Braycroft Pty Ltd v Interlink Developments Pty Ltd (formerly Urban Homes Pty Ltd) [2018] QCAT 176

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Braycroft Pty Ltd v Interlink Developments Pty Ltd (formerly Urban Homes Pty Ltd) [2018] QCAT 176 PARTIES: BRAYCROFT PTY LTD (applicant) v INTERLINK DEVELOPMENTS PTY LTD (FORMERLY URBAN HOMES PTY LTD) (respondent) APPLICATION NO/S: BDL313-17 MATTER TYPE: Building matters DELIVERED ON: 4 May 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: The parties have leave to be legally represented in the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – GENERALLY – where leave for legal representation sought – where proceeding is likely to contain complex questions of fact and law – where both parties granted leave for legal representation Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 32, s 43(1), s 43(2)(b)(iv), s 43(3)(b), s 43(4)(b) REPRESENTATION: Applicant: Self-represented Respondent: McCarthy Durie Lawyers APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 4 May 2018 the Tribunal ordered that the parties have leave to be legally represented in the proceeding. -- 1 of 5 -- 2 [2] In 2014 Braycroft entered into a contract with Interlink for the construction by Interlink of a house. A dispute arose between the parties. In December 2017, Braycroft filed an Application for domestic building disputes. Braycroft sets out in the Application the grounds upon which it relies to support its claim which include: (a) Interlink delayed in commencing the building work; (b) Interlink delayed in progressing the build to the practical completion stage; (c) Interlink issued false progress claims in the course of the build; (d) Interlink failed to complete incomplete building work for which it had been paid; (e) Interlink failed to rectify defective building work and that its obstructive conduct caused substantial delay to the rectification work being carried out. [3] In the Application, Braycroft seeks payment by Interlink of $272,181.57. Whilst it is not entirely clear from the Application, the amount claimed by Braycroft appears to include amounts Braycroft says it paid to Interlink for works never completed, liquidated damages, an amount ‘paid by the Applicant arising from the Respondent’s default’ which is not otherwise particularised and ‘general damages’ calculated in accordance with a document attached to the Application relating to expenses associated with a loan, rates, land tax, and ‘power and maintenance’. [4] Directions were made after the filing of the Application for Interlink to file a response. Rather than filing a response, the solicitors for Interlink forwarded to the Tribunal a copy of correspondence sent to Braycroft referring to: … the Orders sought are embarrassing, poorly particularised, and without any legal basis, and duplicitous, save with respect to possibly Orders numbered 4 and 5 of that pleading.1 [5] Directions were also made listing the matter for a compulsory conference. The conference was adjourned and the matter listed for a directions hearing on 21 March 2018. At the directions hearing, directions were made by the Tribunal which included Braycroft filing and serving a schedule in the nature of a Scott schedule particularising the details of the alleged incomplete and defective work and the amount claimed by Braycroft. Interlink was required to respond to the schedule and the matter was listed for a compulsory conference. [6] On 5 April 2018 Interlink filed an application for leave to be represented. In support of its application, Interlink relied upon an affidavit by Mr Maloney, the sole director of the company. Mr Maloney says that Braycroft’s claim arises out of a building contract entered into in 2014 and subsequent building work. He says that a number of ‘legal steps’ have occurred subsequently during which time Interlink has been legally represented and include: (a) Responding to two (2) directions to rectify by the Queensland Building and Construction Commission (QBCC); 1 Correspondence from respondent to applicant dated 18 January 2018. -- 2 of 5 -- 3 (b) Commencing an adjudication application against Braycroft; (c) Responding to an application by Braycroft to review a decision by the QBCC that Interlink had properly terminated the building contract. [7] Mr Maloney attaches to his affidavit a copy of his solicitors’ correspondence to Interlink in relation to which he says raises ‘a number of legal issues as appears in the contents of (the letter) all of which would not have been known to the Respondent.’ I understand Mr Maloney to be saying that if not for advice given by his solicitors, Mr Maloney would not have been aware of the existence of the issues referred to in the letter. [8] Mr Maloney says that his health is poor and being required to respond to the use by Braycroft of the QBCC and the tribunal is burdensome to him. He says that Interlink will be prejudiced by its being required to respond to the claim by Braycroft and participate in the proceeding in the absence of legal representation. [9] Braycroft opposes the application for leave to be represented. It says that Mr Maloney is attempting to avoid being questioned in the proceeding and says that it is the applicant’s right to closely question Mr Maloney about his and Interlink’s many failings and unacceptable conduct. Interlink rejects Mr Maloney’s assertions about his state of health. Braycroft says that Interlink’s position is ‘of its own making … and must face the consequences of its conduct.’ [10] Parties should represent themselves in the tribunal unless the interests of justice require otherwise.2 A person may be represented if the tribunal gives leave.3 A party may not be represented by a person who is not an Australian legal practitioner or government legal officer unless the tribunal is satisfied the person is an appropriate person to represent the party.4 In deciding whether to give a party leave to be represented the tribunal may consider a number of circumstances as supporting the giving of leave including that the proceeding is likely to involve complex questions of fact and law.5 [11] As I have observed, in its Application, the amount claimed by Braycroft is in the order of $272,000. In response to the directions for the filing of the Scott schedule, the claim by Braycroft has increased to an amount in the order of $458,000. In the schedule, Braycroft articulates the grounds of its claim in quite a different way to that set out in the Application and appears to frame its claim on alternative bases: the cost incurred by Braycroft in rectifying defective work and completing incomplete work, or alternatively restricting Interlink to an entitlement to recover for building work ‘competently performed’. In the Scott schedule, Braycroft also maintains its claim for liquidated damages, appears to reframe the original claim for general damages as a claim for consequential damages and introduces a claim for exemplary damages. [12] Braycroft has filed, with the Scott schedule, two folders of material containing a large number of documents said to be relevant to its claim. These documents include reports by a building expert upon which Braycroft relies in respect of what it says is defective and/or incomplete building work. It appears that, subsequent to the preparation of the 2 QCAT Act, s 43(1). 3 QCAT Act, s 43(2)(b)(iv). 4 QCAT Act, s 43(4)(b). 5 QCAT Act, s 43(3)(b). -- 3 of 5 -- 4 building reports, the QBCC issued to Interlink a direction to rectify. Braycroft says in the Application that ‘some’ defects were rectified by Interlink following a direction from the QBCC. In the Scott schedule Braycroft identifies in excess of 60 items of what it says is incomplete and defective building work. It seems likely that further expert evidence will be required to identify whether and to what extent the defective and incomplete work referred to in the expert reports remains to be rectified or completed. [13] I am satisfied that the matter is likely to involve complex questions of fact and law and that it is in the interests of justice that the application for representation be granted. It is clear that there are a number of significant issues and questions of fact and law, necessarily involving some complexity, which will be required to be decided by the tribunal. There are issues raised as to the termination of the contract. Factual and legal issues relating to the issuing of progress payment claims and the entitlement to do so will be required to be determined. Whether building work performed by Interlink is defective or incomplete must be determined. This latter issue appears likely to involve expert evidence. The entitlement of Braycroft to damages must be determined including any entitlement to what is claimed as exemplary damages. [14] It seems, from its submissions, that the basis upon which Braycroft objects to Interlink being legally represented is a concern that the director of Interlink, Mr Maloney, will thereby avoid scrutiny in the proceeding. Braycroft’s submission is misconceived. Legal representation is not a shield behind which a party may hide. There is nothing before me to suggest that the matter will proceed in other than the orthodox fashion to a hearing in the tribunal should an earlier resolution not be reached. This will require the parties to file and serve their statements of evidence. Presumably this evidence will include a statement of evidence by Mr Maloney, who is the sole director of Interlink. At the hearing, Braycroft, by its representative, will have the opportunity to cross examine Mr Maloney and any other witnesses Interlink seeks to rely upon. Braycroft’s submission that Interlink’s solicitor cannot ‘undertake Mr Maloney’s role’ in respect of the determination of the factual issues in dispute is also misconceived and fundamentally misunderstands the role of a legal representative. The legal representative does not stand in the shoes of the party. The legal representative represents the party and is required to act honestly and fairly in their client’s best interests and to act with skill and diligence, reasonable promptness and courtesy. In proceedings in the tribunal, where a party is legally represented, the solicitor’s duty to the tribunal and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. In discharging this duty, legal practitioners, by assisting in identifying and narrowing the issues in dispute and identifying the questions of fact and law to be decided in a proceeding, often play an important role in ensuring that matters are dealt with in accordance with the objects and functions set out in the QCAT Act. [15] I am satisfied, in exercising my discretion, that legal representation in these proceedings is likely to assist the tribunal to determine the issues in dispute in a way consistent with the objects and functions set out in the QCAT Act6 through, inter alia, the articulation and clarification of the issues and the questions of fact and law the tribunal will be required to decide. 6 QCAT Act, ss 3 and 4. -- 4 of 5 -- 5 [16] It is appropriate, in granting leave for Interlink to be legally represented, that leave also be given to Braycroft to be legally represented. -- 5 of 5 --