Exit Distraction Free Reading Mode
- Unreported Judgment
Sticklen v McGowan Building Services Pty Ltd  QCAT 129
McGowan Building Services Pty Ltd t/as McGowan Homes
On the papers
Senior Member Brown
27 May 2016
BUILDING DISPUTE – application for leave to be legally represented – consideration of relevant factors – whether proceeding likely to involve complex questions of fact or law – whether interests of justice require the granting of leave to be legally represented
Domestic Building Contracts Act 2000 (Qld) s 79
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43
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
What is this application about?
- Ms Sticklen and McGowan Building Services Pty Ltd t/as McGowan Homes (‘McGowan Homes’) entered into a contract for the construction of a residential dwelling. The parties have fallen into dispute. Ms Sticklen has commenced a proceeding for a domestic building dispute in the Tribunal. She has filed an application to be legally represented. McGowan Homes opposes the application.
- The parties entered into a contract in August 2014 for McGowan Homes to build a residential dwelling for Ms Sticklen. Ms Sticklen says that McGowan Homes failed to carry out the building works in a tradesman like manner and with due diligence. She says that the contract provided for a price adjustment for variations to the scope of work and that pursuant to ss 79 to 84 of the Domestic Building Contracts Act 2000 (Qld) (‘the DBCA’) variations were required to be in writing prior to the relevant building work being carried out. Ms Sticklen says that the building works commenced on or about 8 August 2014 and that on 30 April 2015 McGowan Homes ceased the works.
- Ms Sticklen is seeking the recovery of damages for the costs of the rectification and completion of defective and incomplete work in an amount exceeding $47,616.38, together with liquidated damages totalling $13,680.00.
- Attached to Ms Sticklen’s application for a building dispute is a schedule of defective and incomplete work. McGowan Homes says in its response that it is unable to plead to the allegations made by Ms Sticklen as to the breach of statutory warranties contained in the DBCA. The response contains what is a request for further and better particulars of the application.
- McGowan Homes says that it is unable to plead to Ms Sticklen’s allegations as to the scope of the duty of care owed by it, and another request for further and better particulars of the application is contained in the response.
- McGowan Homes says that there is no requirement for a variation to be in writing if the variation is for domestic building work that is required to be carried out urgently and it is not reasonably practicable in the particular circumstances to produce a variation document before carrying out the work.
- McGowan Homes says that practical completion was not within 151 days from the contract date as asserted by Ms Sticklen, and refers to various contractual provisions in relation to variations, identifying 17 variations and identifying what it says was the practical completion date that would have been achieved in the absence of Ms Sticklen’s breach of contract.
- McGowan Homes says that it did not demobilise and cease work at the site as alleged by Ms Sticklen, and that Ms Sticklen refused McGowan Homes access to the site and began to occupy the dwelling before practical completion and in breach of the terms of the contract. McGowan Homes says that Ms Sticklen, in breach of the contract, impeded the access by McGowan Homes and its contractors to the site, fundamentally affecting the ability of McGowan Homes to perform works at the site. The result, says McGowan Homes, of Ms Sticklen taking early possession is that Ms Sticklen is solely liable for loss and damage sustained after she went into occupation, and in this regard relies on various provisions of the contract.
- McGowan Homes says that there are defects, however those defects are attributable to Ms Sticklen’s breach of contract in taking early possession of the dwelling.
- McGowan Homes alleges contributory negligence against Ms Sticklen, saying that Ms Sticklen has materially contributed to any loss and damage suffered by her. McGowan Homes also says that it is entitled to a set-off in respect of monies due and owing under the contract and in respect of variation works.
- McGowan Homes counter-claims against Ms Sticklen for monies due and owing under the contract, costs for additional works performed outside the scope of the contract and various other amounts. The total counter-claim by McGowan Homes is $60,388.86.
- Attached to Ms Sticklen’s application is a schedule detailing defects and incomplete work. That schedule refers to a total of 45 items. Attached to the response filed by McGowan Homes is a schedule in response.
What do the parties say about the application for leave to be represented?
- In support of her application for leave to be represented, Ms Sticklen says that the response and counter-application filed by McGowan Homes raises various arguments of a legally technical nature in relation to which she has no experience or knowledge, and that she requires legal representation to respond to those matters. Her submissions outline what she says those matters are.
- Ms Sticklen says that she requires legal representation to assist her in dealing with legal arguments, in obtaining expert evidence and in representing her at the final hearing of the proceeding.
