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Fraser v Luscombe[2019] QCAT 383





Fraser v Luscombe; Luscombe v Fraser [2019] QCAT 383


In REO005-18













In BDL068-13
















Building matters


11 December 2019


On the papers




Senior Member Brown


In REO005-18

The Application for reopening, correction, renewal or amendment filed 23 May 2019 is refused.

In BDL068-13

The Application for domestic building dispute filed 19 March 2013 is dismissed.


PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – where parties enter into settlement agreement – where party subsequently raises health issues at the time of entering into the settlement agreement – where there is no final decision in the proceeding – whether proceeding may be reopened

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION POWERS AND GENERALLY – OTHER MATTERS – where parties entered into settlement agreement – where party subsequently raises health issues at the time of entering into the settlement agreement – whether powers under the Queensland Building and Construction Commission Act 1991 (Qld) extend to making a decision regarding the capacity of a party to enter into terms of settlement

Guardianship and Administration Act 2000 (Qld), s 146, s 147

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 47, s 74

Azad v Ljubas [2007] QDC 018

Gibbons v Wright (1954) 91 CLR 423








This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)


  1. [1]
    Mr Luscombe and Ms Fraser entered into a contract for Mr Luscombe to perform building work. The parties fell into dispute. Mr Luscombe commenced proceedings in the tribunal in which he claimed an amount of $32,072.51 said to be monies due and owing by Ms Fraser (the building dispute proceedings).[1]
  2. [2]
    Mr Luscombe said that the building works had reached practical completion. Ms Fraser said that the works had not reached practical completion and claimed that the building work was defective and incomplete. Ms Fraser filed a counter-application against Mr Luscombe in respect of the alleged defective and incomplete work.[2]
  3. [3]
    The parties filed their statements of evidence and the matter was listed to proceed to a compulsory conference on 29 July 2013. The conference was adjourned and Ms Fraser was directed to file and serve a further statement of evidence.[3]
  4. [4]
    A compulsory conference was held on 17 October 2013. Mr Luscombe was represented at the conference by Emma Luscombe. At the conference, a settlement of the dispute was reached and the parties entered into terms of settlement. Ms Fraser agreed to pay to Mr Luscombe the sum of $15,000 by 22 November 2013 in full and final satisfaction of all claims by the parties (the settlement sum). The terms of settlement, signed by the parties, provided that Mr Luscombe was not required to perform any further building works (the settlement agreement).
  5. [5]
    The settlement sum was paid. It appeared that the matter was at an end although no final decision dismissing the claim and counter claim was made by the tribunal nor did either party file a notice of withdrawal. The unfortunate result of this was that the proceeding in the tribunal remained in abeyance without formally coming to end.
  6. [6]
    The proceedings had new life breathed into them on 23 May 2018 when Ms Fraser filed an application for reopening, renewal or amendment (the reopening application).[4] The orders sought by Ms Fraser in the reopening application are unclear. It is sufficient to observe that the application is essentially a re-agitation of her complaints about the building work performed by Mr Luscombe.
  7. [7]
    In further submissions filed in accordance with tribunal directions, Ms Fraser sought to clarify matters. Ms Fraser addresses at some length what occurred at the compulsory conference. With some stated exceptions which do not apply for present purposes, evidence of anything said or done at a compulsory conference is inadmissible at any stage in the proceeding. [5] I therefore do not propose to address those parts of the submissions divulging what transpired at the compulsory conference.
  8. [8]
    Ms Fraser’s submissions raise the issue of her health at the time she entered into the settlement agreement. Specifically, the submissions suggest that Ms Fraser may have lacked capacity to enter into the settlement agreement. Ms Fraser filed a medical report from Dr Rida Khan dated 27 May 2019. In the report Dr Khan expresses the opinion that Ms Fraser’s ‘mental capacity was significantly impaired at the time of signing the (settlement agreement). This can be supported by detailed hospital records as well.’ Ms Fraser has not produced any hospital records.
  9. [9]
    Ms Fraser also relies upon a number of other documents relating to her health. These post-date the compulsory conference by a number of years and I do not consider them of relevance for present purposes.

The reopening application

  1. [10]
    A party may apply to the tribunal to renew a final decision of the tribunal where it is not possible for the tribunal’s final decision in a proceeding to be complied with or there are problems with interpreting, implementing or enforcing the tribunal’s final decision. As there has been no final decision of the tribunal in the building dispute proceedings, there is no basis for Ms Fraser to make an application to renew under s 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  2. [11]
    A party to a proceeding that has been heard and decided by the tribunal may apply to the tribunal to have the proceeding reopened if the party considers a reopening ground exists. As there has been no hearing and final decision in the proceeding, there is no basis for Ms Luscombe to make an application to reopen under s 138 of the QCAT Act.
  3. [12]
    The tribunal may correct a decision made by it in a proceeding if the decision contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures or mistake in a description of a person etc, or a defect of form. There has been no final decision by the tribunal and therefore no basis for an application by Ms Fraser under s 135(2) of the QCAT Act.
  4. [13]
    The reopening application must therefore be dismissed.

