Davis v Gray[2018] QCATA 147

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ms Davis engaged a company called Qualitybuild Pty Ltd (Qualitybuild) to do some building and car park renovation for her at her property at Buccan. It was a commercial venture.
2. [2]
   Mr Gray was the sole director and shareholder of Qualitybuild. Ms Davis and Qualitybuild entered into two contracts, the first on 20 December 2012 and the second on 10 February 2014.  Work was delayed under the first contract while assessments and insurance arrangements were put in place, but began in December 2013. The second contract was treated by the parties as replacing the first contract. It was a cost plus contract. Both contracts provided for regular payments by Ms Davis.^[1] The second contract provided for weekly payments.
3. [3]
   The work was not completed. In about June 2014, Mr Gray asked for payments to be made to him, rather than the company and Ms Davis complied.
4. [4]
   On 7 October 2014, Mr Gray sent an email to Ms Davis purporting to terminate the contract on the basis of ‘non-payment (of monies) in full.’
5. [5]
   Ms Davis filed an application for commercial building dispute in the tribunal seeking amongst other things the following relief:

That Mr Gray pay the amount of $38,544.31 to Vicki Davis by direct debit into Bendigo bank acc … for payments paid to John Gray in advance for work not done.

Mr Gray pay $16,480 for work directed by the QBCC for defective work requested to be repaired and not done.

6. [6]
   The proceeding was heard on 19 January 2017.  Orders were made by the Tribunal on 31 March 2017 dismissing Ms Davis’ application.
7. [7]
   Having found that the contracts were between Ms Davis and Qualitybuild,^[2] the Tribunal considered that the claim turned upon whether Mr Gray was personally liable to return any overpayment. The learned Member’s key conclusions were as follows:

[41] Both parties agree that all work done by the builder was governed by the 10 February 2014 contract.  Since all payments were made with the intention of paying for such work, it follows that all payments were made under the 10 February 2014 contract.  This means that any overpayment which may have occurred would be a payment made to Qualitybuild.  In so far as those payments were made to Mr Gray personally, he would have been acting as agent for Qualitybuild when receiving those payments.  There is no scope here for saying that he received this money from Mrs Davis in his personal capacity.  This is because all the payments were made under, and because of, the 10 February 2014 contract.  He may well have kept the money to himself, but if this did happen it would have been received by him in his personal capacity as directors fees. Therefore no money could be recovered back from him by Mrs Davis if she managed to show that she had over paid Qualitybuild.^[3]

8. [8]
   Ms Davis has appealed the Tribunal’s decision on the grounds of errors of law.  Leave to appeal is not required on questions of law only.^[4] 

The grounds of appeal

9. [9]
   The grounds of appeal set out in the appeal are far from clear, as indeed unfortunately were the issues for determination by the Tribunal, based as those were on the cases presented by the parties. 
10. [10]
    Fortunately, submissions filed in support of the appeal clarify the grounds of appeal. Ms Davis contends that the Tribunal erred in making findings that the payments to Mr Gray were received by him as an agent for Qualitybuild or as director’s fees, on four bases. Those bases are as follows: 

Ground 1: That the learned Member erred in finding that payments made to Mr Gray personally were received by him as agent for Qualitybuild or as director’s fees because that was not a ground relied upon by him or raised on his material filed in the tribunal.

Ground 2:  That the learned Member erred in finding such payments were received as agent for Qualitybuild or as director’s fees because there was no evidence to support that finding.

Ground 3:  That the learned Member erred in concluding that there was no scope for Mr Gray to receive payments other than as an agent for Qualitybuild because the conclusion was not legally correct.

Ground 4:  That the learned Member erred in failing to afford Ms Davis procedural fairness by failing to give her an opportunity to respond to a suggestion raised by the learned Member that payments received by the respondent were received on behalf of Qualitybuild or as director’s fees.

