying the parties to the building contract, by:

4:00pm on 30 June 2016

  1. Adam Begbie t/as BB Design Build (formerly Greenstreet) must file in the Tribunal two (2) copies and give to Shyann Seet one (1) copy of any submissions in response, by:

4:00pm on 21 July 2016.

  1. Unless a party requests an oral hearing by 4:00pm on 28 July 2016, the preliminary question will be determined by the Tribunal on the papers, without an oral hearing not before 4:00pm on 28 July 2016.

CATCHWORDS:

BUILDING DISPUTE – failure by party to appear at directions hearings – where basis upon which party named as respondent unclear – case management – use of case management to clarify issues in dispute – directions for determination of preliminary question

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4, 43

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

  1. [1]
    Shyann Seet has filed an application for a domestic building dispute. In her application, Ms Seet has completed the details at Part A nominating Ms Airlie Norton as her proposed representative.
  2. [2]
    The nomination of a proposed representative in an application for a domestic building dispute does not mean that the Tribunal has granted leave for an applicant to be represented. Before considering whether or not to permit a party to be represented, the party must first file an application for leave to be represented.
  3. [3]
    Parties to a proceeding in the Tribunal should represent themselves unless the interests of justice require otherwise.[1]
  4. [4]
    Ms Seet has not filed in the Tribunal an application for leave to be represented. At a directions hearing on 20 April 2016, I gave leave for Ms Seet to be represented at the directions hearing by Ms Norton.[2] The parties were directed to file further material and the matter was listed for a directions hearing on 18 May 2016.
  5. [5]
    Unsuccessful attempts were made to telephone Ms Norton on 18 May 2016 to secure her attendance at the directions hearing. The calls were diverted to an electronic message bank. Further directions were made on 18 May 2016 listing the matter for a directions hearing on 2 June 2016. Ms Seet was directed to explain her failure to attend the directions hearing on 18 May 2016.
  6. [6]
    The Tribunal registry emailed to Ms Norton the directions made 18 May 2016. On 20 May 2016, Ms Seet forwarded an email to the Tribunal in which she noted that she had been ‘given leave to have my agent represent me.[3]
  7. [7]
    Ms Seet’s email also contained an earlier email she had received from Ms Norton in which Ms Norton said: ‘This just seems like utter rot and rubbish. You already advised as did I why you could not be in Brisbane for the Directions Hearing!
  8. [8]
    At the directions hearing on 1 June 2016 attempts were again made to telephone Ms Norton. As occurred on 18 May, the contact number provided by Ms Norton was diverted to an electronic message bank.
  9. [9]
    There have now been 2 occasions on which Ms Seet’s representative has been unavailable or otherwise failed to attend a directions hearing.
  10. [10]
    The Tribunal has not given leave for Ms Seet to be represented in the proceeding. Ms Seet was given leave to be represented by Ms Norton at the directions hearing on 20 April 2016. The Tribunal has granted an indulgence to Ms Seet by permitting her to be represented at the subsequent directions hearings. I should observe that the Tribunal would have granted Ms Seet such an indulgence had her representative appeared.
  11. [11]
    The resources of the Tribunal are valuable. The failure by a party to attend directions hearings is not only discourteous to the Tribunal and inconvenient to the other party, it is wasteful of scarce Tribunal resources.
  12. [12]
    Ms Seet is directed to provide to the Tribunal an explanation in writing why her representative, Ms Norton, failed to attend the directions hearings on 18 May 2016 and 2 June 2016. Ms Seet is not permitted to be represented in the proceeding in the absence of an order of the Tribunal. This will require Ms Seet to file an application for leave to be represented. Any such application will be considered and determined on the merits.
  13. [13]
    The application filed by Ms Seet names “Adam Begbie – BB Design Build (formerly Greenstreet)” as the respondent. Ms Seet seeks relief in the form of an order that the QBCC ‘re-open the case based upon the initial complaint date which was within the 6 years and 3 months statute.[4] Ms Seet also seeks an order that ‘the builder … be responsible for the expanding and increasing number of cracks appearing at the property …[5]
  14. [14]
    Ms Seet attaches to the application a number of documents. The relevant building contract in respect of the works the subject of the application is not attached. A document titled “Greenstreet Homes Platinum Turn Key Specifications”, dated 18 October 2007, is attached to the application. The application also attaches an Initial Inspection Report dated 27 June 2014 issued by the Queensland Building and Construction Commission under the hand of John Cherry. Whilst the application does not make it clear, the report presumably relates to the building works the subject of Ms Seet’s application. Two complaints regarding the building works are referred to, one relating to cracks in the external wall and one relating to cracks in the ceiling. Relevant to Ms Seet’s application, the licensee or representative name is stated in the report to be “Greenstreet Homes Pty Ltd (deregistered)”. Correspondence from the QBCC to Ms Seet, attached to the application, refers to a complaint ‘about building work performed by Greenstreet Homes Pty Ltd’.[6]
  15. [15]
    In his response, Mr Begbie says that the builder of the dwelling, the subject of the application, was Greenstreet Homes Pty Ltd and not BB Design Build. He says that Greenstreet Homes Pty Ltd was deregistered in January 2012.[7]
  16. [16]
    Ms Seet says that:[8]

