Van Der Westhuizen v Samcol Homes Pty Ltd
[2016] QCAT 384
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- Unreported Judgment
- Van Der Westhuizen v Samcol Homes Pty Ltd[2016] QCAT 384
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Van Der Westhuizen v Samcol Homes Pty Ltd[2016] QCAT 384
Van Der Westhuizen v Samcol Homes Pty Ltd[2016] QCAT 384
CITATION: | Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384 | |
PARTIES: | Ian Van Der Westhuizen (Applicant) v Samcol Homes Pty Ltd (Respondent) | |
APPLICATION NUMBER: | BDL213-15 | |
MATTER TYPE: | Building matters | |
HEARING DATE: | On the papers | |
HEARD AT: | Brisbane | |
DECISION OF: | Senior Member Brown | |
DELIVERED ON: | 13 September 2016 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | THE DECISION OF THE TRIBUNAL IS THAT:
THE TRIBUNAL DIRECTS THAT:
4:00pm on 4 October 2016
4:00pm on 25 October 2016
4:00pm on 31 October 2016
4:00pm on 8 November 2016
4:00pm on 15 November 2016
| |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent claimed non compliance by applicant with Tribunal directions caused unnecessary disadvantage – where applicant remedied non compliance – application of s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether application should be dismissed for non compliance with Tribunal directions Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 47, 48, 50, 50A Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15 McGrath v Scott [2012] QCATA 57 Agar v Hyde (2000) 201 CLR 552 | |
APPEARANCES and REPRESENTATION (if any):
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
- [1]On 13 September 2016 I refused a number of applications by the respondent, Samcol Homes Pty Ltd (Samcol). Samcol has requested reasons for my decision.
- [2]Samcol built a home for Mr Van Der Westhuizen. The parties have fallen into dispute. Mr Van Der Westhuizen claims that the work carried out by Samcol is defective or not in accordance with the building contract entered into between the parties. Samcol counter claims for monies due and owing under the contract and on a quantum meruit for building work carried out. In order to understand the history of the proceeding it is useful to set out a brief chronology of events:
Date | Event |
29.10.15 | Application for domestic building dispute filed |
19.11.15 | Response and counter application filed |
23.11.15 | Directions made listing matter for compulsory conference |
08.02.16 | Compulsory conference held |
18.03.16 | Directions hearing conducted. Parties directed to file statements of evidence and matter listed for experts’ conclave |
31.03.16 | Application for decision by consent varying the directions made 18.03.16 |
04.04.16 | Directions made 18.03.16 varied |
17.05.16 | Samcol files:
|
18.05.16 | Samcol files:
|
01.06.16 | Directions made at directions hearing varying the time for compliance with the directions made 18 March 2016 |
22.06.16 | Samcol files: 1) Application for miscellaneous matters to strike out application for domestic building dispute |
28.06.16 | Samcol files:
|
28.06.16 | Samcol files:
|
30.06.16 | Response to counter application filed |
13.09.16 | Directions made for the filing of statements of evidence by the parties including expert evidence and for the holding of an experts’ conclave on 29.11.16 |
- [3]The proceeding has progressed in the Tribunal albeit in a less than optimal way. Samcol says that Mr Van Der Westhuizen has failed to comply with directions made by the Tribunal and in particular the following:
- Direction 2 of the directions made 18 March 2016 requiring Mr Van Der Westhuizen to file and serve supporting documents relating to his claim;
- Direction 2 of the directions made 1 June 2016 requiring Mr Van Der Westhuizen to file and serve a response to Samcol’s counter application.
- [4]Samcol says that it has been prejudiced in costs and delays continuously by Mr Van Der Westhuizen’s failure to comply with directions made by the Tribunal. Samcol relies upon s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and says that Mr Van Der Westhuizen is acting in a way that unnecessarily disadvantages Samcol by not complying with directions made by the Tribunal.[1] Samcol says that Mr Van Der Westhuizen’s conduct amounts to an intentional act of contempt. The conduct of Mr Van Der Westhuizen, says Samcol, is causing it considerable prejudice. Samcol says it is being held out of the monies it is owed by Mr Van Der Westhuizen while Mr Van Der Westhuizen enjoys the fruits of Samcol’s labours by residing in the house.
- [5]Mr Van Der Westhuizen says that he engaged solicitors to act on his behalf (although it is unclear precisely when) however his solicitor was incapacitated from early May 2016 until early June 2016 and presumably unable to discharge his duties under the relevant retainer although this is not specifically stated by Mr Van Der Westhuizen. In early June 2016 Mr Van Der Westhuizen retained his current solicitors. In the submissions by Mr Van Der Westhuizen’s solicitors, they say that there were some delays in securing the former solicitors’ file. The solicitors say that while Mr Van Der Westhuizen did fail to comply with the directions made 1 June 2016, directions 1(a) and 2, the subject of complaint by Samcol, were subsequently complied with on 30 June 2016 (22 days late) and 29 June 2016 (14 days late).[2] Mr Van Der Westhuizen says that Samcol has not identified particulars of the alleged prejudice suffered or costs it claims to have incurred as a result of his non compliance with the directions by the Tribunal.
- [6]The counter application by Samcol includes claims for a liquidated amount and for unliquidated damages. A request for a decision by default for a liquidated amount and for unliquidated damages may be made by a party if the other party fails to file a response.[3] Mr Van Der Westhuizen filed a response to the counter application on 30 June 2016. There is therefore no ground for a decision by default pursuant to s 50(1)(c) and/or s 50A(1)(c) of the QCAT Act.
