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HJ Family Homes Pty Ltd v Welstand Holidings Pty Ltd  QCAT 161
HJ Family Homes Pty Ltd
Welstand Holidings Pty Ltd t/as Bella Casa Constructions
On the papers
Senior Member Brown
19 February 2016
APPLICATION FOR REPRESENTATION - whether matter likely to involve complex questions of fact or law – whether interests of justice require the parties to be entitled to legal representation
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 29, 43
Lida Build Pty Ltd v Miller  QCATA 017
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
- On 4 February 2016 I granted leave for the parties to be legally represented in these proceedings. These are the reasons for my decision.
- HJ Family Homes Pty Ltd (“HJ”) filed in the Tribunal an application for a commercial building dispute on 11 December 2015. The claim against Welstand Holdings Pty Ltd t/as Bella Casa Constructions (“Welstand”) is for the payment of monies due and owing for building works performed by HJ for Welstand. The amount claimed is $38,111.06 plus interest. HJ attached to its application a copy of the relevant building contract between the parties. The building works are identified as the construction of a lowset brick veneer dwelling. A number of other documents are attached to the application including a defects document, practical completion stage notice and various variation authorities.
- Welstand filed a response and counter application on 2 February 2016. Whilst there are no formal pleadings in the Tribunal, it is clear from the application and the response that there are a number of issues in dispute between the parties including: a number of variation requests were not approved by Welstand; allegations of defective and/or substandard works by HJ; an assertion by Welstand to an entitlement to a set off against HJ’s claim; an assertion by Welstand of breach of contract and/or breach of an implied warranty by HJ in the performance of the building works.
- Welstand counterclaims for the cost of rectification works of $29,619.60 plus an additional claim for as yet unquantified rectification works in an amount of $10,000.
- On 23 December 2015 I made directions, among other things, listing the matter for a compulsory conference on 14 March 2016.
- On 2 February 2016, Welstand filed an application seeking leave to be legally represented in the proceedings. The grounds upon which Welstand relied in making the application were:
- The arguments between the parties are complex in nature and involve in depth contractual disputes and argument over legal principles including quantum serviet (sic) claims;
- The parties have an extensive recent history with QCAT, the Supreme Court and the BCIPA adjudication process in which Welstand has had legal representation. Welstand says that its lawyers are more easily able to identify issues and facilitate a prompt resolution;
- The relationship between the parties has deteriorated to the point where communicative intervention by Welstand’s legal representatives is required to ensure that the matter proceeds promptly and civilly before the Tribunal.
- HJ objected to the grant of leave for legal representation. HJ referred to the scheduled compulsory conference and expressed hope that the matter could be resolved without incurring additional legal costs. HJ said in response to the application that Welstand has previously tried “to hide behind legal representation”. HJ did not provide any further particulars or otherwise explain what was meant by this assertion.
- The starting point in a consideration of whether a party should be given leave to be legally represented in the Tribunal is s 43 of the QCAT Act. Parties should represent themselves before the Tribunal unless the interests of justice require otherwise.
- The Tribunal may consider a number of circumstances as supporting the giving of leave including that the proceeding is likely to involve complex question of law.
- The Tribunal must act fairly, must act in accordance with the substantial merits of the case, must observe the rules of natural justice, must act with as little formality and technicality as proper consideration of the issues permit, and must ensure that all relevant material is disclosed as far as is practical.
- The Tribunal must also take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the Tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions, and any decision of the Tribunal relating to the proceeding. As has been observed by the Appeals Tribunal, parties to proceedings before the Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of the issues in the case.
- The grant of legal representation by the Tribunal involves the exercise of a discretion. Whilst the amounts in dispute may appear modest, the response filed by Welstand clearly raises issues in relation to disputes about whether variation works were approved, whether works performed by HJ are defective and whether there have been breaches of the building contract. These are likely to involve complex questions of fact or law. For example, the issues clearly have the potential to give rise to the need for expert evidence. If both parties engage experts, a conclave will be required. If a conclave is required the parties will be required to identify the issues for consideration by the experts.
- Building disputes before the Tribunal often require an approach to the conduct of proceedings involving a greater degree of formality and technicality than other matters before the Tribunal. This is inevitably the case when building disputes often involve consideration of the interpretation of contractual terms, alleged contractual breaches, the statutory permissibility of claims, the scope of works and defective works – indeed the ambit of such claims is potentially extremely broad. The involvement of legal representatives can assist the Tribunal where complex questions of fact and law are likely to arise through identifying and clarifying the issues at an early stage. This is turn assists the Tribunal, and the parties, in a more expeditious resolution of the dispute.
- The exercise by the Tribunal of its obligations to assist the parties to understand the practices of the Tribunal and the nature of assertions made in proceedings and the legal implications of same, does not extend to the Tribunal providing advice to the parties in relation to the conduct of their claim. As such, there are obvious, and appropriate, limitations to the assistance the Tribunal may provide.
- The only bases HJ advances in opposing the application are that it wishes to restrict legal costs and an assertion that Welstand has previously ‘tried to hide behind legal representation’. I do not consider HJ’s arguments compelling particularly in light of the fact that the assertion regarding Welstand’s previous conduct is not in any way particularised or otherwise substantiated. HJ is certainly not compelled to engage legal representation. It may continue to represent itself in the proceedings.
- In all of the circumstances, I am of the view that this is an appropriate matter in which the interests of justice are served by the exercise of my discretion. The parties should have leave to be legally represented.
- I direct that the parties are granted leave to be legally represented in the proceedings.
- Published Case Name:
HJ Family Homes Pty Ltd v Welstand Holidings Pty Ltd
- Shortened Case Name:
HJ Family Homes Pty Ltd v Welstand Holidings Pty Ltd
 QCAT 161
Senior Member Brown
19 Feb 2016