Layne v Samjam Investments Pty Ltd
[2015] QCAT 58
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- Unreported Judgment
- Layne v Samjam Investments Pty Ltd[2015] QCAT 58
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Layne v Samjam Investments Pty Ltd[2015] QCAT 58
Layne v Samjam Investments Pty Ltd[2015] QCAT 58
CITATION: | Layne v Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park [2015] QCAT 58 |
PARTIES: | Leisa Layne (Applicant) |
v | |
Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park (Respondent) |
APPLICATION NUMBER: | OCL044-14 |
MATTER TYPE: | Other civil dispute matters |
HEARING DATE: | 21 January 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 22 January 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | MANUFACTURED HOMES – ADJOURNMENT – whether grounds to adjourn – where no appearance by party – where letter of request to adjourn by husband – where no application for representation and no formal application for an adjournment – where grounds for adjournment not established – where Notice of Hearing sent to party – where party complied with Directions that also included time and date of hearing – where inconvenience to other party APPLICATION TO REOPEN, CORRECT, RENEW OR AMEND – CONSENT ORDERS – – where party claims to not have concurred with or verified terms of settlement agreement underlying Consent Orders – where Consent Orders signed by parties – whether party can apply to reopen a Compulsory Conference – whether Compulsory Conference is proceeding ‘heard and decided’ by Tribunal – where proceeding ended by agreement and is therefore not ‘heard and decided’ by Tribunal SLIP RULE – whether Tribunal can correct decision based on mutual mistake – where Consent Orders alleged not to reflect intent of parties – where mutual mistake if each party understood site to have differing measurements – where Tribunal’s jurisdiction limited to mistake of form PROCEDURAL COMPLIANCE – where relevant part of application not completed – where substantial compliance and no prejudice to other party – where discretion to waive procedural non-compliance RENEWAL – where problem in implementing orders due to effect on utility easement and other sites – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’ – where final decision in Compulsory Conference can only be by agreement – where Tribunal cannot set aside original Consent Orders or make final decision without parties’ agreement – where Tribunal has power to make directions for speedy and fair conduct of proceeding Queensland Civil and Administrative Tribunal Act 2009 ss 3, 4, 9, 61, 62, 84, 88, 93, 133, 134, 135, 136, Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009 r 89 Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284 Bielby v Beilby & McGrath [2010] QCAT 649 Bourne v Queensland Building Services Authority (No. 2) [2010] QCAT 597 Brown & Anor v Bath Properties Pty Ltd [2014] QCATA 146 Contrast Constructions Pty Ltd v Bartlett [2013] QCAT 399 Crawford v Commissioner of State Revenue [2014] QCAT 418 DJL v Central Authority (2000) 201 CLR 226 Doctor v Umpi Korumba ATSIC for Housing [2013] QCAT 72 Kratzmann v Queensland Building Services Authority [2013] QCAT 437 Lister v Commissioner for Children and Young People and Child Guardian (No. 3) [2011] QCATA 88 Mitchamy Developments Pty Ltd v Adams and Adams-Atkinson [2011] QCAT 133 O'Neill & Dowthaite v Freedom Pools [2010] QCAT 213 Peter Campbell Landscapes v Stormont [2011] QCAT 79 Queensland Building Services Authority v Queensland Civil and Administrative Tribunal & Anor [2013] QSC 167 Radcliff and Anor v Walker & Anor (No. 2) [2011] QCAT 569 Raffles v Wichelhaus (1864) 159 ER 375 Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 Smith v Andrews [2014] QCAT 356 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326 Urquhart v. Body Corporate for Circle on Cavill CTS 39918 [2013] QCAT 241 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: No appearance
RESPONDENT: Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park represented by Samantha Savidge and James Lapham, Directors
REASONS FOR DECISION
What is this Application about?
- [1]Leisa Layne and Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park commendably settled their dispute at a Compulsory Conference on 19 September 2014.
- [2]They signed Consent Orders that relevantly provide that Ms Layne and Samjam enter into a Site Agreement for Site 12, 545 Atkinson Dam Road, Coominya on terms including a site area of 20 metres (deep) x 22 metres (across).[1]
- [3]However, Samjam now claims it did not concur with or verify the measurements in the Consent Orders.
Should the Tribunal adjourn the Application because Ms Layne did not appear at the hearing of the Application for reopening, correction, renewal or amendment?