Grounds 1 and 2

11. [11]
    Ground 1: That the learned Member erred in finding that payments made to Mr Gray personally were received by him as agent for Qualitybuild or as director’s fees because that was not a ground relied upon by him or raised on his material filed in the tribunal.
12. [12]
    Ground 2:  That the learned Member erred in finding such payments were received as agent for Qualitybuild or as director’s fees because there was no evidence to support that finding.
13. [13]
    These grounds are conveniently dealt with together. In the appeal proceedings, Ms Davis contends that her claim against Mr Gray was for the sum of $38,544.31 misappropriated by him and intended for Qualitybuild. Nowhere in her material filed in the Tribunal, her evidence at the hearing or her submissions at the hearing before the learned Member was that assertion of misappropriation articulated.
14. [14]
    The Tribunal does not require the parties to file pleadings.  As noted in Sand & Surf Design Pty Ltd v Surrey & Anor: 

As there are no pleadings in the Tribunal, it can sometimes be difficult to identify the issues required for determination. As such, there is an enhanced importance for Tribunal members to themselves identify the issues from the application, response, the statements of evidence and the parties’ submissions during the course of the hearing.^[5]

15. [15]
    Given that, the failure of a party to specifically plead a cause of action or defence does not prevent the Tribunal from considering relevant causes of action or defences as may arise in the proceedings. On some occasions it will be the case that, as occurred here, the Tribunal discerns the issues to be resolved in the proceeding, rather than relying upon the unrepresented litigants to articulate them. Indeed, the Tribunal is required to take all reasonable steps to ensure that each party understands, among other things, the nature of assertions made in the proceeding and the legal implications of the assertions.^[6] However, as the Court of Appeal has since confirmed, that obligation does not permit the Tribunal to assist parties to make their respective cases, nor give advice to a party about how to conduct their case.^[7]
16. [16]
    Identification of the issues for determination proved problematic. Ms Davis failed to articulate her case clearly from the outset.  Her initiating application for a commercial building dispute sought, amongst other things, payment from Mr Gray of the sum of $38,544.31 ‘for payments paid to John Gray in advance for work not done.’ The basis for the claim was not identified. There was no mention or suggestion of misappropriation.  It is sufficiently clear that it was framed as a claim to recover money paid to a builder who has failed to complete work. That is, it was made as a claim for the return of an overpayment from a builder. No doubt, that is why the proceeding was commenced by way of an application for a commercial building dispute.
17. [17]
    In her application, Ms Davis set out reasons for the orders sought. Ms Davis reinforced again that the claim was against Mr Gray as a builder who has been paid moneys under a building contract:

Moneys have been paid to the builder Mr Gray in advance and I seek to be refunded for work promised but not completed.  Attachments refer to the invoiced amounts including labor (sic) costs (some of which are disputed) and the moneys paid and are unbalanced in favor (sic) of Mr Gray.

18. [18]
    Again, there is no allegation of misappropriation of monies by Mr Gray. Indeed, these statements tend to suggest that Ms Davis considered Mr Gray, not Qualitybuild, to be the responsible builder.
19. [19]
    Mr Gray’s documents filed in response to the claim did not clarify matters. He filed the wrong response document. Although the matter was a commercial building dispute, Mr Gray filed a response utilising a document prescribed for entirely unrelated minor civil dispute (MCD) - minor debt actions.
20. [20]
    In his response, Mr Gray asserted that he invoiced Ms Davis ‘for many months before I cancelled my Qualitybuild bank account only to save on bank fees.  She then put the cheques in my name for banking purposes, at my request.’
21. [21]
    In her statement of evidence dated 12 August 2016,^[8] Ms Davis stated:

John Gray began work on the building in early December 2013 with the extension of the car park area.

Subsequently the car park was begun.  Mr Gray asked me to sign a new contract for $285,000 in February 2014 and asked that he continue to be paid weekly and the invoices for contractors to be paid directly by me upon the invoices given to me as previously.  (See attached) Mr Gray began invoicing me as ‘John Gray’ not ‘Qualitybuild’.

22. [22]
    There was also the matter of the de-registration of Qualitybuild on 5 July 2015, well before Ms Davis commenced the proceedings. That said, it is not uncommon for an owner to seek to establish liability in a director of a limited liability building company that for one reason or another ceases to exist, leaving work unfinished or defective under a building contract.  Ms Davis’ identification of Mr Gray as a builder rather than the deregistered Qualitybuild seemed to be the significant issue for determination on the materials filed by the parties.
23. [23]
    At the hearing, the learned Member pointed out the problem of the deregistered company being party to the action.  He said to Mr Gray:

Member:   The position legally is that if we remove Qualitybuild from the claim, that doesn’t affect your liability.  It does not mean that you become liable.  As you say, the question here is whether you yourself personally made any contract or agreed to do any work or became – became liable for the Qualitybuild contract.

