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- Unreported Judgment
Nicol v Emerson QCAT 262
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Nicol & Anor v Emerson & Ors  QCAT 262
mobile project building pty ltd
15 July 2019
On the papers
Senior Member Brown
The Application for miscellaneous matters filed 14 December 2018 by George Emerson and Margaret Emerson is refused.
COURT PRACTICE & PROCEDURES – AUSTRALIA – QUEENSLAND CIVIL PRACTICE – QCAT LEGISLATION – where applicant is a subcontractor and makes application against homeowner and head contractor – where applicant claims homeowner varied the scope of works directly with him – where homeowners seek to dismiss that part of the proceedings against them – whether power under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 should be exercised
Queensland Civil and Administrative Tribunal Act 1991 (Qld), s 47
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Kyriackou v Ace Insurance Ltd  VSC 647
Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635
Reardon v Deputy Commissioner for Taxation (2013) 275 FLR 9
REASONS FOR DECISION
- On 19 June 2019 I refused an application by Mr and Mrs Emerson to dismiss that part of the proceedings brought by the applicants against them.
- Mr and Mrs Emerson entered into a contract with Mobile Project Building Pty Ltd (MPB) to undertake the construction of two garages. The contract price was $82,000. The contract provided that the building works were to commence on 27 November 2017 and the date of practical completion was 15 January 2018.
- MPB entered into a sub-contract with Mr Nicol. Mr Nicol contracted to ‘build two garage as plane (sic) number 04589-05 supply all material concrete wall roof garage door.’ The sub-contract price was $50,000. The date for substantial completion of the works was 10 January 2018.
- The applicants commenced these proceedings by application filed 15 November 2018. In the application Mr Nicol is identified as the first applicant and Mr Stewart as the second applicant. Where required to set out the reasons orders should be made, the applicants say:
We were asked to do the work by the builder and owners.
The owners and builder dispute that they asked for the work to be done.
The owners blame the builder and the builder blames the owners.
We are subcontractors to the builder.
- The application is expressed somewhat unclearly. The applicants are not legally represented. Upon a reading of the application and the accompanying documents the applicants’ appear to be saying:
- (a)The first applicant says he entered into a sub-contract with MPB to construct a two vehicle garage at the Emersons’ property;
- (b)The garage had a flat roof with a three degree pitch;
- (c)Mr Nicol rendered a tax invoice on 22 March 2018 to MPB. The tax invoice refers to three stages of building work associated with the garage. The cost of the building work totalled $69,647.52 of which an amount of $31,647.52 remains unpaid.
- Although, and as I have observed, the application is somewhat opaque the applicants say that at some point in time, and while the subject building works were still in progress, the scope of the works was varied. Whether the scope of works, and the contract price, was varied, what the variation was, who agreed to the variation and whether the agreement was a variation of the sub-contract or a separate agreement between the applicants and the Emersons is at the heart of the dispute.
- In its response, MPB says that it did not instruct the applicants to perform the variation work the subject of the dispute. The response attaches an email from MPB’s solicitor to the applicants’ solicitor in which it is said, inter alia:
Your client followed the instructions of the property owner and varied the scope of the sub-contracted work without seeking our clients (sic) permission to do so – we attach written confirmation of that fact, signed by your client. (underlining added)
- Attached to the response is a further document said to be signed by Mr Nicol. Relevant to the dispute, the document contains the following:
I worked on this job on a charge up basis.
I was instructed by George and Margaret Emmerson and Michael as to what they wanted.
The roof change was ordered by Margaret Emmerson.
All works were instructed by George Emmerson he was on site all the time.
- The reference to ‘Michael’ is presumably a reference to Michael Diab, a director of MPB.
- On 14 December 2018, the Emersons filed an application to dismiss the proceedings against them. This was on the basis that the application did not disclose a cause of action known to law and that, as a result, the claim is misconceived or lacking in substance or both.
- The Emersons say:
- (a)They entered into a contract with MPB for the construction of two garages at their property;
- (b)MPB sub-contracted with Mr Nicol to undertake building work associated with the construction of the garages;
- (c)Mr Nicol in turn entered into a sub-contract agreement with Queensland Roofing and Guttering Pty Ltd, Mr Stewarts’ company;
- (d)They did not promise to pay either of the respondents for any of their work in relation to the construction of the garages;
- (e)They did not receive any invoices for work performed by the applicants;
- (f)All work was carried out at the direction and request of MPB;
- (g)There is no dispute between the Emersons and MPB.
- In response the applicants say that during the course of the building work, Mrs Emerson instructed Mr Nicol to ‘change the roof and raise the height and width of the garage doors’.
- MPB says:
- (a)MPB did not direct or request the applicants to carry out any variation works.
- (b)In the course of the performance of the building works Mr Nicol informed Mr Diab, the director of MPB, that at the request of the Emersons he could install a superior roof panel system at no extra cost.
- (c)Mr Diab did not instruct Mr Nicol to vary the sub-contract.
- (d)Mr Nicol subsequently confirmed that the Emersons had instructed him to vary construction of the garage.
- The Emersons say that the claim against them must fail on the basis that the work the subject of the applicants’ claim is the subject of the contract between MPB and the Emersons.
