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Skaines v Kovac Enterprises Pty Ltd

 

[2006] QSC 120

Reported at [2007] 1 Qd R 98

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Applications Division

PROCEEDING:

Application

COURT:

DELIVERED ON:

Delivered ex tempore on 19 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2006

JUDGE:

Fryberg J

ORDER:

Application dimissed

CATCHWORDS:

PROCEDURE – DECISIONS OF PARTICULAR COURTS – INDUSTRIAL COURTS AND TRIBUNALS - where respondent seeks relief in the Commercial and Consumer Tribunal – where a typographical error meant the applicant made an offer to settle for ten percent of its actual intended settlement price – where applicant purported to rescind that offer by post – where respondent purported to accept the original offer – where applicant seeks a declaration that no valid and binding contract exists between the parties, or for recision of that contract or for a declaration that that contract has been terminated, avoided or rescinded – whether a higher court should consider settlement agreements arising out of proceedings in a Tribunal - whether the Commercial and Consumer Tribunal has jurisdiction to consider settlement agreements

Queensland Building Services Authority Act 1991 (Qld), s 77

Commercial and Consumer Tribunal Act 2003 (Qld), s 8, s 40(2)

Buchanan, T. v Cooke, S. [2005] QCCTB 96 (4 March 2005), cited

Fraser Property Developments Pty Ltd v Somerfeld [2005] QCA 134; CA No 10072 of 2004, 29 April 2005, cited

Suncool Pools & Spa’s Pty Ltd v Freedom Pools & Spas [2005] QCCTB 4 (8 February 2005), cited

COUNSEL:

G I Thompson for the applicant

No appearance for the respondent

SOLICITORS:

SJP Law for the Applicant

 

SUPREME COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

FRYBERG J  [2006] QSC 120

 

 

No BS1623 of 2006

 

ANTHONY WARREN SKAINESApplicant

 

and

 

KOVAC ENTERPRISES PTY LTD

(ACN 100 107 560)Respondent

 

 

BRISBANE

 

DATE 19/05/2006

 

ORDER


HIS HONOUR:  The applicant is a builder.  He is the respondent in proceedings pending before the Commercial and Consumer Tribunal.  Those proceedings were initiated by the respondent in this Court, Kovac Enterprises Proprietary Limited.

 

Kovac alleges in the Tribunal that it made a contract for the performance of domestic building work with Mr Skaines for a fixed price.  It alleges that an amount of money which Mr Skaines is claiming from it, some $127,000, is more than the amount of the fixed price contract which it has paid and that it does not owe such money.

 

It seeks relief from the Tribunal of the sort described in section 77(2)(b) of the Queensland Building Services Authority Act 1991.

 

Mr Skaines, in those proceedings, denies that the contract was for a fixed price and instead, counter-claims for the amount of money which he alleges is owing.

 

The proceedings continued through a series of directions hearings until by a letter from the Tribunal to the parties, sent in December 2005 or January 2006, the dates 27 and 28 of February 2006, were appointed for trial.

 

On the 12th of January 2006, following notification of those dates, the solicitors for Mr Skaines sent Kovac a letter referring to the proceedings and offering to settle the matter on the basis that Kovac pay Mr Skaines $8,000, inclusive of legal costs and outlays, in full and final satisfaction of the proceedings, within 28 days of its acceptance of the offer.  That offer was to remain open for a period of 14 days.

 

The evidence before me, which is uncontradicted, is that that letter contained a typographical error and should have said $80,000, not $8,000, that being the solicitor's instructions at the time.

 

That mistake was realised by the solicitors by the 18th of January, because on that date, a further letter was sent to Kovac, withdrawing the earlier offer on the basis that it contained a typographical error and re-making an offer to settle for $80,000 on like terms.

 

The second letter would in the ordinary course of the post have been delivered on the 20th of January or at the very latest, on the 23rd of January.

 

There is evidence in the letter to which I am about to refer, which suggests that the ordinary course of the post applied to the mail of Kovac in January 2006.

 

By letter dated the 25th of January, hand delivered to the solicitors for Mr Skaines, Kovac purported to accept the offer contained in the first letter.

 

It then notified the Tribunal that the proceedings were settled and forwarded copies of the first letter and the purported letter of acceptance. 

 

The solicitors for Mr Skaines informed the Tribunal by letter that the first offer had been withdrawn and that this had occurred prior to its acceptance.  The solicitors advised the Tribunal that they wished the hearing to proceed. 

 

On the 3rd of February, the Tribunal of its own motion, called a directions hearing at which both parties attended.  The chair of the Tribunal, Ms Schaeffer, at that hearing, announced that there appeared to be doubt about the jurisdiction of the Tribunal and vacated the trial dates.  She directed that the parties make submissions as to the jurisdiction of the Tribunal.

 

Since that time, Kovac has made no submission to the Tribunal.  The solicitors for Mr Skaines wrote a letter in toward the end of February, in which they submitted that the Tribunal did have jurisdiction and set out reasons why that was so.

 

However, they also advised the Tribunal, that they proposed to proceed to seek relief in this Court in relation to the alleged compromise and the Tribunal acceded to that course. Consequently, the proceedings in the Tribunal have in effect come to a temporary halt. 

 

Mr Skaines now applies in this Court by originating application for a declaration that there is no valid and binding contract between him and Kovac, for rescission of such a contract in the alternative, or in the further alternative, for a declaration that any such contract has been terminated, avoided or rescinded.

