Gillham v Kernohan Construction Pty Ltd
[2023] QCATA 64
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- Unreported Judgment
- Gillham v Kernohan Construction Pty Ltd[2023] QCATA 64
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Gillham v Kernohan Construction Pty Ltd[2023] QCATA 64
Gillham v Kernohan Construction Pty Ltd[2023] QCATA 64
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gillham v Kernohan Construction Pty Ltd [2023] QCATA 64 |
PARTIES: | Austin Gillham (applicant/appellant) v Kernohan Construction Pty Ltd (respondent) |
APPLICATION NO/S: | APL191-19 |
ORIGINATING APPLICATION NO/S: | BDL116-15 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 31 May 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown Member Howe |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the appellant filed an application for correction alleging error in Appeal Tribunal calculations of damages and interest – where the application for correction is filed out of time – where the factors affecting whether to grant an extension of time include the length of delay, the adequacy of explanation for delay, the merits of the proceeding, prejudice to others and the interests of justice – where the appellant provided no explanation for the late application Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1), s 135 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 90(b) Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 Sands v McDougall & The Commissioner for Taxation (1999) 2 VR 114 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
Applicant: | Queensland Legal |
Respondent: | Bathersby Legal |
REASONS FOR DECISION
- [1]
- [2]The applicant has applied to have the decision corrected.
- [3]Section 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides as follows:
135 Tribunal may correct mistake
- (1)The tribunal may correct a decision made by it in a proceeding if the decision contains—
- (a)a clerical mistake; or
- (b)an error arising from an accidental slip or omission; or
- (c)a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or
- (d)a defect of form.
- (2)The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
- (3)An application under subsection (2) must be made within the period, and in the way, stated in the rules.
- (4)A party can not make an application under subsection (2) in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.
- (5)Subsection (4) applies whether or not the appeal or application has been decided.
- [4]
- [5]By s 61(1) of the QCAT Act the Tribunal may:
- (a)extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
- (b)extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
- (c)waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
- (a)
- [6]By s 61(3), the tribunal cannot extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
- [7]The application for correction was required to have been filed by 28 February 2022. The application was filed fifty (50) days late. The delay in filing the application is not explained by the applicant nor has the applicant applied to extend the time to file the application.
- [8]In Harper Property Builders Pty Ltd v Queensland Building and Construction Commission[3] the Appeal Tribunal said the following regarding the relevant considerations in extending time to file an application to review a decision:
Whilst recognising that the discretion to extend time is unfettered (except to the extent that s 61 of the QCAT Act precludes such an extension when it would cause prejudice or detriment, that could not be remedied by an appropriate order for costs or damages), the following matters have been recognised … as particularly relevant considerations in such exercises:
(a) the length of the delay;
(b) the adequacy of explanation for the delay;
(c) the merits of the proceeding sought to be litigated;
(d) prejudice to others; and
(e) the interests of justice (sometimes expressed as ‘general considerations of fairness’).[4]
Consideration
- Length of the delay
- [9]The application for correction was filed 50 days, or just over 7 weeks, late. The delay is significant in the context of an application to correct a final decision. Such an application should be brought promptly. This factor weighs against extending time.
- Adequacy of the explanation for the delay
- [10]There has been no attempt by the applicant to explain the delay in the filing of the application. This factor weighs against extending time.
- The merits of the application
- [11]The applicant says that the decision of the Appeal Tribunal adopts mathematical errors in the decision at first instance requiring correction. The respondent says that the matters complained of by the applicant are not properly the subject of correction but go to the substance of the Appeal Tribunal decision.
- [12]The matters complained of by the applicant should, in our view, have been raised in the appeal. The applicant points to four errors:
- (a)Allowance for variation 1. At first instance the Tribunal allowed the respondent $78,323.65 in respect of contractual variations. On appeal, we found that the respondent was not entitled to recover any amount for variation 1. The amount of the variation, $10,773.84, was required to be deducted from the amount to which the respondent was entitled. A further amount of $38.94 was also conceded by the respondent. The total reduction in the respondent’s contractual entitlement to remuneration was $10,812.78. We are unable to discern precisely what the applicant’s complaint is in relation to this item.
- (b)Allowance for Scott Schedule item 32. The error in the calculations at first instance asserted by the applicant is $10.89. The item was not the subject of appeal.
- (c)Allowance for Scott Schedule item 46. The error in the calculations at first instance asserted by the applicant is $10.00. The item was not the subject of appeal.
- (d)Interest calculations. The applicant says that the parties’ respective entitlements to interest on the amounts awarded were not addressed by the Appeal Tribunal. At first instance, the Tribunal addressed the issue of interest as follows:
- (a)
[622] I find the Builder is to pay Mr Gillham $9,810.71 interest calculated to 14 June 2019.
[623] Mr Gillham claims interest on his claims at 10% per annum from the date they became payable as follows:
(a) from 10 June 2015 in respect of Items 1 to 67, 70, 73, 75, 76 and for electricity usages and the battery and cables for generator item;
(b) from 4 December 2015 on liquidated damages;
(c) from 1 April 2016 on actual damages. The claim for interest from 10 June 2015 appears to be made on the basis that it was the original Date for Practical Completion Stage under the Contract. I am not satisfied that Mr Gillham’s damages became payable on the original Date for Practical Completion. Mr Gillham’s damages are due for payment as a consequence of the determination of his damages claim by the Tribunal. Unless there is evidence before me that he has expended money I am not satisfied that interest should accrue from an earlier time. I accept that interest at 10% per annum is applicable.
