Boyes & Anor v Maddisson & Anor [2021] QCAT 423

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Michelle Boyes & Anor v Graham Maddisson & Anor [2021] QCAT 423 PARTIES: MICHELLE BOYES IAN BOYES (applicant) v GRAHAM MADDISSON MADDISSON CONSTRUCTION AND DESIGN PTY LTD (respondent) APPLICATION NO/S: BDL064-19 MATTER TYPE: Building matters DELIVERED ON: 8 December 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: The application for domestic building dispute filed on 22 February 2019 is dismissed. It is declared that the applicants and respondents entered into terms of settlement dated 10 September 2019 (the Settlement Agreement) on the basis that the proceeding BDL064-19 is resolved and the Settlement Agreement is binding as a contract, on the following terms: (a) The respondents agree to pay $23,950.00 to the applicants no later than 10 March 2020 (the settlement sum); and (b) The respondents agree to provide to the applicants any certificates in respect of the work performed under or in respect of the original building contract at [the property] within 14 days of signing the Settlement Agreement (the certificates). CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where parties entered into settlement agreement – where party seeks order enforcing settlement agreement – whether -- 1 of 7 -- 2 settlement agreement amounted to an accord and satisfaction of the rights under the original contract – where there is no final order – whether tribunal has jurisdiction to make orders PROCEDURE – STATE AND TERRITORY COURTS – OTHER MATTERS – where parties entered into settlement agreement – whether the tribunal has the power to determine the matter under the Queensland Building and Construction Commission Act 1991 (Qld) – where the Tribunal initiates an application to dismiss under s 47 of the Queensland Civil and Administration Tribunal Act 2009 (Qld) and to make a declaration under s 60 Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 60, s 84, s 131, s 132 Azad v Ljubas [2007] QDC 018 McDermott v Black (1940) 63 CLR 161 McEwen v Barker Builders Pty Ltd [2010] QCATA 49 Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The applicants seek an order from the Tribunal enforcing a settlement agreement signed by the applicants and respondents at a compulsory conference that proceeded before this Tribunal on 10 September 2019.1 [2] By way of background, the applicants engaged the respondents to perform building work. The parties signed a HIA new home construction contract in or about December 2016 (‘the original building contract’). [3] A dispute followed in relation to the performance of the work by the respondent builder, including claims by the applicant home owners for alleged incomplete and defective items of building work. 1 Applicants’ submissions filed 13 April 2021. -- 2 of 7 -- 3 [4] The applicants filed an application for a domestic building dispute in the Tribunal on 22 February 2019 (matter BDL064-19) and the respondents filed a counter- application on 10 September 2019. [5] At a compulsory conference before the Tribunal on 10 September 2019 the parties signed an agreement (the Settlement Agreement). [6] The Tribunal Member chairing the compulsory conference did not make any order or direction in relation to matter BDL064-19. [7] Following the compulsory conference the Tribunal made a number of directions on 8 November 2019, 23 January 2020 and 19 March 2020, respectively, listing the matter for a directions hearing on a date and time to be advised. [8] On 15 May 2020, the Tribunal directed that the respondents file a notice of withdrawal in respect of their counter-application or give the applicants notice that they intend to proceed with the claim by ‘4:00pm on 29 May 2020’ and failing compliance the counter-application will be dismissed. [9] On 8 July 2020, the Tribunal dismissed the respondents’ counter-application.2 [10] On 9 November 2020, the applicants applied to the Tribunal for an order reflecting the terms of the Settlement Agreement stating that the Magistrates Court will not register it (the agreement) without an order from the Tribunal.3 [11] On 13 November 2020, the Tribunal dismissed the applicants’ application and listed the matter for a directions hearing on a date and time to be advised.4 [12] On 18 March 2021, the Tribunal directed that both parties file further material and directed that unless any party requests an oral hearing by ‘4:00pm on 20 May 2021’, the matter BDL064-19 will be determined on the papers and without an oral hearing after ‘4:00pm on 20 May 2021’. [13] The applicants now seek an order from the Tribunal reflecting the terms of the Settlement Agreement. In their written submission filed on 13 April 2021, the applicants state, amongst other things: We seek an order for the signed agreement by Mr Maddisson, to have the certificates as well as financial settlement paid to Michelle and Ian Boyes. [14] The applicants seek a further order from the Tribunal that the respondents pay additional costs for the following:5 (a) Payment of $5,119.80 for certification of the home driveway; (b) Payment of $1,476.63 and $990.00 in relation to weather proofing; (c) Payment of $1,414.00 paid for new plans as per the specifications; (d) The difference of $1,249.00 for the ‘home warranty’; and 2 Decision made by Senior Member Brown dated 8 July 2020. 