D A Radic Pty Ltd t/as David Radic Prestige Homes v Ces Colagrande and Rebecca Colagrande [2016] QCAT 357

CITATION: D A Radic Pty Ltd t/as David Radic Prestige Homes v Ces Colagrande and Rebecca Colagrande [2016] QCAT 357 PARTIES: D A Radic Pty Ltd t/as David Radic Prestige Homes (Applicant) v Ces Colagrande and Rebecca Colagrande (Respondents) APPLICATION NUMBER: REO022-16 MATTER TYPE: Building matters HEARING DATE: 27 September 2016 HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 5 October 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for reopening is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – CLASSIFICATION: FINAL OR INTERLOCUTORY – PARTICULAR CASES – where parties granted leave to be legally represented – where application to reopen decision – where application to reopen can only be made in respect of a final decision of the tribunal – where decision sought to be reopened was interlocutory – application to reopen refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 72(1)(b), s 136, s 138(1), s 140, Schedule 3 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] David Radic Prestige Homes built a home for Mr and Mrs Colagrande. The parties have fallen into dispute. Radic claims that money remains due and owing to it by the Colagrandes. The Colagrandes counter claim on various grounds. An application by the Colgrandes for leave to be legally represented was successful. Radic has applied to reopen that decision. [2] Before dealing with the reopening application by Radic, I will make some brief comments about the dispute between the parties. In May 2014 the Colagrandes entered into a contract with Radic for the construction of a house on the Gold Coast. The dispute is governed by the provisons of the Queensland Building and Construction Commission Act 1991 (Qld) and the Domestic Building Contracts Act 2000 (Qld). The contract price was $2.291 million. A dispute arose between the parties in relation to the final payment under the contract. The Colagrandes made a part payment. Radic reserved its rights to pursue the matter further in the tribunal. [3] Radic filed an application for a domestic building dispute claiming an amount of $53,047.30 including an amount for variations not properly documented. In their response the Colagrandes say that a company, Anti- Ageing Australia Pty Ltd, is a co-owner of the property and a party to the contract and should be joined as a respondent. The Colagrandes say that the final payment they made to Radic was in full and final satisfaction of the issues in dispute and there was no reservation by Radic of its rights to pursue the matter further in the Tribunal. The Colagrandes say that the variations claimed by Radic were not properly documented and that they are entitled to liquidated damages as a result of the failure by Radic to complete the building works in accordance with the time frames set out in the contract. In their counter-application the Colagrandes claim liquidated damages and damages for incomplete works. [4] In support of their application for representation, the Colagrandes referred to a number of grounds upon which they relied to argue that there are complex questions of fact and law to be determined in the proceeding. They say that the Tribunal will be required to determine the respondents’ legal or equitable right to set off money owed by Radic against money claimed by Radic. They also refer to what they say was the resolution of the matter and whether there had been any reservation of rights by Radic. In its submissions, Radic says that the claim is very straightforward and that the Colagrandes are very wealthy and can afford legal representation whereas Radic cannot. [5] In the circumstances, I was persuaded that there were questions of fact and law of sufficient complexity that the interests of justice required the grant of leave to be legally represented. -- 2 of 3 -- 3 [6] A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.1 A reopening ground is defined.2 The proceeding must have been heard and decided by the tribunal before there can be an application to reopen.3 A hearing includes a compulsory conference for a proceeding if the proceeding is decided under s 72(1)(b) QCAT Act. [7] The meaning of “heard and decided” found in s 136, and for the purposes of an application for reopening, is made clear by s 140 QCAT Act. The tribunal may, on an application to reopen, confirm or amend the tribunal’s previous final decision in the proceeding or set aside the tribunal’s previous final decision in the proceeding and substitute a new decision.4 The decision of the tribunal made under s 140(4) is the tribunal’s final decision in the proceeding.5 The proceeding cannot be reopened again.6 [8] “Heard and decided” refers to the final determination of the proceeding. It is only a final decision of the tribunal that can be reopened. An interlocutory decision cannot be reopened. The decision to grant leave to the parties to be legally represented in the proceeding was not a final decision in the proceeding. The decision was an interlocutory one. It cannot be reopened. [9] The appropriate order is that the application for reopening is refused. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138(1). 2 Ibid, Schedule 3. 3 Ibid, s 136. 4 QCAT Act s 140(4). 5 Ibid, s 140(5). 6 Ibid, s 140(6). -- 3 of 3 --