[625] There is evidence before me that Mr Gillham paid amounts in respect of the following Scott schedule items:
(a) 5 – Fondis unit - $3,659;
(b) 8 – Wine racks - $3,784;
(c) 49 – Door stop - $22.60;
(d) 51&52 – Tiles - $228.48;
(e) 70 – Manholes - $190.37;
(f) Battery & cables - $190.25;
(g) Electricity - $414.73.
[626] Of these items, items to the value of $7,694.08 were paid for by Mr Gillham prior to the Builder claiming Practical Completion. These claims were detailed in the statement filed 27 June 2016.252 I am not satisfied that these amounts could be said to have been payable on 10 June 2015. The submissions do not draw to my attention an earlier specific demand for payment for these items. In these circumstances, I find that interest accrues on and from 28 June 2016 at 10% per annum or $2.11 per day. On my calculation interest is payable for a period of 1082 days to 14 June 2019 and that interest payable is $2,283.02.
[627] The evidence is that Mr Gillham arranged for another contractor to install a second manhole on or about 6 May 2016. The claim was included in the statement filed 27 June 2016. I am not satisfied that this amount could be said to have been payable on 10 June 2015. The submissions do not draw to my attention an earlier specific demand for payment for this item. I find that interest accrues on $190.37 from on and from 28 June 2016 at 10% per annum or $0.05 per day. On my calculation interest is payable for a period of 1082 days to 14 June 2019 and that interest payable is $54.10.
[628] The evidence is that Mr Gillham arranged for a contractor to rectify the damage to the battery and generator on or about 25 January 2017. The claim was included in the statement filed 9 March 2017. I am not satisfied that this amount could be said to have been payable on 10 June 2015. The submissions do not draw to my attention an earlier specific demand for payment for this item. I find that interest accrues on $190.25 from on and from 10 March 2017 at 10% per annum or $0.05 per day. On my calculation interest is payable for a period of 827 days to 14 June 2019 and that interest payable is $41.35.
[629] The evidence is that Mr Gillham did not request payment of any amount for electricity until it was included in the statement filed 9 March 2017. I find that interest on $414.73 accrues on and from 10 March 2017 at 10% per annum or $0.11 per day. On my calculation interest is payable for a period of 827 days to 14 June 2019 and that interest payable is $90.97.
[630] I find interest accrues on the sum of $20,800 for liquidated damages payable at the time of Mr Gillham taking possession. Interest accrues from on and from 5 December 2015 at 10% per annum or $5.70 per day. On my calculation interest is payable for a period of 1288 days to 14 June 2019 and that interest payable is $7,341.60.
The period from the date of the decision at first instance and the decision in the appeal was 83 weeks. The applicant says that he is entitled to $7,571.54 in additional interest and that the respondent is entitled to an additional amount for interest of $5,285.22.
- [13]We are not persuaded that there was any error requiring correction in respect of (a), (b) and (c) above.
- [14]
We have heard a good deal of argument about what is and what is not comprehended by the slip rule, to which I now return. One of the difficulties - and it is a difficulty often encountered in considering what was said in previous decisions - lies in determining whether the court, in describing the state of affairs which in its view existed, is formulating a test which must be met or merely speaking of the facts of the given case, which in its view are enough to warrant relief. For example, in Hatton v Harris [1892] A.C. 547 Lord Herschell said at 558, `I cannot doubt that the correction would at once have been made' if the matter had been drawn to the attention of the judge who made the decree. In Storey & Keers Pty. Ltd. v Johnstone (1987) 9 N.S.W.L.R. 446 at 453 McHugh J.A. accepted this as laying down what was in general the test.
In L. Shaddock & Associates Pty. Ltd. v Parramatta City Council (No. 2) [1982] HCA 59; (1982) 151 C.L.R. 590 at 593 the court said:
We have no doubt that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it.
In Tak Ming Co. Ltd. v Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300 at 304; [1973] 1 All E.R. 569 at 572 the Judicial Committee referred to the determination of the primary judge (`I am in no doubt whatever ... that I would have made an award of interest') and observed that on the basis of that explanation the slip rule had been brought into operation.
In Commonwealth v McCormack [1984] HCA 57; (1984) 155 C.L.R. 273 at 277 the court said:
If the matter had been raised on the hearing of the appeals, such an order would have been made as of course ...
In Elyard Corporation Pty. Ltd. v DDB Needham Sydney Pty. Ltd. (1995) 61 F.C.R. 385 Lockhart J., with whose judgment Black C.J. concurred, said at 390-1:
The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy ...
Counsel for the appellants and for the respondent invited us to adopt that test. The test commends itself to me and I think it should be adopted.
- [15]In its submissions the respondent says that the failure by the Appeal Tribunal to address the issue of interest is not a matter falling within s 135 of the QCAT Act. The respondent’s submissions do not address whether the issue of interest as asserted by the applicant is contentious although it is inferred from the respondent’s submissions that the proposed amendment is not without controversy.
- [16]In our view, the proposed amendment of the final decision in relation to the calculation of interest is not a matter properly the subject of a correction. If the applicant asserts error by the Appeal Tribunal then it was for the applicant to proceed accordingly.
- [17]In any event the amount of interest in question, which we calculate at $3,940.92, is relatively modest.
- Prejudice to others
- [18]The respondent does not assert prejudice if the correction is allowed other than to submit that the matters the subject of the application are not appropriately dealt with under s 135 of the QCAT Act. This factor tends to weigh against granting the extension of time.
- Interests of justice
- [19]The applicant had the opportunity to pursue other avenues if he asserts error in the decision. He has not done so. In our view, this is not a factor weighing in favour of allowing the application for correction.
Conclusion
- [20]There has been a failure by the applicant to explain the delay in the filing of the applicant. Nor does a consideration of the other factors to which we have referred persuade us that this is a case in which an extension of time to file the application for correction should be permitted.
- [21]The application to extend time is refused. The application for correction is dismissed.