 

I was informed by counsel for Mr Skaines, that this course had been adopted because of a series of decisions in the Tribunal in which it had been held that the Tribunal would not embark upon a consideration of settlement agreements and treated itself as not having jurisdiction to do so.

 

I was referred in particular to decisions of the Tribunal constituted by Mr Moon in Suncool Pools and Spas Proprietary Limited v. Freedom Pools and Spas, [2005] QCCTB 4 (8 February 2005) and Buchanan, T v. Cooke, S [2005] QCCTB 96 (4 March 2005) proceedings 178 of 2004.  In those cases it was held that the Tribunal would not proceed to determine the existence or construction of a compromise agreement when its jurisdiction to determine a building dispute on the merits depended upon whether such a valid agreement had been made.  I was told that for this reason, relief was sought in this Court relating to the agreement. 

 

In this Court, Mr Skaines' solicitors attempted to serve both Kovac and its principal, Mr Kovac.  Kovac was served by sending the relevant documents to its registered office. Mr Kovac evaded service.  Service upon him, of course, was not necessary.  No appearance was made for Kovac Enterprises Proprietary Limited today.  However, Mr Thomson for Mr Skaines, has very fairly put the arguments available on both sides before me.

 

I have no doubt that this Court would have jurisdiction to resolve the points that Mr Skaines wishes to have resolved today.  However, it seems to me that it is not appropriate that I do so.  That is because there are pending proceedings before the Tribunal which in my view, ought to be resolved by the Tribunal.

 

The jurisdiction of the Tribunal in the circumstances of the present case depends upon section 77 of the Queensland Building Services Authority Act 1991.  Subsection (2) provides that without limiting the Tribunal's powers to resolve a dispute, the Tribunal may exercise a number of powers.

 

The dispute there referred to is that in subsection 1 which provides "a person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute".  Plainly enough that confers implied jurisdiction on the Tribunal to hear the matter of the dispute.  If anything further were needed, it is to be found in section 8 of the Tribunal's constituting act, the Commercial and Consumer Tribunal Act 2003, where the Tribunal is given jurisdiction to deal with the matters it is empowered to deal with under an empowering Act.  The Building Services Authority Act is an empowering Act.  The jurisdiction of the Tribunal has been discussed in the Court of Appeal in Fraser Property Developments Pty Ltd v. Somerfeld [2005] QCA 134.

 

Mr Thomson has submitted that I should proceed with the application because there is concern based not only on the two Tribunal decisions to which I have referred, but also upon anecdotal experience in the Tribunal that it will refuse to proceed with the issues before it, and more particularly, that it will refuse to determine whether there remains in existence a building dispute within the meaning of section 77(1).It seems to me quite plain that if there is such a dispute in existence, the Tribunal has jurisdiction. 

 

It also seems to me that if a party before the Tribunal alleges the continued existence of such a dispute and another party to the proceedings in the Tribunal denies the continued existence of such a dispute, the obligation falls upon the Tribunal to determine whether it has jurisdiction.

 

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.  I intend these expressions in a very general sense.

 

These matters must necessarily be resolved in order to determine the mixed question of fact and law which governs the jurisdiction of the Tribunal: that is, whether there now exists the dispute which founded the proceedings.

 

It is the duty of the Tribunal to resolve jurisdictional facts and to determine its own jurisdiction.

 

In my view, the practice, if it is a practice, alleged by Mr Skaines is one which ought not to be followed.  I think that it is most undesirable that parties should be encouraged to run off to a court because the Tribunal does not wish to decide such questions.

 

More importantly, it is in my view a misconstruction of section 40(2) of the Commercial and Consumer Tribunal Act 2003 to hold that the Tribunal may make an order of the type there described without first determining that it does not have jurisdiction over the dispute submitted to it.

 

Of course, in the present case in the circumstances that have happened, no such order has been made, but it seems to me that the Tribunal could not make such an order unless it first resolved the questions which determine its jurisdiction,  those being the questions to which I have already referred.

 

That being so, it is my view that this Court should not interfere in the course being taken in the Tribunal.  That is particularly so since to do so at the present time would, in my view, be premature.  The Tribunal has asked for submissions as to jurisdiction.  They have been provided, or at least have been provided on behalf of Mr Skaines.  The Tribunal should be asked to make a ruling based on the submissions and on any other submissions which the parties might be minded to place before the Tribunal.

 

On the material before me there is every reason to think that the ruling might well be favourable to Mr Skaines.  I do not propose to embark upon a consideration of the merits of that question for to do so would be to pre-empt the hearing in the Tribunal, which could well be embarrassing when I have not had submissions made to me on behalf of Kovac.

 

In my judgment the proper course is to allow the Tribunal proceedings to go forward and I do so in the expectation that the Tribunal will do what it is required to do by the legislation:  that is determine whether it has jurisdiction.  If it determines that it does not have jurisdiction it will no doubt make an order which is capable of either appeal or, depending upon the terms of the order, resolution in some other way.  For these reasons the application is dismissed.

 

...

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Editorial Notes

  • Published Case Name:

    Anthony Warren Skaines v Kovac Enterprises ACN 100 107 560

  • Shortened Case Name:

    Skaines v Kovac Enterprises Pty Ltd

  • Reported Citation:

    [2007] 1 Qd R 98

  • MNC:

    [2006] QSC 120

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    19 May 2006

Litigation History

Event Citation or File Date Notes
Primary Judgment [2007] 1 Qd R 98 19 May 2006 -

Appeal Status

No Status