Greenstreet Homes is the company effectually [sic] being sued by the landlord M. Shyann Seet for failure to rectify an outlining [sic] cause of movement and drainage … ASIC Company Search as of 2016 for Greenstreet Homes as evidence that they are now a defunct company as of 2012.

  1. [17]
    Mr Begbie says that he is unable to provide to the Tribunal a copy of the building contract due to the effluxion of time. He has filed a certificate of currency of insurance dated 14 February 2008 issued by Master Builders Insurance Services relating to construction works at the property identified by Ms Seet in her application. The certificate identifies the builder as Greenstreet Homes Pty Ltd.
  2. [18]
    The basis upon which Mr Begby has been named as a respondent is unclear from Ms Seet’s application or any subsequent material she has filed in the Tribunal.
  3. [19]
    The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) include having the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[9] The objects of the Act are achieved by the Tribunal encouraging the early and economical resolution of disputes before the Tribunal and ensuring that proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.[10]
  4. [20]
    The active case management of disputes before the Tribunal is central to the objects of the Act and the discharge of the Tribunal’s functions. Case management involves, among other things, ensuring that the positions of the parties to a dispute are clear. A lack of clarity means that parties cannot properly prepare their cases which in turn creates an impediment to the prospects of reaching a negotiated resolution of the dispute.
  5. [21]
    Ms Seet must make clear the basis upon which Mr Begbie has been named as a respondent. Until this occurs, Mr Begbie and/or BB Design Build will remain uncertain about the basis upon which Ms Seet pursues her application against them. Consistent with the objects and functions of the Tribunal it is appropriate that directions are made in the proceeding for the determination of a preliminary question:

“Is Adam Begbie – BB Design Build a proper respondent?”

  1. [22]
    The following directions are made:
  1. Shyann Seet must file in the Tribunal a written explanation as to why, on 18 May 2016 and 1 June 2016, her representative Airlie Norton failed to appear at the directions hearing, by:

4:00pm on 10 June 2016.

  1. Shyann Seet must file in the Tribunal two (2) copies and give to Adam Begbie t/as BB Design Build (formerly Greenstreet) one (1) copy of any submissions addressing the preliminary question for determination by the Tribunal: Is Adam Begbie t/as BB Design Build (formerly Greenstreet) a proper respondent?, by:

4:00pm on 30 June 2016.

  1. The submissions must address:
  1. Who were the contracting parties in respect of the building works at 11 Armitage Avenue, Mandalay, Qld;
  2. In what capacity is Adam Begbie named as respondent;
  3. On what basis is it said that Adam Begbie is liable to Ms Seet for the alleged defective building work;
  4. In what capacity is BB Design Build named as respondent;
  5. On what basis is it said that BB Design Build is liable to Ms Seet for the alleged defective building work.
  1. Shyann Seet must file in the Tribunal two (2) copies and give to Adam Begbie t/as BB Design Build (formerly Greenstreet) one (1) copy of:
  1. the building contract relating to the works the subject of Shyann Seet’s application;
  2. all documents in the power or possession of Shyann Seet identifying the parties to the building contract, by:

4:00pm on 30 June 2016

  1. Adam Begbie t/as BB Design Build (formerly Greenstreet) must file in the Tribunal two (2) copies and give to Shyann Seet one (1) copy of any submissions in response, by:

4:00pm on 21 July 2016.

  1. Unless a party requests an oral hearing by 4:00pm on 28 July 2016, the preliminary question will be determined by the Tribunal on the papers, without an oral hearing not before 4:00pm on 28 July 2016.

Footnotes

[1]  Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 43.

[2]  Directions made 20 April 2016.

[3]  Email Shyann Seet to QCAT, 20 May 2016.

[4]  Application for domestic building dispute filed 24 February 2016.

[5]  Ibid.

[6]  Letter QBCC to Syann Seet dated 13 January 2016.

[7]  Response filed 21 March 2016.

[8]  Email Airlie Norton to QCAT, 4 May 2016.

[9]  QCAT Act s 3(b).

[10]  QCAT Act s 4(b) and (c).

Close

Editorial Notes

  • Published Case Name:

    Seet v Begbie

  • Shortened Case Name:

    Seet v Begbie

  • MNC:

    [2016] QCAT 128

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    06 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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