3 Application for miscellaneous matters filed 9 November 2020. 4 Decision made by Senior Member Brown dated 13 November 2020. 5 See material filed by the applicants on 13 April 2021. -- 3 of 7 -- 4 (e) An order for a ‘financial settlement as QCAT deems acceptable’ for the stress and time ‘we as a family have had to endure in order to get out home finished’. [15] On 6 December 2021, the matter was listed before me for a decision on the papers. [16] In this matter, I am satisfied that the parties have been given an opportunity to comply with the Tribunal’s Directions dated 18 March 2021. Neither party has requested an oral hearing. [17] More importantly, I am satisfied that the respondents have failed to provide a reasonable excuse for its non-compliance with the Tribunal’s Directions and that it is appropriate to proceed to determine the matter on the papers based on the material filed by the parties. What is the effect of the settlement agreement? [18] The issue to be determined is whether the Settlement Agreement amounted to an accord and satisfaction of the respective parties rights and obligations arising under the original building contract.6 In other words, whether the respective parties were released from their obligations under the original building contract when they signed the Settlement Agreement. [19] The Settlement Agreement is clear on its terms such that the parties intended it to be in full and final satisfaction of the proceeding BDL064-19. The agreement states that ‘the parties agree to resolve the proceeding’ on certain terms. The respondent builder is not required to perform any further building work for the applicants. The respondents are required to do the following: (a) Pay the amount of $23,950.00 to the applicants no later than 10 March 2020 (settlement sum); (b) Provide to the applicants any certificates in respect of the work performed under or in respect of the contract at [the property], the subject of the proceeding within 14 days of signing the agreement (the certificates). [20] The Settlement Agreement is dated, signed by the parties and witnessed by the Member who chaired the compulsory conference. The settlement agreement further provides: Upon payment of the settlement sum and conditional on receipt of the certificates [the applicants] agree to file a withdrawal of the proceeding and the parties agree to release each other from all claims against each other in respect of the work under or in respect of the contract except for any structural defects in the work performed by [the respondents]. [21] In the absence of any evidence to the contrary, I am satisfied that the Settlement Agreement is binding on the parties who freely participated in the compulsory conference on 10 September 2019. [22] In McEwen v Barker Builders Pty Ltd,7 the President of the Tribunal said and I agree that an agreement to settle an action takes effect as a contract and is binding. The President said (footnotes omitted): 6 McDermott v Black (1940) 63 CLR 161 at 183. 7 [2010] QCATA 49. -- 4 of 7 -- 5 An agreement to settle an action normally takes effect as a contract, and is binding (subject to the principles under which a contract can be set aside). The prima facie position is that parties who freely and lawfully enter into an agreement are bound by its terms unless one party can point to the existence of vitiating circumstances which mean the contract should be set aside…8 [23] In the present matter, the applicants seek to enforce the Settlement Agreement that expressly provides that the respondents will pay the applicants the amount of $23,950 by 10 March 2020 as well as provide to the applicants a number of certificates within 14 days of signing the agreement. [24] It is trite law that the Tribunal does not have any enforcement powers. Relevantly, s 131 of the QCAT Act deals with enforcement of monetary decisions and provides, amongst other things, that a person may enforce the final decision by filing a copy of the decision in the registry of a court of competent jurisdiction. Under s 132 of the QCAT Act a person may enforce the final decision (that is not a monetary decision) by filing a copy of the decision in the registry of the relevant court. [25] Here, there is no final decision in relation to matter BDL064-19. As discussed above, the parties have, however, compromised their rights under the original building contract by entering into the Settlement Agreement. It is clear from the applicants’ written submissions filed in matter BDL064-19 that despite the respondents failure to pay the settlement sum and produce the certificates in compliance with the agreement they seek an order that gives effect to the Settlement Agreement. [26] Further to that, the record reflects that the applicants are unable to enforce the Settlement Agreement without a final decision from the Tribunal. Relevantly, by email dated 26 May 2021, the applicants state the following: …we still have not had anything from [the respondents], hopefully we get the order from the signed settlement agreement that he had not abided to. [27] The relevant sections of the QCAT Act applicable for settlement of matters in