The building dispute proceedings

  1. [14]
    As I have observed, the building dispute proceedings have not been formally concluded.
  2. [15]
    Ms Fraser appears to be saying that she lacked capacity to enter into the settlement agreement. What Ms Fraser says the tribunal should do about the settlement agreement is entirely unclear. In her submissions Ms Fraser acknowledges that she made the decision to enter into the settlement agreement. It seems that, some 5 years after the event, Ms Fraser regrets that decision.  Why it has taken so long for Ms Fraser to seek to re-agitate the building dispute proceedings is not satisfactorily explained.
  3. [16]
    There must be finality in litigation. An agreement to settle an action takes effect as a contract, and is binding as a contract subject to the ordinary rules about circumstances under which a contract can be set aside.[6] Generally speaking a contract may only be set aside for misrepresentation, mistake, duress, undue influence or unconscionable conduct. A contract is voidable if a party to the contract lacked capacity to contract and the other party knew of the unsoundness of mind.[7] A person lacks capacity if they are not be capable of understanding the general nature of what they were doing by participation in the transaction or do not have the capacity to understand the transaction if it was explained. Apart from the medical documentation to which reference has been made, Ms Fraser’s submissions do not address the considerations I have identified.
  4. [17]
    Mr Luscombe’s submissions reveal no knowledge on his part, or on the part of Emma Luscombe, of any issues with Ms Fraser’s mental state at the time of the compulsory conference. Mr Luscombe refers to Ms Fraser having an accompanying person with her at the time of the conference. A member of the tribunal conducted the conference. Had there been any concerns regarding Ms Fraser’s capacity it seems to me highly unlikely that the presiding member would have allowed the compulsory conference to proceed let alone permit the parties to enter into a settlement agreement.
  5. [18]
    Having made these observations, there is a more fundamental obstacle facing Ms Fraser.
  6. [19]
    The tribunal is a creature of statute and has only those powers conferred by the QCAT Act or an enabling Act. In this case the relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld). The tribunal has wide powers to resolve a building dispute.[8] Those powers do not extend to making a declaration as to a person’s capacity to enter into a settlement agreement or setting aside such an agreement. The building dispute has been resolved. What appears to be in question is Ms Fraser’s capacity to enter into the settlement agreement.
  7. [20]
    The tribunal has certain powers conferred upon it by the Guardianship and Administration Act 2000 (Qld). The tribunal may, on the application of a person, make a declaration about the capacity of the person for a matter.[9] A matter may include the entering into of a contract. A declaration about whether a person had capacity to enter into a contract is, in a subsequent proceeding in which the validity of the contract is in issue, evidence about the person’s capacity.[10]
  8. [21]
    Ms Fraser is at liberty to file an application seeking a declaration as to her capacity to enter into the settlement agreement or she may bring proceedings in another place seeking the appropriate relief. That is a matter for Ms Fraser.
  9. [22]
    In all the circumstances I am satisfied that the building dispute has been finally resolved by the parties entering into the settlement agreement. The agreement has been fully performed. There is no longer any substantive dispute. The tribunal may dismiss a proceeding or part of a proceeding in circumstances where the tribunal considers the proceeding to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.[11] As there is no longer any substance in the proceedings the claim and the counter claim should be dismissed.
  10. [23]
    I order accordingly.


[1]  Application filed 19 March 2013.

[2]  Response filed 17 April 2013.

[3]  Directions made 29 July 2013

[4]  Application filed 23 May 2018.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), ss 74(1) - (2).

[6] Azad v Ljubas [2007] QDC 018.

[7] Gibbons v Wright (1954) 91 CLR 423.

[8]Queensland Building and Construction Commission Act 1991 (Qld), s 77.

[9]Guardianship and Administration Act 2000 (Qld), s 146(1), s 146(2).

[10]  Ibid, s 147.

[11]  QCAT Act, s 47.


Editorial Notes

  • Published Case Name:

    Fraser v Luscombe; Luscombe v Fraser

  • Shortened Case Name:

    Fraser v Luscombe

  • MNC:

    [2019] QCAT 383

  • Court:


  • Judge(s):

    Senior Member Brown

  • Date:

    11 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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