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Nurzenski v BP Builders NQ Pty Ltd QCAT 67
Nurzenski v B.P. Builders NQ Pty Ltd  QCAT 67
Amanda Jane Nurzenski
B.P. Builders NQ Pty Ltd
The matter was determined on the papers
Senior Member Brown
3 March 2017
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedure – reopening – whether matter should be reopened due to fresh evidence – whether matter should be reopened due inability to attend hearing
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 136, s 138(1), s 138(2), s 139, s 140, schedule 3.
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
- Ms Nurzenski’s home in far north Queensland was damaged when Cyclone Yasi struck in 2011. She engaged BP Builders Pty Ltd (BP) to undertake the necessary building work to repair the damage. Ms Nurzenski fell into dispute with BP. In essence, the dispute relates to what Ms Nurzenski says was the failure by BP to properly paint external decking and stairs as a result of which the woodwork had significantly deteriorated.
- The dispute could not be resolved and Ms Nurzenski filed an application for domestic building dispute in the Tribunal. On 14 July 2016 the Tribunal made a final decision in the proceeding and BP was ordered to pay to Ms Nurzenski $36,736.80. BP filed an application for leave to appeal or appeal. On 26 August 2016, the Appeal Tribunal ordered that, because the reasons for the application for leave to appeal or appeal may constitute a reopening ground, the application for leave to appeal or appeal be referred back to the Tribunal to decide whether this proceeding should be reopened.
Reopening – the statutory framework
- A party to a proceeding may apply to the Tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
- An application for reopening must, among other things, state the reopening ground relied upon. Each party must be given the opportunity to make written submissions about the application. The Tribunal may decide the application on the basis of documents, without a hearing or meeting of any kind.
- A reopening ground is defined and means:
(a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b) 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.
- If the Tribunal decides that a proceeding should be reopened the Tribunal must decide the issues in the proceeding that must be heard and decided again. The Tribunal may confirm or amend the Tribunal’s previous final decision or set aside the previous final decision and substitute a new decision.
- The proceeding has been heard and decided by the Tribunal. Accordingly, The decision of the Tribunal made 14 July 2016 is a final decision to which Chapter 2, Part 7, Division 7 of the QCAT Act (reopening) applies.
What do the parties say?
- In accordance with s 139(3) of the QCAT Act, the application for reopening will be decided on the basis of the documents filed in the proceeding and the written submissions filed by the parties.
- The reopening grounds relied upon by BP are:
- The final decision of the Tribunal was wrong in law, was inequitable and was against the weight of the evidence;
- The original work carried out in accordance with the scope of the works did not exceed $50,000;
- BP was denied natural justice as it could not attend the hearing due to an unforeseen emergency requiring the installation of a roof on a residential dwelling during bad weather;
- The awarded sum well exceeds the value of the work carried out;
- BP has requested reasons for the decision which have not been provided;
- Material supplied to the Tribunal and evidence provided by Ms Nurzenski was fraudulent;
- An expert building inspection and report has now been done on the works performed;
- An expert coating report has been supplied by the manufacturer, Cabots.
- Only ground (c), and possibly grounds (g) and (h) are reopening grounds. I will consider each in turn.
- Reopening ground – BP could not attend the hearing (the first reopening ground)
- BP says that it was unable to attend the hearing due to an unforeseen emergency requiring the reinstallation of a roof on a residential dwelling during bad weather.
- Ms Nurzenski says that she was not notified by BP of its inability to attend the hearing. She says that she, and her witnesses, attended at the Cairns Courthouse at 9.30am on the day of the hearing, 14 July 2016. Ms Nurzenski says that BP was called and failed to appear. Ms Nurzenski says that she gave her evidence, as did her witnesses, and the presiding Member gave his final decision in the proceeding. Ms Nurzenski says that it was not until 10 August 2016 that she became aware that BP had filed an application for leave to appeal or appeal and that she was informed of this by the Tribunal registry.
ii. Reopening grounds – further expert evidence (the second reopening ground)
- BP relies upon a further expert report by Wayne Parfitt of Australian Civil Construction Services dated 15 September 2016 and an email from a technical consultant at Dulux Group to BP dated 19 September 2016. There is no explanation offered by BP as to why these documents could not, and were not, filed and served prior to the hearing.
- Ms Nurzenski says that the report of Mr Parfitt reinforces her claim that the product used by BP was not applied in accordance with the manufacturer’s instructions.
- I will consider each of the reopening grounds, however before doing so it is appropriate to consider the relevant history of the proceeding in the Tribunal. Ms Nurzenski filed her application for domestic building dispute on 19 November 2015. On 11 February 2016, BP filed its response. On 21 March 2016 a compulsory conference was held (and attended by both parties by telephone) at which time directions were made listing the matter for a directions hearing. At the directions hearing on 30 March 2016, which was attended by BP but not by Ms Nurzenski, directions were made for the filing of statements of evidence and listing the matter for hearing in Cairns on 14 July 2016.
- Ms Nurzenski filed her statements of evidence in accordance with the Tribunal directions. BP did not.
