Thompson v Shen[2018] QCAT 162

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Thompson performed building work for Mr Shen and Ms Kao. Upon becoming aware that Mr Thompson was not licensed to perform building work Mr Shen and Ms Kao terminated their agreement with Mr Thompson. Mr Thompson accepted termination and provided Mr Shen and Ms Kao with a final invoice in respect of the services he had performed. They refused to pay this invoice on the basis that they had previously paid Mr Thompson an amount of $62,000 and they did not consider he was entitled to any further amounts. Mr Thompson made an application to the Tribunal to recover the amount that he was owed.
2. [2]
   As Mr Thompson was not licensed, his entitlement to payment was subject to s 42 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). He was only entitled to the reasonable remuneration for carrying out building work limited to an amount not more than the amount paid for the supply of materials and labour for carrying out the work with no allowance for his own labour or any profit.
3. [3]
   Mr Thompson produced various invoices for the materials and labour that he said were in respect of the building work which totalled $93,689.65 as against the amount he had been paid of $62,802, and he claimed that he was entitled to an additional amount of $30,687.65.
4. [4]
   Mr Shen and Ms Kao engaged a builder to provide a report as to what the reasonable remuneration for the building work and the amount $70,005.76.
5. [5]
   The Tribunal accepted that the amount of $70,005.76 was an appropriate amount for Mr Thompson’s remuneration and awarded him $6,503.07.
6. [6]
   Mr Thompson has made an application to reopen the application on the basis that he has new evidence which was not available at the time of the original hearing.
7. [7]
   Senior Member Brown usefully set out the requirements in regard to a reopening application as follows:^[1]

[3] A party to a proceeding may apply to the Tribunal for the proceedings to be reopened if the party considers a reopening ground exists for the party.

[4] 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.

[5] The Tribunal may only grant an application to reopen a proceeding if it considers a reopening ground exists for the applicant and the ground could be effectively or conveniently dealt with by reopening the proceeding whether or not an appeal relating to the ground may also be started.

[6] A reopening ground is defined and means:

1. (a)
   The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or

2. (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.

[7] 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.

8. [8]
   Mr Thompson in his application for reopening filed 3 March 2017 stated his reasons as:

I 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 heard and decided.

Mr Thompson was directed to file his new evidence and submissions as to why it was not reasonably available when the original proceeding was heard and decided.

9. [9]
   Mr Thompson submitted that Mr Shen and Ms Kao had relied on their expert’s evidence and that his new evidence which was a report from a professional Building Quantity Surveyor which was dated 30 August 2017 discredits their evidence. He submitted that his new evidence would prove that his claim was valid and reasonable costs. That this new evidence provides the balance of proof and is reasonable grounds to reopen the case.
10. [10]
    Mr Thomson declared that the new evidence was not available at the original hearing due to financial hardship and health restrictions; he provided a report from his cardiologist. He stated in regard to financial hardship that he had been wrongfully stricken by the liquidation of his companies and a personal bankruptcy.
11. [11]
    Mr Shen and Ms Kao submitted in reply that:

    1. (a)
       the report of Mr Thompson’s expert was not obtained until August 2017, some 14 months after the hearing;
    2. (b)
       there was no explanation as to why such evidence could not have been produced at the hearing;
    3. (c)
       they paid the amount ordered by the Tribunal and proceeded thereafter to conduct their lives and commitments of the basis that this matter was finalised; and
    4. (d)
       they would be prejudiced by having to expend further money and effort if the matter were reopened, and that the application to reopen would amount to an attempt to re-litigate the substantive dispute which is contrary to the interests of justice.
12. [12]
    The reopening ground that Mr Thompson is relying on is that of new evidence. While it is clear that the evidence is new, it is evidence which could and would normally have been obtained during the course of the original application before the Tribunal. Mr Thompson points to it not being reasonably available because of his health issues and financial issues.
13. [13]
    While he may not have been able to afford to have the report prepared prior to the time it was prepared, that does not go to whether it was reasonably available or not. The word reasonably connotes a subjective consideration and Mr Thompson’s personal financial circumstance are not a matter which should be taken into account in that regard. For example, Mr Thompson does not claim that Mr Shen and Ms Kao denied him access to their property for the purpose of an expert’s inspection. He has not provided any reason why the report was not otherwise reasonably available. I am unable to understand how his health issues which are accepted could have impacted on him obtaining expert evidence.
14. [14]
    I agree with the submissions of Mr Shen and Ms Kao to the effect that there is no satisfactory reason as to why the evidence was not readily available when the proceeding was first heard and determined. The purpose of this requirement is to ensure that the public interest in the finality of litigation is not disturbed without good reason. It is not enough that there be new evidence; that evidence must not have been reasonably available at the time of the initial hearing.
15. [15]
    I am not satisfied that Mr Thompson would suffer substantial injustice if the proceeding were not reopened, because, although he has obtained new evidence, that evidence was reasonably available when the proceeding was first heard and decided.
16. [16]
    The application for reopening is refused.