… The next stage in the hearing today as far as I am concerned will be to analyse exactly what work was done by Qualitybuild and what work was done by Mr Gray, if any, and I am going to concentrate on that, first of all, as a preliminary issue.  Does anyone have any objections to that being undertaken as a preliminary issue?  Ms Davis, do you have any objections?

Ms Davis:  No, I don’t.^[9]

24. [24]
    The learned Member later asked Ms Davis to explain how she contended Mr Gray was personally liable in her claim to which she responded:

Ms Davis: Well, I believe that most of the moneys that were given to him were given to his direct account, and especially a lot of the moneys that are in question right towards the end were given to him personally, because at one point during the building, he asked all the money to go to his account, and that he was the person that was overseeing all of the job.  There was no one else involved.  He is the one and only person signing contracts.

Member: Did he explain why he wanted the money to go to him personally?

Ms Davis: Because, he said, he was getting – his words were he is getting rid of Qualitybuild and – and he just said he doesn’t have that account anymore and he’s getting rid of Qualitybuild for some reason.  He didn’t explain it to me.

25. [25]
    The learned Member then asked the parties questions with a view to ascertaining the issues to be resolved:

Member: Now, Mr Gray, I am going to ask you some questions to help me to decide about this contractual issue as to whether you might be personally liable for anything that has happened here.^[10]

26. [26]
    The learned Member also enquired whether the company ceased to be responsible for the work in July through to November 2014 and whether Mr Gray did the work personally.^[11]
27. [27]
    Mr Gray’s response was ‘Well, I mean, I’ve – but, I mean, basically either/or, I still had a licence.’^[12]
28. [28]
    The learned Member considered the contracts between the parties. These didn’t clear up the confusion because the details inserted into the second contract of 10 February 2014 were as follows:

Contractor: John Gray

Trading as: Qualitybuild Pty Ltd.

29. [29]
    In relation to this, the learned Member said to the parties:

Member: so I have got to decide whether Mr Gray took over the cost plus contract, don’t I, really, because that does seem to be in the name of Qualitybuild, although it does name John Gray as contractor.  It says that he is trading as Qualitybuild Pty Ltd.  In the light of the earlier contract, it seems to me likely that that was a contract made by the company, rather than him personally.  So I have got to see if I can see anything that shows that he took over that contract personally.  So is there anything, Mrs Davis, that you can think that would make me think that, or would you like some time to think about that?

Ms Davis: I will – no, I think that Mr Gray was the person – the one and only person throughout the whole process that I was working with, and as to whether he is liable or not I really do not know.  When I contacted the solicitor in December 2014, he was talking about compensation for loss of income, which would be huge.^[13]

30. [30]
    The learned Member went on to ask questions about, what he referred to as, a second part of the case concerning the construction of a path to kennels.  He asked Mr Gray some questions:

Mr Gray: Look, I agree that the path was definitely done after the – generally after we signed the cost plus contract.

Member: Yes.  Well, I am going to have to decide whether it was done by Qualitybuild or by you personally, Mr Gray.

Mr Gray: Well, at that time, all the payments were going to Qualitybuild.

Member: Right.  Yes.  I mean, the payments are not, in fact, going to be very persuasive because there is an explanation why you closed the Qualitybuild account and, of course, you could just be receiving the money personally as directors drawings, but….^[14]  (italics added)

31. [31]
    This comment by the learned Member raised or suggested the possibility that the moneys received personally by Mr Gray might have been received as director’s drawings.  Neither party commented on it, nor were they invited by the learned Member to give evidence or make submissions about whether the money was received as director’s drawings.
32. [32]
    That said, towards the end of the hearing the learned Member twice invited the parties to add anything more they might want to say about the issues in the case. On both occasions, Ms Davis declined to do so.^[15]
33. [33]
    Nowhere in the material before the learned Member nor in the evidence given at hearing did Ms Davis suggest a cause of action based on misappropriation of funds by Mr Gray from Qualitybuild.  That possibility is raised for the first time in the learned Member’s reasons for decision. The learned Member mentions misappropriation as a possible basis for a theoretical claim, as he puts it, against Mr Gray personally even if he was not a party to the building contract in respect of the payments to him of $38,544.00.^[16] 
34. [34]
    The learned Member ultimately accepted that payments were made both to the company and Mr Gray personally, but he determined that at all times the contractor was Qualitybuild and that Mr Gray did not become the contractor after July 2014.^[17]
35. [35]
    In his reasons for decision, the learned Member said:

[33] As for the requests by Mr Gray for personal payment to him on several occasions, a reasonable person would suppose that he was taking director’s drawings from the company, as often happens with small companies.^[18]

36. [36]
    He went on to conclude (as set out previously):

[41] Both parties agree that all work done by the builder was governed by the 10 February 2014 contract.  Since all payments were made with the intention of paying for such work, it follows that all payments were made under the 10 February 2014 contract.  This means that any overpayment which may have occurred would be a payment made to Qualitybuild.  In so far as those payments were made to Mr Gray personally, he would have been acting as agent for Qualitybuild when receiving those payments.  There is no scope here for saying that he received this money from Mrs Davis in his personal capacity.  This is because all the payments were made under, and because of, the 10 February 2014 contract.  He may well have kept the money to himself, but if this did happen it would have been received by him in his personal capacity as directors fees.  Therefore no money could be recovered back from him by Mrs Davis if she managed to show that she had over paid Qualitybuild.^[19]

37. [37]
    There was no evidence led (for example, financial statements of Qualitybuild)  suggesting that Mr Gray received money as agent for the company, nor that Mr Gray kept monies paid to him as director’s drawings.  No mention was made about such things, except by the learned Member, in the comment identified earlier.
38. [38]
    There was no evidence before the Tribunal to the effect that Mr Gray received any monies as agent for Qualitybuild or took to his own use those funds paid by Ms Davis as director’s fees, nor available to draw factual inferences to this effect. The making of a finding of fact in the absence of evidence to support it constitutes an error of law by the decision-maker.^[20]

Ground 3

39. [39]
    Ground 3:  That the learned Member erred in concluding that there was no scope for Mr Gray to receive payments other than as an agent for Qualitybuild because the conclusion was not legally correct.
40. [40]
    The learned Member said:

[3] The claim is in two parts:-

…….

b) A claim for $38,544.31 being money paid to Mr Gray but which was an overpayment.

…..

[5] Claim b) in theory could be good against Mr Gray even if he was not a party to the contract. This could be, for example, if Mrs Davis entrusted him with her money as contractual payments but he misappropriated it.

41. [41]
    However, as discussed earlier, at paragraph [41] of his reasons for decision, he later found that there was no scope for saying that Mr Gray received the money from Ms Davis in his personal capacity.
42. [42]
    On appeal, Ms Davis contends that in reaching the conclusion that there was no scope for saying Mr Gray received the money from her in his personal capacity, the learned Member erred in law because Mr Gray could have received money to which he was not entitled and been unjustly enriched. In doing so, she points to evidence that she submits weighs against the finding that the payments were made to Qualitybuild.
43. [43]
    It is sufficiently clear having regard to the extracts from paragraphs [3], [5] and the whole of [41] above, that the learned Member’s finding sought to be impugned in paragraph [41] is not a statement of law, as Ms Davis’ ground of appeal contends. In context, it is a further finding underpinned by the erroneous factual inferences drawn by the Tribunal, as discussed in relation to Grounds of Appeal 1 and 2.
44. [44]
    In making this finding, the learned Member again erred in law. Again, there was no evidence before the Tribunal to support it.