- A further directions hearing was held on 8 June 2016. While Ms Nurzenski attended the directions hearing, BP did not. It became apparent in the course of the directions hearing before me that Ms Nurzenski required leave to file further statements of evidence. Directions were made accordingly, which included a direction for BP to file its statements of evidence. Ms Nurzenski complied with the Tribunal’s directions. BP did not.
- On 5 April 2016, the Tribunal sent to the parties by email and pre paid post a Notice of hearing. The Notice advised the parties that the hearing would be conducted by the Tribunal at the Cairns Courthouse on 14 July 2016 commencing at 9.30am.
- There is no record on the Tribunal file, nor any reason to suppose, that the parties did not receive the Tribunal’s directions or the Notice of hearing. The email address to which communications were sent by the Tribunal to BP was the address provided by BP in its response. There is no indication from the Tribunal file that any email communications to BP could not be sent or were otherwise blocked. Indeed, the email address to which all communications were sent to BP is the same address on the letterhead of the document containing BP’s submissions in support of its application to reopen the proceeding.
- There is no record on the Tribunal file to indicate that BP made any attempt to contact the Tribunal regarding its inability to attend the hearing. There was no attempt by BP to seek an adjournment of the hearing.
- BP does not say that it was not aware of the hearing. What BP says is that an unforeseen emergency prevented it from attending the hearing. That unforeseen emergency is said to be the reinstallation of a roof on a dwelling during bad weather.
- BP does not provide any details as to where the dwelling was located, when the request for the work to be carried out was made, by whom the request was made, details of the work to be undertaken, why the work was required to be carried out urgently (other than a vague reference to bad weather), and why BP – as opposed to another contractor – had to carry out the work.
- BP was informed by the Tribunal at least 3 months before the hearing, by direction and by Notice of hearing, of the hearing date of 14 July 2016. BP had adequate time to arrange its affairs to ensure that it attended the hearing. The failure by BP to comply with the Tribunal directions regarding the filing of statements of evidence does indicate that BP failed to appreciate its obligations in responding to the claim by Ms Nurzenski.
- The Appeal Tribunal has observed that the QCAT Act:
… places obligations upon parties themselves: to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed ‘…the public as a whole, not merely the parties to the proceedings’.
- What is apparent from the material relied upon by BP is that it made a conscious decision to prefer its commercial interests over its obligations to act in its own best interests by undertaking work related activity rather than attend a hearing of which it had received several months notice. This conclusion as to BP’s attitude to the proceeding is reinforced by BP’s persistent failure to file and serve any statements of evidence in support of its response to Ms Nurzenski’s claim.
- To seek to rely upon the exercise of its own commercial interests cloaked in the veneer of an “unforeseen emergency” requiring its urgent attention, as BP does, falls well short of a reopening ground.
- Reopening ground 2 relates to additional evidence relied upon by BP. In its submissions BP does not say what the relevance of the evidence is. The report by Mr Parfitt refers to his having inspected the property on 15 September 2016. This is 2 months after the hearing and 1 month after BP filed its application for leave to appeal or appeal. There is no explanation offered by BP as to why the report was not obtained prior to the hearing. Indeed it is difficult to conceive of what explanation might be offered in light of the fact that the report was obtained some 2 months after the hearing and in the absence of BP filing any statements of evidence in the proceeding.
- The report notes that the inspection area was limited to the timber members and surroundings of the front of Ms Nurzenski’s property. Whether the inspection was conducted with Ms Nurzenski’s permission is not clear from the report and Ms Nurzenski does not address the issue in her submissions in response.
- Turning to the email dated 19 September 2016 from Mr Maybury, the technical consultant with Dulux Paints, there is nothing before me to indicate how this email came to be sent to BP. Presumably it was in response to an enquiry from BP given the opening statement referring to the writer having “given some thought to (sic) deck issue and have tried to explain it as best as I can.”
- The report by Mr Parfitt and the email from Mr Maybury is precisely the type of evidence which BP could and should have sought to rely upon in the proceeding. The fact that the evidence has now, belatedly, been produced speaks more to a failure by BP to act in its own best interests rather than any suggestion that it is new evidence not reasonably available when the proceeding was first heard and decided. Indeed there is nothing relied upon or produced by BP that would suggest that the evidence was not reasonably available before the hearing had BP acted as directed by the Tribunal and taken steps to protect its interests.
- Reopening ground 2 is not made out.
- BP has failed to establish a reopening ground. The application for reopening is refused.
- The application for leave to appeal and appeal has been stayed pending the outcome of this application. The application having been refused, it is for the Appeal Tribunal to consider further BP’s appeal.
APL261-16, Appeal Tribunal Decision dated 26 August 2016.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 138(1).
Ibid, s 138(2)(a).
Ibid, s 139(2).
Ibid, s 139(3)(b).
Ibid, s 139(4)(a).
Ibid, s 139(4)(b).
Ibid, Schedule 3.
Ibid, s 140(1).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 140(4).
Ibid, s 136.
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd  QCATA 069, 3  citing Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
- Published Case Name:
Amanda Jane Nurzenski v BP Builders NQ Pty Ltd
- Shortened Case Name:
Nurzenski v BP Builders NQ Pty Ltd
 QCAT 67
Senior Member Brown
03 Mar 2017