- In response, McGowan Homes says that the only basis upon which Ms Sticklen can apply to the Tribunal for leave to be legally represented is on the basis that the proceeding involves complex questions of law and fact. McGowan Homes says that Ms Sticklen’s argument in this regard is misconceived and that Ms McGowan’s submissions are merely a ‘shopping list’ of legal issues that need to be determined by the Tribunal without explaining why the issues involve complex issues of law or fact requiring legal representation.
- McGowan Homes refers to previous decisions of the Tribunal in circumstances where applications for leave to be represented have been denied. McGowan Homes says that the proceeding: involves the determination of the question of whether or not the domestic building work was defective or incomplete; requires an assessment of whether or not Ms Sticklen’s claim for liquidated damages was reasonable under the terms of the contract; and involves determination of a simple debt collection claim for payment remaining outstanding under the contract.
- McGowan Homes says that the calculation of damages is not something requiring legal representation and is a task to be undertaken by the Tribunal. In relation to any argument as to what documents are included in the building contract, this will depend on the wording of the contract and pre-established common law tests that the Tribunal can apply based on the evidence provided by the applicant and respondent. McGowan Homes says that the disputes as to the statutory provisions in the DBCA do not present any novel or complicated legal issues. McGowan Homes says whether or not it is liable for defects as a result of Ms Sticklen taking early possession of the property requires the Tribunal to examine the contract, which does not involve matters of legal or factual complexity. As to the claim by McGowan Homes for contributory negligence, McGowan Homes says that such claims are common in the Tribunal.
- McGowan Homes says that the presence of legal representatives would only serve to add a degree of complexity, cost and delay in what is said to be a relatively simple matter. McGowan Homes says that whilst it acknowledges that Ms Sticklen may prefer to be represented based on her inexperience, Ms Sticklen will receive the necessary assistance from the Tribunal during the proceeding.
- McGowan Homes says that it has little or no experience in the type of proceeding before the Tribunal and that if Ms Sticklen is given leave to legally represented, it will be significantly disadvantaged because it is unable to afford continued legal representation.
- The starting principle in any consideration of whether to grant representation in the Tribunal is that parties represent themselves unless the interests of justice require otherwise. Of specific relevance to the present application is s 43(3) of the QCAT Act and a consideration of whether the proceeding is likely to involve complex questions of fact or law.
- Without traversing the entirety of the documents filed to this point in time in the Tribunal, it is appropriate to highlight a number of issues.
- There is clearly a dispute between the parties in relation to whether the terms of the contract have been complied with. Ms Sticklen says that McGowan Homes abandoned the work site and failed to complete the building works. McGowan Homes says that Ms Sticklen refused it access to the dwelling to complete the building works. In addition, McGowan Homes raises the further allegation that Ms Sticklen went into early possession in breach of the contract.
- It appears that there is a dispute, although the nature and extent of the dispute is not articulated in either the application or the response, relating to variations. In her application, Ms Sticklen refers to the statutory requirement for variations to be in writing, although she does not specify in her application the relevance of this assertion. McGowan Homes responds to this issue by acknowledging the requirement for variations to be in writing other than in particular circumstances, relying upon s 79 of the DBCA. It is entirely unclear what precisely the nature of the dispute is between the parties relating to variations, other than to say it appears from both the application and the response that the issue of variations and whether claimed variations meet the relevant statutory requirements is in dispute.
- McGowan Homes also raises the issue of the contractual provisions relating to variations and the extension of time for the building works to reach practical completion.
- The final point I will refer to is the allegation of contributory negligence, although the contributory negligence alleged by McGowan Homes is not particularised in the response.
- The application and response do not adequately address the issues in dispute between the parties, either in content or in form. It will be necessary for both parties to give careful consideration to the documents filed. Acknowledging that there are no formal pleadings in the Tribunal, proceedings in building disputes are often the subject of pleading type documents. It would be useful for the parties to adopt such an approach in this proceeding in order to clearly identify the issues in dispute.
- In my view the proceeding is likely to involve complex issues of fact and law including, but not limited to, the matters I have outlined in these reasons. It is appropriate that both parties are given leave to be legally represented. The presence of legal representatives will assist the Tribunal in identifying and narrowing the issues in dispute, which is consistent with the objects of the QCAT Act to have the Tribunal deal with the matter in a way that is accessible, fair, just, economical, informal and quick.
- The granting of leave to both parties to be legally represented does not mean that both parties must engage a lawyer. Whether they do so is a matter entirely for the parties.
- Both parties are granted leave to be legally represented in these proceedings.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 43(1).
- Published Case Name:
Sticklen v McGowan Building Services Pty Ltd
- Shortened Case Name:
Sticklen v McGowan Building Services Pty Ltd
 QCAT 129
Senior Member Brown
27 May 2016