- [4]The Tribunal received a letter from Mr Douglas Layne dated 20 January 2015. Mr Layne is not a party to the proceeding and has not participated in the proceeding to date. Mr Layne claims to be Ms Layne’s husband and requested an adjournment because Ms Layne had “gone missing”.
- [5]I am not persuaded this establishes sufficient grounds to adjourn the Application. Even if I could waive the requirement for Mr Layne to apply to represent Ms Layne and then formally apply for an adjournment, no details are provided of when, where, how or why Ms Layne has “gone missing”. No evidence to support the request for an adjournment has been filed.
- [6]The Tribunal only received the letter requesting an adjournment on 20 January 2015. Samjam’s directors and witnesses have travelled from outside Brisbane to attend the hearing. Adjourning the hearing would be contrary to the Tribunal’s mandate to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[2]
- [7]Ms Layne was aware of the time and date of hearing. A Notice of Hearing was sent to Ms Layne on 19 December 2014. The Tribunal also made Directions that included the time and date of hearing.[3] Ms Layne filed submissions complying with those Directions on 3 December 2014 and 7 January 2015. Ms Layne has therefore been given an opportunity to respond to the Application and has done so.
- [8]To ensure procedural fairness for Ms Layne in circumstances where she has not appeared, I have considered her submissions and material filed with the Tribunal on 3 December 2014 and 7 January 2015.
- [9]I am therefore satisfied that Ms Layne has been given notice of the hearing and I may proceed to hear and decide the current Application in her absence.[4]
What is the Tribunal’s jurisdiction?
Can the Tribunal re-open the proceeding?
- [10]
Can the Tribunal correct the Decision?
- [11]Samjam claims the Consent Orders do not reflect the parties’ intent. It states that it was unsure about the site measurements during the Compulsory Conference and contacted the Tribunal Registry immediately after the Conference to remove the measurements.
- [12]Samjam claims it intended for the measurements to be 13.8 metres deep x 11.8 metres across. Ms Layne now concedes that her site measures 14 metres deep (rather than the 20 metres deep to which she agreed at the Compulsory Conference). However, Ms Layne maintains the site measures 22 metres across (including 8 metres of Site 12A)[7].
- [13]This suggests that both parties misunderstood the measurements of Site 12 at the Compulsory Conference. The parties now essentially agree that Site 12 measures approximately 14 metres deep but dispute the additional 10 metres across.
- [14]An agreement is void for mutual mistake if the agreement cannot be reasonably understood in the sense understood by either party – despite the apparent agreement, no offer was accepted.[8] The parties have consensus but are mistaken about some fact or contractual assumption that lies at the basis of the contract[9] – the site measurements.
- [15]The difficulty is that despite this apparent dichotomy, both parties signed Consent Orders with measurements that differ from each of their current suggested measurements. They effectively agree that the Consent Orders do not reflect the size of Site 12, but still disagree on the correct size of Site 12.
- [16]The Tribunal does not have jurisdiction to set aside Consent Orders based on a mutual mistake by the parties. This is because the Tribunal may only correct a decision that contains a clerical mistake, accidental slip or omission or a material miscalculation of figures or a material mistake in the description of a matter.[10] The purpose is to correct a mistake by the Tribunal in the form of the order.[11]
- [17]A misunderstanding by the parties of the site measurements is not a material mistake in the description of a matter. The measurements in the Orders are not a miscalculation or mistaken description but reflect what the parties agreed upon at the time. The parties agreed on Site 12, but have a different understanding of its size – despite the terms of the Orders. The Tribunal’s power of correction does not extend to amending Orders where the parties misunderstand each other.[12]
Can the Tribunal renew the Decision?
- [18]Samjam claims that it cannot comply with the Orders without evicting surrounding tenants. This is because Samjam claims the measurements exceed the depth of the site (and every other site on the same block) and the size of the dwelling on the site.
