Edwards v Sovereign Homes Qld Pty Ltd [2022] QCAT 244

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Edwards v Sovereign Homes Qld Pty Ltd [2022] QCAT 244 PARTIES: DONALD BRUCE EDWARDS (applicant) v SOVEREIGN HOMES QLD PTY LTD (respondent) APPLICATION NO/S: REO004-22 MATTER TYPE: Building matters DELIVERED ON: 28 June 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The Application to reopen BDL235-15 is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY – where the applicant claims new evidence has been discovered – whether the applicant would suffer substantial injustice – whether the reopening discretion should be exercised Queensland Civil and Administrative Tribunal Act 2009 (Qld). D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Edwards v Sovereign Homes Qld Pty Ltd [2020] QCTA 146 Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4 Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 410 Sovereign Homes Qld Pty Ltd v Edwards [2018] QCAT 276 Stanton v Electrics Downunder Pty Ltd [2019] QCAT 158 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: Self-represented Respondent: P W Evans Solicitor -- 1 of 4 -- 2 REASONS FOR DECISION [1] In 2015, Sovereign Homes Qld Pty Ltd (‘Sovereign’) commenced proceedings against Donald Bruce Edwards to recover monies owing pursuant to a building contract for renovations to his home completed in December 2014. Mr Edwards counter-applied for damages for defective work.1 [2] After 3 days of hearing I delivered my decision in this matter on 21 August 2018. On 3 December 2018 I delivered a decision in respect to costs of the initial proceedings.2 [3] Mr Edwards unsuccessfully appealed both decisions. The Appeal Tribunal delivered its decision on 23 October 2020.3 [4] Mr Edwards then unsuccessfully appealed to the Court of Appeal.4 The Court of Appeal handed down its decision on 4 February 2022. [5] Mr Edwards now seeks to reopen the costs part of the proceedings pursuant to s. 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). (‘the QCAT Act’). [6] The decision for which a reopening is sought relates to the following orders I made: (c) Mr Edwards pay 70% of Sovereign’s costs to be agreed and failing agreement to be assessed on the Magistrates Court scale appropriate to amounts exceeding $50,000 on a standard basis; (d) Sovereign to pay Mr Edwards 30% of his costs of the cross-application to be agreed and failing agreement to be assessed on the Magistrates Court scale appropriate to amounts exceeding $50,000 on a standard basis; [7] In Stanton v Electrics Downunder Pty Ltd5 Senior Member Brown in considering an application to reopen proceedings under s. 138 of the QCAT Act said: The power to reopen a proceeding is one of the limited exceptions to the application of the doctrine of functus officio found in the QCAT Act. The power of the tribunal to reopen a proceeding is strictly circumscribed. There are sound policy considerations underpinning these constraints, principally the need to ensure that there is finality in litigation and that a party cannot ‘go behind’ a decision of the tribunal except in very limited circumstances. [8] The ground relied upon by Mr Edwards for a reopening of the costs proceeding is as described in paragraph (b) of the definition of ‘reopening ground’ in Schedule 3 of the QCAT Act being: reopening ground, for a party to a proceeding, means— 1 Sovereign Homes Qld Pty Ltd v Edwards [2018] QCAT 276 2 Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 410 3 Edwards v Sovereign Homes Qld Pty Ltd [2020] QCTA 146 4 Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4 5 [2019] QCAT 158. See also D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 -- 2 of 4 -- 3 (a) …; or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. [9] Mr Edwards submits that the Court of Appeal decision shows that Sovereign and/or its legal advisors conducted the matter with wilful disregard of known facts and law. He particularises the conduct as follows: a. Knowingly, inter alia, misleading QCAT in claiming a new contract was required to rectify damage to the contract works from a storm event; b. Commencing these proceedings knowing it was in breach of contract and that no new contract was required and continued to press these claims throughout; and c. Was in breach of Clause 16 of the contract, inter alia, for not claiming an extension of time when he became aware the storm damage on 28 November 2014, two weeks before claiming practical completion. [10] Mr Edwards relies upon the findings Fraser JA (with whom the other members of the Court agreed) where His Honour observed at paragraph [31]: It is reasonably arguable that the scope of the contractor’s work under clause 1 comprehends the repair of damage to works incurred before practical completion, at least in a case where the damage results from an event in respect of which the contractor was obliged to take out insurance cover and was entitled to an extension of time. Such a construction derives support from the general conditions described in the preceding paragraph, most obviously from the incorporation in clause 1 of the reference in the definition of “works” in clause 37.1 to “the works to be ... handed over to the owner ...as shown in the contract documents”. For that reason, it is reasonably arguable that the tribunal member erred in law by finding in [65] of his reasons that the contract did not provide for the situation where work already completed under the contract was damaged or destroyed by events not within control of the contractor. (my emphasis) [11] Mr Edwards submits that one of the critical findings made by the Court of Appeal was that a new contract was required to rectify damage caused by the hailstorm. The Court of Appeal’s finding is not fresh evidence. [12] Mr Edwards confuses the findings of the Court of Appeal as fresh evidence. It is not. The findings referred to, was the Court of Appeal’s construction of the Contract. This Tribunal erroneously reached a different opinion, but the Court of Appeal’s construction was always open on the evidence. That evidence, on which the findings were based, was available at the time of the original hearing. The issue had been argued from the very beginning of the proceedings.6 [13] The fact that Mr Firrell believed a new contract was required is a belief he held at the time. It is submitted that he or Sovereign deliberately, wilfully and /or knowingly mislead the Tribunal. There is no evidence that they did so. Certainly, no evidence they did so with any intention to mislead. There is no admission or concession by them that what they were asserting they believed not to be true. 6 Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4 [9], [12], and [19] -- 3 of 4 -- 4 [14] Mr Edwards was ultimately unsuccessful at the hearing and in both appeals in which the issue of whether a new contract was required was raised and argued. There is no basis for reopening the costs orders. The application is refused. -- 4 of 4 --