ADG Engineers (Aust) Pty Ltd & Anor v Timuss [2015] QCATA 119

CITATION: ADG Engineers (Aust) Pty Ltd & Anor v Timuss [2015] QCATA 119 PARTIES: ADG Engineers (Aust) Pty Ltd Jones Lang LaSalle (Qld) Pty Ltd (Applicants/Appellants) v Gary Timuss (Respondent) APPLICATION NUMBER: APL163 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 11 August 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed 3. The decision of 13 March 2015 is set aside. 4. ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in support of their application by 25 August 2015 5. Gary Timuss shall file and serve any submissions in response by 9 September 2015. 6. ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in reply by 22 September 2015. 7. The application will be determined on the papers and without an oral hearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – APPLICATION IN A PROCEEDING – where application to strike out – where no submissions with application – where tribunal did not call for submissions – where application dismissed - whether grounds for leave to appeal -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 121 Pickering v McArthur [2005] QCA 294 Chandra v Queensland Building and Construction Commission [2014] QCA 335 APPEARANCES and REPRESENTATION (if any): 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] This is a case where the tribunal’s zeal for an informal and quick decision1 ran headlong into the parties’ desire to follow a procedural path that is more commonly found in a court. The result, sadly, is justice delayed. [2] Gary Timuss owns a unit in Top of the Mark CTS 11751. In 2012, the body corporate engaged Jones Lang LaSalle (Qld) Pty Ltd (JLL) to supervise fire rectification work in the complex at a cost of over $15 million. The scope of works between the body corporate and JLL was based on advice from ADG Engineers (Aust) Pty Ltd. [3] As part of that scope of works, four detectors were installed in Mr Timuss’ unit. The wiring to these detectors was housed in conduit, visible to occupants of the unit. The removal of the old detectors left patches in the ceiling. [4] Mr Timuss found the modifications unsightly. He found out that the work could have been done more aesthetically; the wiring could have been concealed in the ceiling space and the contractor could have installed a multi-criteria detector. Mr Timuss had the work redone to his liking and at his expense. He then claimed those costs – $6,484.50 plus costs - from JLL and ADG. [5] The tribunal listed the dispute for mediation on 17 March 2015. On 9 March 2015, JLL and ADG filed an application to strike out Mr Timuss’ claim. The grounds of the application were simply a restatement of s 47(1) of the QCAT Act: that the claim was frivolous, vexatious or misconceived; that the claim was lacking in substance; or that it was otherwise an abuse of process. The tribunal dismissed the application. [6] JLL and ADG want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.2 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal 1 QCAT Act s 3(b). 2 QCAT Act s 142(3)(a)(i). -- 2 of 4 -- 3 is necessary to correct a substantial injustice to the applicant caused by that error.3 [7] The tribunal determined the application on the papers. That is not an unusual step for the tribunal, although, as the Court of Appeal has noted4, the decision to do so must be informed by the principles of procedural fairness. [8] The tribunal determined the application without calling for submissions from either party. Again, that is not an unusual step for the tribunal. But here is where expectations diverged. JLL and ADG were, perhaps, expecting either an oral hearing or directions for the filing of material. The minor civil disputes jurisdiction does not have the resources for oral hearings of interlocutory applications. It has almost no resources for the triaging of applications. If directions had issued, the application would not have been determined prior to the mediation scheduled for 17 March 2015. [9] The tribunal is used to something more than a bald assertion of the grounds of the application, particularly when lawyers are involved in the drafting. But that does not excuse the tribunal’s handling of the application in a summary way. JLL and ADG were not given natural justice and leave to appeal should be granted. [10] I should note that I have no issue with the recording of oral reasons without notice to the parties. The tribunal made its decision on 13 March 2015. The reasons were given in response to a request for reasons for the decision. Section 121(4) allows the tribunal to give its reasons orally or in writing. That was the process the learned Adjudicator undertook. [11] JLL and ADG also applied for an order for costs in the tribunal below. Clearly, although lawyers were involved, no one had turned their mind to rules 83 or 84 of the QCAT Rules, which limit the costs that a party may recover in a minor civil dispute claim. [12] Because the error below was one of law, the decision of 13 March 2015 is set aside and remitted to the tribunal for a rehearing. I make the following directions: a) ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in support of their application by 25 August 2015 b) Gary Timuss shall file and serve any submissions in response by 9 September 2015. c) ADG Engineers (Aust) Pty Ltd and Jones Lang LaSalle (Qld) Pty Ltd shall file and serve any submissions in reply by 22 September 2015. 3 Pickering v McArthur [2005] QCA 294 at [3]. 4 Chandra v Queensland Building and Construction Commission [2014] QCA 35. -- 3 of 4 -- 4 d) The application will be determined on the papers and without an oral hearing. [13] The irony of this application for leave to appeal is that the hearing of Mr Timuss’ claim was first mentioned on 16 April 2015 and listed for hearing on 16 June 2015. But for this application, the claim could have been heard and determined, at less expense, almost three months before the application to strike out will be determined. If JLL and ADG’s application is unsuccessful, then there will be further delay before the dispute will be finalised. -- 4 of 4 --