- [19]A party to a proceeding may apply to the Tribunal to renew a decision if there are problems with interpreting, implementing or enforcing the Tribunal’s final decision.[13]
- [20]Samjam did not complete the renewal part of the Application - Part C3. However, the Tribunal is mandated to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[14] It must ensure proceedings are conducted informally to minimise costs to the parties and is as quick as is consistent with achieving justice.[15]
- [21]Refusing to consider renewal based solely on a technical failure to complete the correct part of the Application form would be contrary to the Tribunal’s mandate. Because Samjam’s application and submissions in substance relate to renewal and Ms Layne is not prejudiced, I waive non-compliance with the procedural requirement to complete Part C3 of the Application.[16]
- [22]Ms Layne concedes that the 20 metres deep measurement includes the service alley (walkway) behind her site.[17] This easement is used for utility access including grey water and electricity. The Park Owners require access to maintain these services for residents. Implementing the Site 12 measurement of 20 metres deep in the current Orders would therefore hinder this access, to the detriment of park residents.
- [23]The Site Plan for the Park[18] also indicates that implementing the Site 12 measurement of 20 metres deep would affect Site 25. Ms Layne disputes the accuracy of the Site Plan for the Park because she claims that it omits sites next to Sites 8 and 13, misrepresents the size of Site 39A and incorrectly places Sites 82 to 107 too close the dam.[19] However, none of these sites surrounds Site 12 or is on the same block. Ms Layne’s concerns therefore do not affect the Plan’s evidence of the effect of the agreed measurements on the area surrounding Site 12.
- [24]Ms Layne was also unable to adduce any expert evidence of her own to refute the Site Plan for the Park. Ms Layne did provide a copy of a map that she claims is held by the Department of Lands.[20] However, this map is unattributed and provides no measurements.
- [25]Mr Bryan Horn, Draftsman prepared the Site Plan and gave evidence at the hearing. Mr Horn impressed me as earnest and forthright. Mr Horn confirmed in his oral testimony that implementing the current Site 12 measurement of 20 metres deep would affect at least part of Site 25. Ms Savidge and Mr Lapham for Samjam testified that Site 25 has a dwelling owned by other residents (albeit with an abandonment notice).
- [26]Ms Savidge, Mr Lapham and Mr Horn also testified that implementing the Site 12 measurement of 22 metres across in the current Orders would consume the seven metres frontage of Site 12A and impinge upon up to three metres of Site 11. Site 11 and Site 12A are on either side of Site 12. Both are currently tenanted[21] and have a history of being tenanted.
- [27]Implementing the measurements in the Consent Orders therefore affects the easement set aside for utility access for the benefit of other residents and at least two other currently tenanted sites – Sites 11 and 12A. This compromises the rights of innocent third parties – namely, other residents.
- [28]I am therefore satisfied that this is a problem with implementing the measurements sufficient to renew the final decision.
What are the appropriate Orders?
- [29]
- [30]The legislature’s desire for finality in Tribunal’s Orders that are difficult to implement or enforce is reflected by the term “renewal” to distinguish it from “reopen”.[24] The Tribunal therefore cannot conduct a fresh hearing on the merits as it can for a reopening.
- [31]
- [32]“Final decision” means the Tribunal’s decision that finally decides the matters the subject of the proceeding.[27] Although the proceeding was resolved by agreement and therefore not strictly “decided” on the merits, the Queensland Civil and Administrative Tribunal Act applies to the orders as if the compulsory conference were a proceeding before the Tribunal.[28] This means the “final decision” can only be a “final decision” that could have been made at the Compulsory Conference.
- [33]The only “final decision” that could have been made in a Compulsory Conference attended by both parties is by agreement:
Section 134 of the QCAT Act only enables a different order to be made if it could have been made when the matter was originally decided. As the order made was a consent order and there has been no hearing of the evidence, no other order could have been made at the compulsory conference than the one agreed to by both parties at the time.[29]
- [34]The Tribunal therefore cannot set aside the original Consent Orders or make any final decision in the absence of the parties’ agreement. The Tribunal also cannot amend the Orders unless both parties apply.[30] While immediately dismissing the Application for reopening, correction, renewal or amendment will end the Tribunal’s involvement in the matter, it is unlikely to end the dispute for the parties.
- [35]The only recourse for the parties is to seek to set aside the Agreement that underlies the Consent Orders in a Court of appropriate jurisdiction or agree to further Consent Orders in this Tribunal.
- [36]I am mindful of the cost and expense for the parties in protracting and prolonging this dispute in another Court, particularly when they did so well in resolving most of their issues at the Compulsory Conference. Continuing to litigate will be costly for both Ms Layne and Samjam – in time and money.
