K and K Consulting Engineers Pty Ltd v GC Property Pty Ltd (t/a GC Marine)
[2018] QCATA 153
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- K and K Consulting Engineers Pty Ltd v GC Property Pty Ltd (t/a GC Marine)[2018] QCATA 153
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K and K Consulting Engineers Pty Ltd v GC Property Pty Ltd (t/a GC Marine)[2018] QCATA 153
K and K Consulting Engineers Pty Ltd v GC Property Pty Ltd (t/a GC Marine)[2018] QCATA 153
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | K and K Consulting Engineers Pty Ltd v GC Property Pty Ltd (t/a GC Marine) [2018] QCATA 153 |
PARTIES: | K AND K CONSULTING ENGINEERS PTY LTD (appellant) |
| v |
| GC PROPERTY PTY LTD (t/a GC MARINE) (respondent) |
APPLICATION NO: | APL073-18 |
ORIGINATING APPLICATION NO/S: | MCDO23 of 2017 (Southport) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 19 October 2018 |
HEARING DATE: | 17 October 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – nature and limitations of applications for leave to appeal – minor civil dispute – whether breach of contract – claim for refund of deposit – settlement at primary hearing – judgment by consent – whether settlement and order should be set aside – whether primary tribunal unduly influenced settlement – contemporary principles of case management – whether case management appropriate – no appellable error demonstrated Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 5, s 83, s 138, s 139 Uniform Civil Practice Rules 1999 (Qld) r 5, r 523, r 524 Coulton v Holcombe (1986) 162 CLR 1 Hayward v Zurich Insurance Company plc [2016] UKSC 48 Hillman v Hillman [1977] 2 NSWLR 739 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Snell v Morgan [2011] QCATA 316 Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 Watson v Sadiq [2013] EWCA (Civil) 822 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr H Praveen (director) |
Respondent: | Mr R Browning (director) |
REASONS FOR DECISION
- [1]This is a most unusual dispute. Beginning as a claim for breach of contract, it has morphed into an application for leave to appeal a judgement entered by consent.
- [2]Originally the respondent GC Property Pty Ltd (`GC’) sued the appellant, K & K Consulting Engineers Pty Ltd (`K & K’) to recover a deposit paid by GC under an engineering design agreement allegedly repudiated by K & K.[1]
- [3]The matter came before an adjudicator at Beenleigh on 22 March 2018. It was listed for mediation, but K & K claimed that it received no notice to that effect. However, QCAT contacted K & K (Mr Praveen) by telephone. The adjudicator was prepared to finalise the matter there and then, subject to the parties’ consent. Otherwise he would adjourn it to a date to be fixed.
- [4]The parties chose to proceed as a trial.[2] The adjudicator inquired whether there was any prospect of settlement.[3] At all events, neither party objected to immediate negotiations. GC (Mr Browning) opened the bidding with an offer to take $5,000 in lieu of the $6,200 (amount rounded) that his company claimed.[4]
- [5]
- [6]Whereupon the adjudicator commented: `You’re 500 apart Mr Browning. Is that acceptable or not? You don’t have to accept it.’[8]
- [7]
- [8]But Mr Praveen soon began to reconsider his consent. His company sought a reopening[11]. That application was refused on 29 March 2018.
- [9]Now Mr Praveen, possibly with his `financial difficulty’ in mind,[12] seeks leave to appeal the consent order on the ground that he was `pushed by the adjudicator] into the negotiation process by phone. ... The [adjudicator] made a decision without hearing my opinion, which is totally unfair for [sic] me.’[13]
- [10]The application for leave foreshadows an attempt to reargue the merits of the original claim: `I do not responsible [sic] to pay the money as stated by [GC], who is not presenting the correct information ...[14].
- [11]However, an application for leave to appeal is not an opportunity to reargue the case presented for trial, or to visit or revisit questions of fact that could have been canvassed at the trial, but were not.[15] This observation applies to the appellant’s belated contention, at the hearing of the appeal, that K & K’s debt to the respondent was considerably less than the amount GC alleged.