compulsory conferences is set out in s 84. Relevantly, s 84 provides that if a settlement is reached by the parties the person presiding at the compulsory conference may record the terms of settlement in writing and make orders necessary to give effect to the settlement. Subsection (3) provides that this Act applies to an order made under subsection (2) as if the compulsory conference were a proceeding before the tribunal and the order were an order made by the tribunal constituted for the proceeding. [28] The Member chairing the compulsory conference did not make an order giving effect to the terms of settlement recorded in writing. As discussed above, the Tribunal made further directions in relation to matter BDL064-19 including a direction that the matter be determined on the papers. [29] I have found that the parties resolved the matter BDL064-19 by signing the Settlement Agreement that can be enforced by the parties as a separate contract. [30] The unchallenged evidence of the applicant home owners is that the respondents failed to comply with its contractual obligations under the Settlement Agreement. The applicants submit and I accept that the respondents have failed to pay the amount of $23,950.00 by 10 March 2020 and deliver certificates as provided in the agreement. 8 McEwen v Barker Builders Pty Ltd [2010] QCATA 49, [5]. -- 5 of 7 -- 6 As I have said, despite the respondent’s breach or failure to fulfil the terms of the Settlement Agreement, the applicants now seek to enforce it. Having made that election, I am satisfied that it is desirable in this matter to dismiss the application for domestic building dispute filed on 22 February 2019 using the Tribunal’s power under s 47 of the QCAT Act. [31] Section 47 of the QCAT Act provides that the Tribunal may order the proceeding or part of the proceeding be dismissed or struck out if the Tribunal considers a proceeding or part of a proceeding is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process. The Tribunal may act under subsection (2) on the application of a party to the proceeding or on the Tribunal’s own initiative.9 [32] I have found that the parties agreed to resolve the matter BDL064-19 during a compulsory conference when the parties signed the Settlement Agreement. An agreement to settle an action takes effect as a contract and is binding as a contract subject to the ordinary rules about circumstances under which a contract can be set aside.10 [33] The Tribunal only has the powers as conferred on it by the QCAT Act and any enabling Act. The obligation falls upon the Tribunal to determine whether it has jurisdiction.11 [34] The applicants provide no legal basis upon which the additional costs that they now seek to claim for certification, waterproofing, plans, home warranty and stress should be awarded in this matter. Indeed, for reasons already explained, there is no power to award the applicants the amounts claimed as additional costs under s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) because the building dispute has been resolved. The applicants’ claim for additional costs is refused. [35] Although the respondent has failed to pay the monies and deliver the certificates to the applicants as provided under the Settlement Agreement, the applicants have elected to proceed with the agreement and seek an order from the Tribunal that the respondent abide by the agreement. In such circumstances there is no longer a building dispute before the Tribunal for the which the Tribunal may exercise its powers under the QBCC Act. It is appropriate to dismiss the proceeding BDL064-19 under s 47 of the QCAT Act because the proceeding is lacking in substance. The application for domestic building dispute filed on 22 February 2019 is dismissed. [36] I am satisfied that it is appropriate to make a declaration under s 60 of the QCAT Act in relation to the existence of the Settlement Agreement that I have found is binding as a contract. Relevantly, s 60 provides that the Tribunal may make a declaration about a matter in a proceeding in addition to an order it could make about the matter. A declaration under s 60(1) is binding on the parties to the proceeding mentioned in the declaration. It is, of course, a matter for the applicants as to whether they take any steps to enforce the Tribunal’s final order in this matter in a court of competent jurisdiction. The Tribunal’s final order will reflect the declaration made as follows: 9 QCAT Act, s 47(3). 10 Azad v Ljubas [2007] QDC 018, [22]. 11 Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98, [45]. -- 6 of 7 -- 7 (a) It is declared that the applicants and the respondents entered into terms of settlement dated 10 September 2019 (the Settlement Agreement) on the basis that the proceeding BDL064-19 is resolved and the Settlement Agreement is binding as a contract, on the following terms: (i) The respondents agree to pay $23,950.00 to the applicants no later than 10 March 2020 (the settlement sum); and (ii) The respondents agree to provide to the applicants any certificates in respect of the work performed under or in respect of the original building contract at [the property] within 14 days of signing the Settlement Agreement (the certificates). [37] I order accordingly. -- 7 of 7 --