- There is some force in the Emersons’ submission. In Lumbers v W Cook Builders Pty Ltd (in liq) (‘Lumbers’) the Lumbers entered into a contract with W Cook & Sons Pty Ltd to build a house. Unbeknownst to the Lumbers most the work was performed by a related company, W Cook Builders Pty Ltd (‘WCB’). WCB subsequently sought to recover an amount from the Lumbers for work performed on a quantum meruit basis. On appeal to the High Court, it was held WCB had no entitlement to claim against the Lumbers.
- There is, in my view, a critical point of distinction however between the claim as presently articulated by the applicants, and the facts pertaining in Lumbers. Here, at least on one view of the material, it is alleged that the Emersons agreed with Mr Nicol that additional building works were to be performed. Whether there was such an agreement and whether this was a variation of the original scope of works or a separate agreement between Mr Nicol and the Emersons is the central point of contention. In Lumbers the plaintiffs were unaware of the fact that the building work was being performed by WCB and, had they know, they would have objected to this on the basis that WCB was unlicensed. There was no allegation that the Lumbers had, at any stage, contracted with WCB.
- There are clear factual disputes about the building work undertaken by the applicants including, but not limited to, whether there was a variation to the scope of the works agreed between Mr Nicol and MPB and whether additional building work was undertaken by the applicants pursuant to a separate agreement between Mr Nicol and the Emersons. In addition, it is unclear to me why Mr Stewart is an applicant. It does not appear, at least from the material filed to date, that Mr Stewart was a party to the alleged agreement between the Emersons and Mr Nichol.
- Section 47 of the Queensland Civil and Administrative Tribunal Act 1991 (Qld) is a summary judgment power. In Fancourt v Mercantile Credits Ltd the High Court said:
The power to order summary judgment or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
- In Kyriackou v Ace Insurance Ltd it was held:
 In Dey v Victorian Railway Commissioners (“ Dey ”), Dixon J said of the forerunner to rule 23.03:
It is peculiar to Victoria, it is the counterpart for the Defendants of order 14. It confers a power of summarily dealing with an action which should be reserved for the exercise as to the actions that are absolutely hopeless.
 These observations were cited with approval by Tadgell J in respect of an application under the present rule of 23.03 in Holland-Stolte Pty Ltd v Bill Acceptance Corporation Ltd & Princess Theatre Holdings Pty Ltd, where his Honour said: That the proposition of Dixon J, in Dey , holds good, as His Honour observed, whether you subscribe to the view that the Defendant will fail to obtain summary judgment unless hopelessness is readily discernible or whether you concede that it suffices that the Defendant must demonstrate it even after thorough and protracted investigation and argument.
 The test was stated in not dissimilar terms in Camberfield Pty Ltd v Klapanis (“Camberfield”), where Batt JA said, after referring to the wellknown text of Dixon J which I have already referred to in Dey , of the requirement for the Plaintiff's case to be absolutely hopeless before an order 23.03 application may succeed:
Dixon J also said the case must be very clear indeed to justify summary intervention under the inherent jurisdiction and that once it appears that there is a real question to determine, whether of fact or law, and the rights of the parties depend on it, then it is not competent for the court to dismiss the action.
 The judge at first instance in Camberfield, as Batt JA observed, also set out the well-known passage from the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways where the Chief Justice stressed the great care which must be exercised to ensure that, under the guise of achieving expeditious finality, a Plaintiff is not improperly deprived of his opportunity of a trial of his case by the appointed tribunal. Barwick CJ went on to state that:
I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the Plaintiff's claim.
- The power conferred by s 47 should only be exercised in those cases where it is clear that a party has no real prospects of success and there is no need for a hearing. I must be satisfied that the applicants have no real prospect of success in the proceeding against the Emersons and that there is no need for a hearing in respect of the claim against the Emersons.
- As McMeekin J observed in Reardon v Deputy Commissioner for Taxation:
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.
- The Tribunal is not a pleadings jurisdiction. In tribunal proceedings it is the statements of evidence that serve to identify the issues in dispute. Directions have been made for the matter to proceed to a compulsory conference. The purposes of the compulsory conference are:
- (a)to identify and clarify the issues in dispute in the proceeding;
- (b)to promote a settlement of the dispute the subject of the proceeding;
- (c)to identify the questions of fact and law to be decided by the tribunal;
- (d)if the proceeding is not settled, to make orders and give directions about the conduct of the proceeding;
- (e)to make orders and give directions the person presiding over the conference considers appropriate to resolve the dispute the subject of the proceeding.
- If the matter cannot be resolved at the conference, the statements of evidence are likely to clarify the nature of the claims being made by the applicants. The role played by Mr Stewart in the events and why he has been included as an applicant should also be further clarified. Subject to what is contained in the statements of evidence, the Emersons are at liberty to make a further application to dismiss that part of the proceedings by the applicants (jointly or individually) against them.
- At this time, and for the reasons I have set out, I am not persuaded that this is an appropriate case in which to exercise the discretion conferred by s 47 and to dismiss that part of the proceedings against the Emersons. The application for miscellaneous matters is refused.
 Affidavit of Margret Emerson, sworn 20 December 2018.
 Subcontract undated.
 (2008) 232 CLR 635.
 (1983) 154 CLR 87.
  VSC 647 (citations omitted).
 Victorian Supreme Court rules – the rule provides: On application by a defendant who has filed an appearance, the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits
 (2013) 275 FLR 9.
- Published Case Name:
John Nicol and Keith Stewart v George Emerson, Margaret Emerson and Mobile Project Building Pty Ltd
- Shortened Case Name:
Nicol v Emerson
 QCAT 262
Senior Member Brown
15 Jul 2019