- [37]
- [38]For these reasons and consistent with the Tribunal’s mandate to encourage the early and economical resolution of disputes[33] with a minimum of cost,[34] I will provide the parties with one final opportunity to finalise these issues to their mutual satisfaction in this Tribunal – and without further protracted litigation.
- [39]The appropriate orders are therefore:
- The request for an adjournment is refused;
- Application OCL044-14 is listed for a further Compulsory Conference in Brisbane at 9:30am on 3 March 2015;
- The Compulsory Conference will be before Member Hughes unless either party objects in writing to the Tribunal by 5 February 2015; and
- If the parties are unable to agree to further Consent Orders on or before 3 March 2015, then the Application for reopening, correction, renewal or amendment filed on 29 October 2014 is dismissed without further order of the Tribunal.
Footnotes
[1] Decision dated 19 September 2014 at [1].
[2] Queensland Civil and Administrative Tribunal Act 2009 s 3(b).
[3] Directions dated 9 December 2014.
[4] Queensland Civil and Administrative Tribunal Act 2009 s 93.
[5] As required by Queensland Civil and Administrative Tribunal Act 2009 s 136.
[6] O'Neill & Dowthaite v Freedom Pools [2010] QCAT 213; Bourne v Queensland Building Services Authority (No. 2) [2010] QCAT 597; Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417; Queensland Building Services Authority v Queensland Civil and Administrative Tribunal & Anor [2013] QSC 167; Kratzmann v Queensland Building Services Authority [2013] QCAT 437; Crawford v Commissioner of State Revenue [2014] QCAT 418.
[7] Leisa Layne submissions filed 7 January 2015.
[8] Raffles v Wichelhaus (1864) 159 ER 375.
[9] Brown & Anor v Bath Properties Pty Ltd [2014] QCATA 146 at [11].
[10] Queensland Civil and Administrative Tribunal Act 2009 s 135(1).
[11] Smith v Andrews [2014] QCAT 356 at [8].
[12] Mistakes of form corrected by the Tribunal include: Peter Campbell Landscapes v Stormont [2011] QCAT 79, Mitchamy Developments Pty Ltd v Adams and Adams-Atkinson [2011] QCAT 133, Radcliff and Anor v Walker & Anor (No. 2) [2011] QCAT 569, Doctor v Umpi Korumba ATSIC for Housing [2013] QCAT 72 and Contrast Constructions Pty Ltd v Bartlett [2013] QCAT 399 (mathematical error); and Lister v Commissioner for Children and Young People and Child Guardian (No. 3) [2011] QCATA 88 (incorrect attribution).
[13] Queensland Civil and Administrative Tribunal Act 2009 s 133(1).
[14] Ibid s 3(b).
[15] Ibid s 4(c).
[16] Ibid s 61.
[17] Leisa Layne submissions filed 7 January 2015.
[18] Site Plan of Bryan Horn, Building Designer/Draftsman dated 13 November 2014.
[19] Leisa Layne submissions filed 3 December 2014.
[20] Map of Atkinson Dam Waterfront Caravan Park with handwritten date “10/11/11” included in Leisa Layne submissions filed 3 December 2014.
[21] Moveable dwelling tenancy agreement with Tanya Dixon dated 7 November 2014 and Moveable dwelling tenancy agreement with Christopher Collins dated 30 December 2014. Although the latter Agreement is dated after the date of the Consent Orders made on 19 September 2014, the Tribunal’s power to renew extends to repairing their operation if thwarted by events that arose after they were made – see Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284 at [19], per Wilson J.
[22] Urquhart v Body Corporate for Circle on Cavill CTS 39918 [2013] QCAT 241 at [8].
[23] Ibid, citing with approval DJL v Central Authority (2000) 201 CLR 226 at [34] to [38].
[24] Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326 at [22].
[25] Queensland Civil and Administrative Tribunal Act 2009 s 134(1).
[26] Ibid Schedule 3 definition of “decision”.
[27] Ibid Schedule 3 definition of “final decision”.
[28] Ibid s 84.
[29] Bielby v Beilby & McGrath [2010] QCAT 649 at [15].
[30] Queensland Civil and Administrative Tribunal Act 2009 s 88.
[31] Ibid s 9(4).
[32] Ibid s 62(1).
[33] Ibid s 4(b).
[34] Ibid s 4(c).