Evolution Campers v Stocker [2010] QCAT 479

CITATION: Evolution Campers v Stocker [2010] QCAT 479 PARTIES: Matthew Charles Roberts t/as Evolution Campers v Jonathan Charles Stocker & Sandra Louise Stocker APPLICATION NUMBER: 2552/10 (Brisbane Registry Number) 54/10 (Beaudesert Registry Number) 307/10 (Cairns Registry Number) MATTER TYPE: Other minor civil dispute matters HEARING DATE: 28 September 2010 HEARD AT: Brisbane DECISION OF: Adjudicator J. Bertelsen DELIVERED ON: 28 September 2010 DELIVERED AT: Brisbane ORDERS MADE: The application is struck out. CATCHWORDS : S.47 of the Queensland Civil and Administrative Tribunal Act 2009; application struck out; where application is frivolous, vexatious and totally lacking in substance APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: -- 1 of 3 -- REASONS FOR DECISION Application 1. The application filed 25 August 2010 at the Tribunal’s Beaudesert Registry seeks a payment of $17,869.50 the sum said to be payable upon delivery of a Bilby Pop Top Camper on 9 June 2010 at Cairns. The application alleges that there was a promise to pay the day after delivery but such payment was not made. 2. The response to that application filed 9 September 2010 seeks dismissal of the application on the ground that the subject matter of the application had already been dealt with by the Tribunal’s Cairns registry case number 307/10 on 9 August 2010. The response alleges contempt in respect of the orders made 9 August 2010, contravention of the Tribunal’s decision, deliberate fraud and passing of a valueless cheque by deception. The response further alleges that the claim is vexatiously lodged in the knowledge of the subject matter of the application having already been dealt with in Cairns on 9 August 2010. The response finally contends that the Applicant ought to be fined for giving misleading information to the Tribunal. Cairns application 307/10 Applicant – Jonathan Charles Stocker & Sandra Louise Stocker Respondent – Amanda Roberts trading as Evolution Campers and Matthew Roberts trading as Evolution Campers 3. That application filed at the Tribunal’s Cairns registry on 22 June 2010 as a consumer dispute sought refund of monies paid by the Applicants to the Respondents in the sum of $17,869.50 and for the return of the Bilby Pop Top Camper by the Applicants to the Respondents. That application additionally sought cancellation of the contract between the Applicants and the Respondents dated 9 January 2010 and the release from liability for any further payment by the Applicants to the Respondents. By counter claim filed 6 August 2010 the Respondents sought payment of a balance of monies due in terms of the contract in the sum of $17,110.50 and for the forfeiture by the Applicants of the sum of $17,869.50 and return of the Bilby Pop Top Camper to the Respondents. 4. The record discloses that at hearing on 9 August 2010 both Applicants appeared and the Respondent Matthew Roberts appeared. Orders were made as follows: 1. Parties are heard 2. I give judgement in favour of the Applicants 3. I order Respondent to pay the sum of $17,869.50 plus costs of $250, a total of $18,119.50 to the Applicants 4. Upon payment of the judgement sum referred to in paragraph (3) the Applicants are to make available for collection in Cairns the camper trailer registration 864QRZ to the Respondents. -- 2 of 3 -- 5. It is clear from that decision that the contract as between the Applicants and the Respondents has been brought to a close in that the Applicants were to be refunded their deposit of $17,869.50 paid in or about January 2010 and that the camper was to be made available for collection by the Respondents. Moreover the decision makes it abundantly clear at paragraph 2 that the decision was made in favour of the Applicants. 6. There can be no doubt that the subject matter of each application is identical i.e. involving the sale of a Bilby Pop Top Camper, the defective state of that camper at time of delivery, liability for payment of the balance owing upon delivery, the relief sought and granted in respect of the payment of any balance, the refund of the initial payment in exchange for the return of the camper. Conclusions on evidence 7. The subject matter of the Cairns and Beaudesert applications arise out of one and the same dealing or transaction. The Tribunal’s decision of 9 August 2010 at Cairns is clear in that it finally determines all of the issues raised in that application and counter application. 8. The application made by Matthew Roberts at Beaudesert seeks orders identical to the orders sought in the counter application filed by himself and Amanda Roberts at Cairns. 9. Matthew Roberts’ application filed at Beaudesert is a calculated disregard for the Tribunal’s decision made at Cairns on 9 August last and is a blatant and brazen attempt to circumvent the letter and spirit of that decision. Nor can such application be explained by a misunderstanding of the decision made at Cairns on 9 August last. The decision is clear and brings to finality the matters of contention articulated in the application and the counter application. 10. In terms of section 47 of the Queensland Civil and Administrative Tribunal Act 2009 I find that Matthew Roberts application filed at Beaudesert on 25 August 2008 is frivolous, vexatious and totally lacking in substance. The application ought properly be struck out in its entirety. The Tribunal is empowered to and does so on its own initiative. -- 3 of 3 --