Hunter Builders Pty Ltd v Kuhnemann
[2017] QCAT 175
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- Unreported Judgment
- Hunter Builders Pty Ltd v Kuhnemann[2017] QCAT 175
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Hunter Builders Pty Ltd v Kuhnemann[2017] QCAT 175
Hunter Builders Pty Ltd v Kuhnemann[2017] QCAT 175
CITATION: | Hunter Builders Pty Ltd v Kuhnemann [2017] QCAT 175 |
PARTIES: | Hunter Builders Pty Ltd (Applicant) v Michael Kuhnemann (Respondent) |
APPLICATION NUMBER: | BDL310-16 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
DELIVERED ON: | 23 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – Whether leave should be given for parties to have legal representation – Where both parties given leave for legal representation – Where dispute raises complex questions of fact and law Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(1), s 43(1)(b) Lida Build Pty Ltd v Miller [2010] QCATA 17 Harrison & Anor v Meehan [2016] QCATA 197 |
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
- [1]On 18 April 2017 I ordered that the parties have leave to be legally represented in the proceeding. These are my reasons.
- [2]Hunter Builders constructed a home for Mr Kuhnemann. An Application for a domestic building dispute was filed in the Tribunal by Hunter Builders claiming from Mr Kuhnemann monies due and owing of $28,170.42, ‘an insurance policy QBCC’ of $2,927.85 and costs of $315.70.
- [3]In the Application, Hunter Builders says that the dispute arises out of a ‘continuing agreement’ between the parties for the past 9 years relating to Mr Kuhnemann’s commercial gyms. The application is lacking in particulars and, if one were to consider only the Application, it is difficult to apprehend precisely what the dispute is about. At first blush, it appears that this is a commercial building dispute. Matters are made clearer by Mr Kuhnemann’s response and counter application which I will address.
- [4]Hunter Builders asserts that a ‘cost plus 10% verbal gentleman handshake’ agreement was entered into between the parties, ‘as had been our agreement for the past 9 years’.[1] What the application then sets out is a chronology of events which Hunter Builders relies upon as relevant to its claim. Attached to the application filed by Hunter Builders are a number of invoices and receipts from Hunter Builders and other third parties, none of which are explained or their relevance to the claim otherwise identified.
- [5]In his response and counter-application, Mr Kuhnemann denies any indebtedness to Hunter Builders. He says that the building works relate to a residential property. Mr Kuhnemann says, among other things, that no written contract was entered into between the parties as required by the Queensland Building and Construction Commission Act 1991 (Qld) and that Hunter Builders has no entitlement to claim payment from Mr Kuhnemann. Mr Kuhnemann seeks recovery of all monies paid to Hunter Builders on the basis that Hunter Builders had no entitlement to any payment for building works performed at Mr Kuhnemann’s residence.
- [6]Following a compulsory conference on 22 March 2017, the Tribunal made comprehensive directions to progress the matter. Subsequent to the compulsory conference, Hunter Builders filed an application for leave to be legally represented in the proceeding.
- [7]Hunter Builders says that the dispute involves complex questions of fact and law and specifically the existence and terms of the oral agreement between the parties, the value of the building work undertaken by Hunter Builders and the intention by Hunter Builders to claim in quantum meruit in respect of the value of the building works performed. Hunter Builders refers to the need for expert evidence to be obtained and the possibility of an experts’ conclave in relation to which the involvement of legal representatives will assist in identifying the issues in dispute.
- [8]Mr Kuhnemann says that the dispute is not a complex one. He says that the Tribunal is specifically equipped to assist the parties in understanding the facts and legal implications in a matter of this type and that he, Mr Kuhnemann, does not intend seeking leave for legal representation. Mr Kuhnemann refers to the ‘low quantum’ of the claim by Hunter Builders and that legal representation is not warranted.
- [9]Mr Kuhnemann refers to s 29 of the QCAT Act and the obligations on the tribunal vis-à-vis the parties. He says that it is ‘more than sufficient for the Applicant to be assisted by the Tribunal with regard to understanding the relatively simple factual and legal issues which will arise during the hearing of this matter’.
- [10]Mr Kuhnemann says that the retention of experts and the participation of the experts in a conclave will reduce, if not eliminate, the need for cross examination of the experts.
- [11]Parties in a proceeding in the Tribunal should represent themselves unless the interests of justice require otherwise.[2] The Tribunal may consider a number of circumstances as relevant in supporting the giving of leave to be represented.[3] The likelihood that the proceeding will involve complex questions of fact or law is one such circumstance.[4]
- [12]In my view the proceeding is likely to involve complex questions of fact or law. There are clearly a number of issues that will be required to be decided by the Tribunal including the enforceability of the agreement between the parties, the entitlement by Hunter Builders to claim in quantum meruit, the presentation of any claim in quantum meruit and whether the building works remain incomplete. As Hunter Builders has foreshadowed, and Mr Kuhnemann appears to agree, there will need to be experts retained to provide reports in relation to the value of the building works. The experts will need to be briefed on the relevant issues. There will need to be a conclave in relation to which the parties will be required to identify the issues to be considered by the experts at the conclave. If the experts do not reach agreement at the conclave on the issues under consideration, the parties may well wish to consider obtaining further expert evidence.
- [13]The Tribunal is obligated by s 29 of the QCAT Act to ensure that each party to a proceeding understands the practices and procedures of the Tribunal and the nature of assertions made in the proceeding and the legal implications of the assertions. The Appeal Tribunal has observed of s 29:
While this provision largely reflects and embodies what the courts have said in recent years is the nature of the duty owed by the judicial system to, at least, self representative litigants, it also suggests that parties to proceedings before this Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of the issues in the case.[5]
- [14]Mr Kuhnemann’s submissions, in my view, overstate the Tribunal’s obligations pursuant to s 29. The obligations under s 29 do not extend to the Tribunal being required to advise parties how to conduct their claim including, for example, telling parties how to quantify their claim or how to brief an expert to prove that quantification.[6]
- [15]The application filed by Hunter Builders, in its present form, fails to adequately identify and particularise the claim against Mr Kuhnemann. Whilst the Tribunal is not a pleadings jurisdiction, an application for a building dispute must set out with sufficient particularity the basis upon which a claim is made to enable a meaningful response by a respondent. Hunter Builders has foreshadowed the filing of an amended application. The involvement of legal representatives is likely to introduce an element of rigour and focus in the presentation of the claim by Hunter Builders not evident in the Application.
- [16]The presence of legal representatives in the proceeding will assist the Tribunal in identifying and narrowing the issues in dispute. This is consistent with the objects of the QCAT Act to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.
- [17]I grant leave to both parties to be legally represented in the proceeding. Mr Kuhnemann has indicated that he does not seek representation. That is his right. It is also now his entitlement if he so chooses.