Ground 4

45. [45]
    Ground 4:  That the learned Member erred in failing to afford Ms Davis procedural fairness by failing to give her an opportunity to respond to a suggestion raised by the learned Member that payments received by the respondent were received on behalf of Qualitybuild or as director’s fees.
46. [46]
    The  learned Member’s comment during the hearing that the payments made directly to Mr Gray might be categorised as director’s drawings was no more than a passing comment. He did not specifically invite the parties to adduce evidence or submissions as to the possibility.
47. [47]
    On the two occasions when the learned Member asked the parties whether there was anything more they might like to say about the issues, he provided some opportunity for the parties to comment about such things. However, the parties had not raised the issue and they were not directed by the learned Member to address the possible director’s drawings issue that he had only very briefly mentioned. Nor were they asked to make submissions about the possibility of misappropriation by Mr Gray.
48. [48]
    When the learned Member came to prepare reasons for decision, it should have been apparent that the parties had not been given a reasonable opportunity to be heard on whether Mr Gray received the monies as agent for Qualitybuild and as director’s fees; and whether, in the alternative, there were any other submissions to be made as to the events. (Perhaps these may have included submissions which related to any alleged misappropriation of monies. That said, as apparently conceded by Ms Davis on appeal, any claim of misappropriation does not fall within the tribunal’s jurisdiction for a commercial building dispute.)
49. [49]
    The Tribunal’s obligations to accord natural justice to parties and to ensure that they understand assertions made and the legal implications of those assertions do not extend to making or running the parties’ cases for them.^[21] The rules of natural justice are flexible according to the circumstances. Relevantly, parties must receive a fair hearing from an unbiased tribunal. The hearing rule requires essentially that a party has reasonable opportunity to present their case, know and respond to the case against them, test the evidence and make submissions. Importantly, parties must be afforded the opportunity to respond to all credible, relevant and significant matters raised against them. Usually, matters raised against a party will be raised by the other party.
50. [50]
    However, sometimes where litigants are unrepresented as here, the Tribunal in identifying the issues for determination in the proceeding may find itself raising them. Here, the issues arise from the learned Member’s own comments and his reasons for decision. If the Tribunal identifies issues that it considers relevant and significant to the disposition of the proceedings, it is obliged to squarely raise them and invite the parties to give evidence and make submissions about them.
51. [51]
    In deciding the proceeding with regard to issues identified by the Tribunal, but without the parties being given a proper or reasonable opportunity to provide evidence and/or submissions about them, the Tribunal failed to accord procedural fairness to the parties. This constitutes an error of law.
52. [52]
    We make the observation that in the usual course, a Member may find themself raising the legal issues arising out of the evidence and submissions of self-represented litigants and ensuring that parties understand the assertions made by each party respectively and the legal implications of the assertions. We caution against raising issues that do not emerge directly from the parties’ cases as presented. As discussed earlier, it is not the role of the Tribunal to assist parties to make their cases, nor give advice about how to conduct them.

Disposition issues

53. [53]
    The Tribunal fell into error.  The errors upon which we have decided the appeal are errors of law. Accordingly, the Appeal Tribunal must proceed in accordance with s 146 of the QCAT Act.^[22]
54. [54]
    However, there are issues affecting the proper disposition of the appeal arising from Ms Davis’ claim for misappropriation, as it is now framed. As is apparent, Ms Davis does not appeal the Tribunal’s finding that Qualitybuild was the relevant contracting party or the proper respondent in respect of any claim about defective building work. Qualitybuild was removed from the action by order of the learned Member.  That was appropriate given it had been de-registered in 2015. 
55. [55]
    The claim that Ms Davis now seeks to have decided by the Tribunal does not relate to overpayments, but whether or not Mr Gray misappropriated payments paid to him but which were intended to be made to Qualitybuild for the construction work being undertaken by that company for Ms Davis. With the issue now identified clearly, it seems for the first time, as a restitutionary claim of unjust enrichment, how is the matter to be disposed of on appeal? 
56. [56]
    Ms Davis now submits the matter should be remitted to the tribunal for hearing before a different member ‘limited to the claim for overpayments’ and capped at $25,000.00, as a minor civil dispute (MCD). That is, she now contends that the claim made by her falls within the tribunal’s MCD jurisdiction, rather than its jurisdiction for building disputes.
57. [57]
    For the reasons explained in the paragraphs that follow, we would agree that the restitution claim by Ms Davis against Mr Gray does not fall within the definition of a commercial building dispute.
58. [58]
    The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provides that a person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute.^[23] "Building dispute" is defined in Schedule 2 to that Act as ‘(a) a domestic building dispute or (b) a minor commercial building dispute or (c) a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79.’
59. [59]
    ‘Commercial building dispute’ is defined in the schedule to cover various scenarios including but not limited to a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work.
60. [60]
    The expression reviewable commercial work is defined as tribunal work other than reviewable domestic work.  The expression reviewable domestic work is defined to include that set out in schedule 1B, section 4.
61. [61]
    When this jurisdiction was exercised by the former Queensland Building Tribunal under the Queensland Building Tribunal Act 2000 (Qld) (repealed), what is now described as tribunal work was then described as building work. According to the explanatory notes to the Commercial and Consumer Tribunal Bill 2003 (Qld) (which created the interim body having jurisdiction after the Building Tribunal and prior to the inception of QCAT) the term "building work" was changed to tribunal work to avoid confusion.
62. [62]
    What is relevant to the matter at hand is that the words ‘relating to the performance of reviewable commercial work’ have a limiting or qualifying effect on jurisdiction:

The words ‘related to the performance of reviewable domestic work’ plainly have a limiting or qualifying effect. Otherwise it would mean that the tribunal is invested with jurisdiction over all claims in negligence for property damage or economic loss of any kind, which cannot have been the legislative intention.^[24]

63. [63]
    Though the court there was concerned with reviewable domestic work, the statement about the limiting or qualifying effect on jurisdiction is appropriately applied to the expression reviewable commercial work. A commercial building dispute must relate to the performance of building construction work. There must be some factor associated with the efficacy or completion or lack of completion of construction work in dispute for the matter to be within the jurisdiction of the Tribunal. The claim as now framed by Ms Davis against Mr Gray does not have that nexus. 
64. [64]
    It does appear to fall within the jurisdiction exercised by the tribunal in MCDs as a liquidated demand of money.  That jurisdiction has a monetary limit however of claims of not greater than $25,000.00. Ms Davis’ counsel confirms that she is prepared to abandon any excess beyond the tribunal’s $25,000.00 MCD monetary limit and have the matter remitted to the tribunal in its MCD jurisdiction. That said, Ms Davis now concedes in effect that she had no basis to make a claim for a commercial building dispute, and now intends to agitate what is essentially a new claim.
65. [65]
    Appeal procedures are essentially for correcting error made by the tribunal in deciding applications before it. The Tribunal here made errors of law in deciding the commercial building dispute before it. Ultimately however, it seems Ms Davis now accepts that those errors aside, her claim for a commercial building dispute was misconceived and cannot succeed. It seems she now considers that she should have made a different claim, in the tribunal’s MCD jurisdiction (or in a court with jurisdiction for the matter).
66. [66]
    Section 146 of the QCAT Act provides for the disposition of appeals decided on a question of law. Other than in circumstances when the Appeal Tribunal may appropriately dispose of the appeal by confirming or amending the decision^[25]  or setting it aside and substituting its own decision,^[26] the Appeal Tribunal may relevantly return the matter to the Tribunal who made the decision for reconsideration.^[27] It may also make any other order it considers appropriate, whether or not in combination with an order of the type specified earlier.
67. [67]
    As a matter of statutory construction, s 146 contemplates that a matter returned to the Tribunal, will be returned to the Tribunal as previously constituted to decide the application brought. Irrespective that the QCAT Act exhorts informality^[28] and accessibility,^[29] it also provides that parties take responsibility for the conduct of their proceedings or face consequences if they fail to do so.^[30] It also requires that the Tribunal act fairly towards all parties.^[31]
68. [68]
    Here, Ms Davis seeks orders that the proceeding go to a differently constituted Tribunal, to have a different claim than the one made, decided. It is arguably more appropriate for Ms Davis to make a fresh application for an MCD if she wishes to do so. In doing so, it would be hoped that with the benefit of legal advisors, or if she no longer retains them, at least the benefit of the Tribunal’s and Appeal Tribunal’s  deliberations, she would now provide evidence and submissions that are directed to that new claim, rather than the poorly articulated and unfocussed material presented in the building claim. It is arguably fairer to Mr Gray if this occurs, so that Mr Gray also provides material that is responsive to a clearly articulated claim. It would also ensure tribunal resources are most effectively used in further deciding the issues.

Conclusions and orders

69. [69]
    Given the errors of law identified, the Tribunal’s decision made on 31 March 2017 should be set aside and the appeal allowed.
70. [70]
    However, our preliminary view is that our only other order should be dismissing the application for a commercial building dispute on the basis that it is misconceived. Before we proceed to take this step, we propose to invite the parties to make any submissions they wish to rely upon in relation to this proposed course.
71. [71]
    We make orders and directions accordingly.