Cullen v Laurie Kowald Home Maintenance and Carpentry Services [2013] QCATA 95

CITATION: Cullen v Laurie Kowald Home Maintenance and Carpentry Services [2013] QCATA 95 PARTIES: Mr and Mrs Kevin and Ursula Cullen (Applicant/Appellant) V Laurie Kowald Home Maintenance and Carpentry Services (Respondent) APPLICATION NUMBER: APL203 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 18 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: MINOR CIVIL DISPUTE – where decision in default – where no application for reopening – where application for appeal not served for eight months – whether extension of time should be granted – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 ss 3(b), 45, 48, 137 and 138 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232. Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr and Mrs Cullen engaged Laurie Kowald Home Maintenance and Carpentry Services to build their house. Mr Kowald rendered invoices which Mr and Mrs Cullen did not pay. Mr Kowald filed an application in the tribunal for payment. His solicitors served the application on Mr and Mrs Cullen by serving their solicitors, who acknowledged service. Mr and Mrs Cullen did not file a response so, on 28 October 2011, Mr Kowald obtained a decision in default of a response. [2] Mr and Mrs Cullen filed an application for leave to appeal on 23 November 2011 but they did not serve it on Mr Kowald until 7 August 2012. They have asked the tribunal to extend time but it is not clear what “time” the tribunal is supposed to extend. [3] Mr and Mrs Cullen also want to appeal the registrar’s decision. They say that they did not receive any notice of the claim so they could not file any response. They say that Mr Kowald’s building work is defective and they have made submissions about the outstanding invoices. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [5] Mr and Mrs Cullen say that there are a number of events that have delayed their response. Their house was unliveable so they had to live with friends. Because they had no proper address, they did not receive the application. Mr and Mrs Cullen say that they have just had a baby and (Mrs Cullen?) just left work on maternity leave. They have spent all their money rectifying the defects in the house so they could move in before the baby arrived. They need more time to collect relevant information. 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 4 -- 3 [6] The tribunal can extend a time limit fixed by the Queensland Civil and Administrative Tribunal Act 20095 unless that extension would cause prejudice or detriment that cannot be remedied by an order for costs or damages. [7] The tribunal has a mandate to deal with matters quickly.6 The QCAT Act also requires parties to act quickly in any dealing relevant to the proceeding.7 If a party acts in a way that unnecessarily causes disadvantage to another party, the tribunal may strike out the proceeding.8 [8] Mr and Mrs Cullen have not acted quickly. They filed an application for appeal and then sat on it for over eight months. Their personal difficulties do not explain why they did not serve a very important document which, if properly progressed, may have provided them with some relief from their problems. They have not asked for a stay of the registrar’s decision. They did not apply to reopen the decision, which would have been the better course of action. [9] Mr and Mrs Cullen say that the delay was the fault of their solicitor, who did not contact them for instructions. Their solicitor had instructions to accept service of the application. The solicitors received a copy of the application and sent it to Mr and Mrs Cullen by express post. The fault lies with Mr and Mrs Cullen if they had not given their solicitors a forwarding address. I am not persuaded that Mr and Mrs Cullen should be given an indulgence by the tribunal when they have consistently failed to meet their obligations. [10] Mr and Mrs Cullen have filed copies of reports showing that Mr Kowald’s work was defective. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined9. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr and Mrs Cullen have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?10 [11] The evidence will have an important impact on the result of the case. The reports appear to be credible. However, most of the reports were written in 2010, long before Mr Kowald filed his claim so they were reasonably available at the time the registrar made a decision in default. For the reasons I have already given, I am not satisfied with Mr and Mrs Cullen’s explanation for their failure to engage with the tribunal. [12] Mr and Mrs Cullen might have a claim against Mr Kowald for defective building work. My decision in this application does not prevent them from 5 S61. 6 s3(b). 7 s45. 8 s48. 9 ss 137 and 138. 10 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 3 of 4 -- 4 brining that claim to the tribunal in its building jurisdiction. What they want, and they may still achieve, is a hearing about the defects. [13] However, they have not demonstrated that the registrar was in error in giving a decision in default. There is no question of general importance that should be determined by the appeals tribunal. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 4 of 4 --