- [12]But an application for leave to appeal is not an opportunity for a retrial of issues that were, or should have been, argued before the adjudicator. At this stage the proper question is whether the appellant was `pushed into the negotiation process’, so that the tribunal’s conduct of the proceedings involved an error of law resulting in a substantial injustice to the appellant.
- [13]
- [14]
- [15]According to a study of the Federal Court, 87% of judges said that `the best outcome of most cases is a settlement rather than a trial.[20] The Uniform Civil Practice Rules 1999 (Qld) authorise a court to direct, at the request of the parties, or on its own initiative, that a settlement conference be held.[21] The court may then `make the suggestions the court considers appropriate to help in promptly disposing of the proceeding’.[22] The `philosophy’ of the modern rules is `to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense ... avoiding undue delay, expense and technicality’.[23] Such rules merely formalise what judges have done for years.
- [16]Similarly, the Act governing this tribunal directs it to `deal with matters in a way that is accessible, fair, just, economical, informal and quick’.[24] Specifically, the tribunal should `encourage the early and economical resolution of disputes before [it].’[25] Plainly, that is what the adjudicator was endeavouring to do.
- [17]The transcript does not exhibit any effort by the adjudicator to dragoon the parties into a settlement. The appellant’s only complaint was that he was short of money; that may well have been a bargaining counter. The adjudicator made it clear that they did not have to accept any offer by the other party, or any recommendation that he might make. He simply told them, in matter of fact way, that if they did not negotiate, or did not do so successfully, a further hearing would be arranged at a later time.
- [18]Both parties are experienced business and professional men. The appellant told the appeal tribunal that he had two years’ experience in charge of K & K, and some ten years in professional practice. He advertises several tertiary qualifications. He could hardly be described as an unsophisticated litigant.
- [19]Neither party entered any protest against negotiation, and neither sought an adjournment. It was the appellant who made the first, albeit tentative offer, and, when it was rejected, he made two higher offers. In the event, he persuaded the respondent to abandon some $2,700 of his initial claim. He showed every sign of being an active and willing negotiator. Any regrets were an afterthought - `the wit of the staircase’ as the French are wont to say.
- [20]No doubt, if a settlement had not been reached, the adjudicator would have been well advised to leave the hearing to someone else, but that is a hypothetical suggestion that need not be pursued apply here. I am by no means persuaded that the adjudicator applied any improper or undue pressure in encouraging this settlement. I discern no error of law or judicial impropriety in his conduct of these proceedings. The application for leave to appeal must be refused.
ORDER
- [21]The application for leave to appeal is dismissed.
Footnotes
[1] Initial application filed 15 January 2018.
[2] Hence the privilege relating to mediations (QCAT Act s 83) did not apply.
[3] Transcript of hearing 22 March 2018 (`T’) page 3 lines 1-4, 17-22.
[4] T page 4 line 30.
[5] T page 4 line 38.
[6] T page 4 line 44.
[7] T page 5 lines 5-6.
[8] T page 5 lines 12-13.
[9] T page 5 line 15.
[10] T page 5 lines 25-26.
[11] Under ss 138-139 of the QCAT Act.
[12] See paragraph [5] above.
[13] Addendum to application for leave filed 3 April 2018 third and fourth paragraphs.
[14] Ibid fourth paragraph.
[15] Coulton v Holcombe (1986) 162 CLR 1 at 7; Snell v Morgan [2011] QCATA 316 at [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[16] Hillman v Hillman [1977] 2 NSWLR 739; Hayward v Zurich Insurance Company plc [2016] UKSC 48.
[17] Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712.
[18] Watson v Sadiq [2013] EWCA (Civil) 822. (English Court of Appeal).
[19] Watson v Sadiq, above.
[20] A de Garis The Role of the Federal Court in the Settlement of Disputes (1994) 13 Univ Tas Law Review 217 at 223.
[21] UCPR rule 523 (emphasis added).
[22] UCPR rule 524(2)(c).
[23] UCPR rules 5(1) and (2).
[24] QCAT Act s 3(b).
[25] QCAT Act s 5(b).