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Harrison v Kumari QCATA 136
Harrison v Kumari  QCATA 136
On the papers
13 September 2016
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – OFFER OF COMPROMISE, PAYMENT INTO COURT AND SETTLEMENT – where the parties agreed to settle their dispute in mediation – where the settlement was not complied with – where the respondent claimed and was awarded the full amount for breach of contract in the tribunal – where the applicant seeks leave to appeal – where the applicant wants to pay the settlement amount
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 82, 84, 85, 87, 88, 89
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 74
Holsworthy Urban District Council v Holsworthy Rural District Council  2 Ch. 62
General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd  2 Qd R 6
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission  QCATA 101
Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd  VLR 555
APPEARANCES and REPRESENTATION (if any):
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
- This is an appeal from a decision of the tribunal exercising its minor civil dispute jurisdiction resolving a dispute between Mr Harrison (applicant) and Ms Kumari (respondent).
- Following mediation, the parties agreed to settle the respondent’s claim for a refund for unperformed services in the amount of $1,000.00 (the settlement amount). The mediator recorded on the Form 48 that the mediation resulted in the “whole dispute (being) resolved”. The parties filed the terms of the settlement agreement in the tribunal for payment of the amount by weekly instalments of $250.00 for four weeks.
- Bank details were provided to the applicant to facilitate payment by electronic transfer but for some reason he did not pay. The proposed grounds of appeal blame the respondent for supplying the incorrect information, but it appears just as (or more) likely that he did not have the financial capacity to pay from his own resources and has only just been able to borrow enough to meet his commitment. At any rate, the applicant was ordered to pay the respondent the full $4,400.00 for breach of contract and $108.70 in costs by the tribunal on 25 November 2015.
- The applicant now seeks leave to appeal so a new order can be made for no more than $1,000.00 (or perhaps even less to reflect the expenses he incurred in providing the services).
- At common law, where parties settle at mediation, the claim is compromised and the dispute disposed of. It may not be litigated again, but default in performance gives rise to a fresh cause of action.
- In Queensland courts, enforceability issues in a compromised proceeding can be resolved summarily if it can be done with consent, or, at least, without any injustice but otherwise, it usually has to be the subject of separate proceedings. In any case, what is enforceable is the compromised (not the claimed) amount.
- QCAT mediations are dealt with in Chapter 2 Part 6 Division 3 QCAT Act. Sections 85, 87 and 88 and 89 relevantly provide:
85 Settlement at mediation
- This section applies if a settlement is reached by the parties to a proceeding at mediation.
- If the mediator is not a member, an adjudicator or the principal registrar, the mediator may—
- record the terms of the settlement in writing and have the parties sign the written terms; and
- file the signed written terms in the registry.
- If signed written terms of the settlement are filed in the registry under subsection (4), the tribunal may make the orders necessary to give effect to the settlement.
87 Limitation on making order giving effect to settlement
An order under this division giving effect to a settlement for a proceeding may be made only if the entity making the order is satisfied the tribunal could make a decision in the terms of the settlement or in terms consistent with the settlement.
88 Effect of order giving effect to settlement
- An order under this division giving effect to a settlement for a proceeding has the same effect as if it were an order made by the tribunal after deciding the proceeding.
89 Consequences if accepted offer to settle is not complied with
- This section applies if an offer to settle the dispute the subject of a proceeding is accepted, but the party who made the offer does not comply with its terms.
- The tribunal, on the application of the party who accepted the offer (the relevant party), may—
- if the relevant party is the applicant, make an order awarding the relevant party any or all of the things asked for in the proceeding.
- In Goldfield Projects Pty Ltd v Queensland Building and Construction Commission, the appeal tribunal held that s 89(2)(c) did not apply where an order had already been made giving effect to the settlement under s 88. The difference in that case, however, was that the compulsory conference was conducted by a member who made (and was able to make) a formal and binding order giving effect to the settlement agreement.
- Here, the mediator was not a member, adjudicator or principal registrar, and so did not make (and could not have made) an effective order. He merely signed the Form 48 certificate of mediation. From what I can see in the file, although the certificate was filed in the registry, no order was ever made by the tribunal under s 85(5) QCAT Act to give it effect.
- As such, the proceeding was not at an end, and s 89(2)(c) was still strictly ‘in play’ when the tribunal order under appeal was made.
- That said, I am not satisfied the tribunal exercised its discretion properly. Both the agreement reached and the manner in which it was breached are material considerations for the purposes of applying s 89(2) QCAT Act, but it does not appear from the transcript that either was taken into account. Failure to consider relevant matters is an error of law justifying a grant of leave so that the decision that should have been made in the first place can be substituted for the one made.
- In the circumstances, despite the applicant’s default, the just and equitable decision is, in my opinion, to order giving effect to the terms of the settlement.
- Leave to appeal is granted.
- The appeal is allowed.
- The tribunal decision in Clermont MCDO3/2015 is set aside.
- The applicant is to pay the respondent the amount of $1,000.00.
 This claim is contradicted by the respondent and the Dispute Resolution Centre in Mackay, and even if it was true, does not excuse the applicant from taking effective alternative steps to seek out the respondent to discharge his indebtedness within a reasonable time.
 Holsworthy Urban District Council v Holsworthy Rural District Council  2 Ch. 62.
 General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd  2 Qd R 6,10.
 cf Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd  VLR 555.
  QCATA 101.
 QCAT Act ss 84, 87.
 Ibid s 85(2).
 Pursuant to the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 74, this means the mediator is taken to have notified the principal registrar as required under QCAT Act s 82.
 The discretion is conferred by the provision’s use of the word ‘may’.
 Goldfield Projects Pty Ltd v Queensland Building and Construction Commission  QCATA 101 .
- Published Case Name:
Harrison v Kumari
- Shortened Case Name:
Harrison v Kumari
 QCATA 136
13 Sep 2016