- [7]Pursuant to s 48 QCAT Act, the Tribunal may, if party causing disadvantage through, among other things, non compliance with orders made by the Tribunal or non compliance with the QCAT Act or rules, is the applicant for the proceeding, order the proceeding be dismissed or struck out. If the party causing disadvantage is not the applicant, the Tribunal may, among other things, make its final decision in the proceeding in the applicant’s favour. For the purposes of a consideration of s 48 and the “disadvantaged party”, Samcol is both a respondent (to Mr Van Der Westhuizen’s application) and an applicant (in the counter application).
- [8]While there has been non compliance with Tribunal directions by Mr Van Der Westhuizen, that non compliance has now been remedied. The unnecessary disadvantage referred to in s 48 QCAT Act must be of sufficient gravity to justify striking out an application or making a final decision in a proceeding in favour of an applicant. Samcol says that the disadvantage it has suffered is being held out of monies it is owed and costs it has incurred as a result of the non compliance by Mr Van Der Westhuizen with Tribunal directions. The disadvantage Samcol says it has suffered is not further particularised.
- [9]It is, unfortunately, not uncommon for parties to fail to comply with directions made by the Tribunal. Failure by a party to comply with Tribunal directions may result in adverse orders under section 48 of the QCAT Act. Section 48 does not refer to a consideration of the merits of a claim. In this respect, s 48 differs from s 47 of the QCAT Act, the latter being in the nature of a summary judgment power which is determined on the merits of the applicant’s claim or the respondent’s defence. Nevertheless, the exercise by the Tribunal of the power under s 48 is discretionary and should be exercised only if the Tribunal member considers it either necessary or appropriate to do so in the circumstances.[4] To the extent that the exercise of the power may result in the dismissal of a proceeding or a final decision in an applicant’s favour, s 48 is akin to a summary judgment power.
- [10]The Appeal Tribunal has observed:
Other factors, however, should be considered before the Tribunal proceeds to summary determination. These include the nature and scope of the dispute, whether it is appropriate to determine the matter without an oral hearing and whether the parties have had the opportunity to make submissions about the issues in contest.[5]
- [11]In exercising the discretion under s 48 of the QCAT Act, the merits of the claim must be considered. This approach is consistent with the requirement that the Tribunal to act fairly and according to the substantial merits of the case.[6] There may be circumstances in which the Tribunal is called upon to exercise the discretion under s 48 where the claim the subject of the dismissal application is weak or without merit. Such circumstances would necessarily inform a decision by the Tribunal. Similarly, a claim may have significant merit however a party is recalcitrant or delinquent in their conduct of the proceeding. The merits of the claim must be weighed with the conduct of the party and the disadvantage occasioned to the other party. An application for summary judgment should only be granted in the clearest of cases. In Agar v Hyde the High Court said:
It is, of course, well accepted that a court whose jurisdiction is regularly invoked ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways ... but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[7]
- [12]On balance, having considered the merits of the claim brought by Mr Van Der Westhuizen and the non compliance complained of by Samcol, I am not persuaded that the non compliance, which has now been remedied, is of sufficient gravity that Samcol should have the relief sought in the application for miscellaneous matters. Having said this, Mr Van Der Westhuizen should understand that continued failure to comply with Tribunal directions may well result in another application by Samcol pursuant to s 48 of the QCAT Act and such an application, depending upon the circumstances, may have a different outcome for Mr Van Der Westhuizen than the present application.
- [13]I make the following orders:
- (1)The application for miscellaneous matters is refused.
- (2)The application for a decision by default (unliquidated damages) is refused.
- (3)The application for a decision by default (liquidated damages) is refused.
- (1)
- [14]I make the following directions:
- Ian Van Der Westhuizen must file two (2) copies in the Tribunal and give one (1) copy to Samcol Homes Pty Ltd of:
- Ian Van Der Westhuizen’s statement of evidence, which must be page numbered;
- the statement from each witness to give evidence for Ian Van Der Westhuizen at the hearing including any experts; and
- any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:
4:00pm on 4 October 2016
- Samcol Homes Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Ian Van Der Westhuizen of:
- Samcol Homes Pty Ltd’s statement of evidence, which must be page numbered;
- the statement from each witness to give evidence for Samcol Homes Pty Ltd at the hearing including any experts and;
- any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:
4:00pm on 25 October 2016
- The application is listed for an experts’ conclave in Brisbane at 1:30pm on 29 November 2016.
- The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:
- for the conduct of the conclave; and
- for the conduct of the proceeding.
- The parties must file in the Tribunal two (2) copies of:
- The name, specialisation and contact details of the experts to participate in the conclave; and
- An agreed list of issues to be considered by the experts at the conclave; and
- A list of documents provided to their experts by:
4:00pm on 31 October 2016
- If the parties are unable to agree on a set of issues, each party must file in the Tribunal two (2) copies and give to each other one (1) copy of a list of issues they propose to be considered by the experts at the conclave, by:
4:00pm on 8 November 2016
- In either case the Tribunal will settle the list of issues to be considered by the experts at the conclave and will provide the settled list to each party and to the experts, by:
4:00pm on 15 November 2016
- The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.
- If the experts prepare a joint report, that report will be the experts’ evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.
- Except with the Tribunal’s leave, a party may not:
- raise a matter not already mentioned in the joint report.
- submit evidence from an expert (whether or not they participated in the conclave) that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report.
- submit evidence from any other expert about matters mentioned in the joint report.
- No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the Tribunal.
- Unless the Tribunal otherwise orders all witnesses must attend the hearing in person for cross examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.
- The application is listed for a directions hearing in Brisbane at 1:30pm on 14 December 2016.