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- Schneekloth v James Mullins Constructions[2015] QCAT 361
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Schneekloth v James Mullins Constructions[2015] QCAT 361
Schneekloth v James Mullins Constructions[2015] QCAT 361
CITATION: | Schneekloth v James Mullins Constructions [2015] QCAT 361 |
PARTIES: | Amanda Schneekloth (Applicant) |
v | |
James Mullins Constructions (Respondent) |
APPLICATION NUMBER: | REO009-15 |
MATTER TYPE: | Building matters |
HEARING DATE: | 7 September 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
DELIVERED ON: | 7 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Reopening - grounds for reopening - decision by consent following compulsory conference - whether matter heard and decided by Tribunal - power to reopen Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 136, s 137, s 138, Schedule 3 - Dictionary Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 92, Schedule – Dictionary Bielby v Bielby & McGrath [2010] QCAT 649 Layne v Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park [2015] QCAT 58 |
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
What is this application about?
- [1]James Mullins Constructions (“Mullins”) undertook building works for Amanda Schneekloth. Ms Schneekloth subsequently filed an application in the Tribunal. She claimed that the works were defective. Following a compulsory conference in April 2015 the matter was resolved and a decision by consent made by the Tribunal.
- [2]Ms Schneekloth now applies to the Tribunal to reopen the proceedings.
What does Ms Schneekloth say?
- [3]Ms Schneekloth says that Mullins has failed to comply with the directions of the Tribunal relating to the performance of building rectification work. She has filed material in the Tribunal setting forth the relevant history of the dispute between herself and Mullins. In her application to reopen, Ms Schneekloth seeks orders from the Tribunal that the decision made following the compulsory conference be varied to require Mullins to complete the rectification works within a new timeframe. Ms Schneekloth seeks further orders that in the event the works are not completed by Mullins within the varied timeframe, that Mullins pay to her an amount of money by way of damages.
- [4]In her submissions to the Tribunal, Ms Schneekloth states that “The ground for reopening exists in the circumstances.” The submissions go on to articulate those grounds as: “the detriment and prejudice caused to the Applicant by relying on the Order, performing the obligation in the order at great financial cost to herself and suffering the injustice and costs from the Respondent failing to comply with the Orders.”[1]
- [5]Ms Schneekloth says that the rectification work has not been satisfactorily performed and that further works will be required to be undertaken.[2]
What does Mullins say?
- [6]The submissions and affidavit filed by Mullins do not deal specifically with the basis of the application to reopen the proceedings. Rather, they respond to the issues raised by Ms Schneekloth in her affidavit and other material in relation to the original building works and the rectification works.
Discussion
- [7]
- [8]Reopening ground is defined as:
- The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
- The party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[5]
- [9]Ms Schneekloth’s application and submissions do not specifically state the reopening ground[6] other than general references to prejudice, detriment and injustice. Specifically, the submissions do not address the issue of new evidence. However, for the reasons set out below, the determination of Ms Schneekloth’s application does not turn on this omission.
- [10]An application for reopening must be made within 28 days after the relevant day.[7] “Relevant day” is defined as the day the party is given notice of the decision.[8] Ms Schneekloth’s application was not filed within the time prescribed. The Tribunal may however extend or shorten time limits or waive compliance with procedural requirements under the QCAT Act.[9]
- [11]The first issue for determination is whether the proceeding been heard and determined by the Tribunal. If the answer to this question is “no” then there is no basis for a reopening and Ms Schneekloth’s application must fail.
- [12]A “hearing” of a proceeding is defined for the purposes of Division 7 of the QCAT Act as including a compulsory conference for a proceeding if the person presiding over the conference decides the proceeding under section 72(1)(b).[10] Section 72(1)(b) is relevant in circumstances where an adverse decision is made as a result of the non attendance by a party at a compulsory conference.
- [13]
- [14]The original proceeding by Ms Schneekloth against Mullins was finalised by consent at a compulsory conference on 24 April 2015. Accordingly, the matter was not “heard and decided by the tribunal”. It follows that there is no basis upon which Ms Schneekloth can apply for a reopening.
- [15]The application for reopening must therefore be dismissed.
- [16]It is clear from the material before the Tribunal that Ms Schneekloth’s complaint is one relating to compliance by Mullins with the terms of the consent decision. The Tribunal does not have enforcement powers. Ms Schneekloth must pursue her remedies in another jurisdiction.
Orders
- The application for reopening is dismissed.
Footnotes
[1] Applicant’s submissions – para 20.
[2] Affidavit of Amanda Schneekloth filed 02.09.15 – paras 33-34.
[3] QCAT Act s 136.
[4] Ibid s 138(1).
[5] QCAT Act Schedule 3 – Dictionary.
[6] Ibid s 138(2)(a).
[7] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) r 92.
[8] Ibid Schedule – Dictionary.
[9] QCAT Act s 61.
[10] Ibid s 137.
[11] Bielby v Bielby & McGrath [2010] QCAT 649.
[12] Layne v Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park [2015] QCAT 58.