Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284

CITATION: Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284 PARTIES: Frances Joy Avenell (Applicant) v Oxygen Pools Pty Ltd (First Respondent) and Andrew Wayne Ross (Second Respondent) APPLICATION NUMBER: BD257-08 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 21 June 2010 DELIVERED AT: Brisbane ORDERS MADE: That the questions of law referred by order 14 April 2010 be answered: (a) the CCT order of 30 March 2009 was a final order; (b) the order may be capable of renewal under s 133 of the Queensland Civil and Administrative Tribunal Act 2009 but is in any event renewable by the operation of s 96 of the Commercial and Consumer 2003 and s 252(3) of the Queensland Civil and Administrative Tribunal Act 2009; (c) in any event, QCAT has power to order and does order that the sum of $9,450 paid into the Trust Account of the Commercial and Consumer Tribunal by the applicant on 8 December 2008 be paid out to her. -- 1 of 6 -- 2 CATCHWORDS : JURISDICTION - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – REFERRAL OF QUESTION OF LAW TO PRESIDENT – APPLICATION FOR RENEWAL – ORDER UNDER COMMERCIAL AND CONSUMER TRIBUNAL ACT – where applicant commenced proceedings under the Commercial and Consumer Tribunal (CCT) – where parties signed a Mediation Agreement – where the CCT made order by consent – where Respondents incapable of meeting the terms of that order – where applicant applied to CCT to determine that order prior to commencement of the Queensland Civil and Administrative Tribunal (QCAT) – whether order of the CCT was final decision – whether order of CCT capable of renewal under QCAT Act – whether appropriate case for renewal Commercial and Consumer Tribunal Act 2003 (repealed), s 96 Queensland Civil and Administrative Tribunal Act 2009, s 117, s 133, s 134(2)(b), s 244, s 245, s 252(1) and (3), s 256 Redprince Pty Ltd v Robert Johnson [2008] QCCTB 83 APPEARANCES and REPRESENTATION (if any): Applicant Respondent REASONS FOR DECISION [1] In 2008 Ms Avenell began proceedings in the Commercial and Consumer Tribunal (CCT) for an order that the respondents properly complete a swimming pool they had agreed to construct at her home at Draper, and for associated relief. The claim was defended but, after an ADR process in the CCT, apparently settled in terms recorded in a signed Mediation Agreement dated 27 November 2008. [2] On 4 December 2008 the chairperson of the CCT made an order by consent which reflected the settlement terms – that Ms Avenell pay the sum of $9,450 into the CCT trust account by 3 December 2008, and that the respondents perform certain rectification work by 23 December 2008, whereupon the funds held in the trust account could be released to them. [3] The respondents allegedly failed to complete the work by the stipulated date and were later called back before the CCT in effect to show cause -- 2 of 6 -- 3 why their building licences should not be suspended or cancelled. On 13 January 2009 a Member of the CCT conducted a further hearing and varied the previous consent order by extending the time for the respondents to perform the rectification work until 27 January 2009. Oddly, that order is dated 30 March 2009. In any event, Ms Avenell alleges the respondents have never complied with the order and the work has never been performed. [4] After 1 December 2009 the CCT was subsumed into QCAT at which time the CCT file was still alive and, its records show, it was still seeking information about whether the rectification work had been performed and what should happen to the funds it held in trust. [5] After QCAT commenced operations the matter was listed for review and, on 14 April 2010 a QCAT Senior Member ordered that, in relation to the order made by the CCT, the following questions of law be referred to the President pursuant to s 116 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act): (a) Is the order a final order? (b) If yes, can the order be renewed pursuant to s 133 of the QCAT Act if the respondents have failed to comply with paragraph 1 of the order to day? (c) If no, what is the Tribunal’s power to take any action with respect to the order given that it arises from a Mediation Agreement? [6] On 16 April 2010, I ordered that the parties file and serve written submissions with respect to those questions. Neither respondent has filed anything. The explanation appears in material filed by the solicitors now acting for Ms Avenell: the first respondent has been placed in liquidation and failed to renew its building licence with the Queensland Building Services Authority in July 2009; the second respondent does not, it appears, hold any necessary licence and cannot, accordingly, undertake building works. [7] Since the order of 16 April solicitors for Ms Avenell have also filed an application for legal representation; and, an application under s 133 of the QCAT Act for renewal of the earlier CCT order. The application for legal representation should be allowed: the matter involves, as the submissions from Ms Avenell’s solicitors show, some complex questions of law: QCAT Act, s 43(3)(b). [8] The CCT order of 30 March 20091 was, like so many made in that tribunal, apparently intended to finalise a proceeding before it but, on its face, still required the ongoing involvement of the parties and the tribunal, and a measure of supervision. It directed that the respondents do certain work and in the interim the CCT volunteered, in effect, to act as stakeholder for funds paid into its trust account by the applicant. Each 1 Wrongly referred to in the QCAT decision of 14 April 2010 as 30 March 2007. -- 3 of 6 -- 4 party was given liberty to apply on seven days notice in writing for the CCT registry, and to the other party. It contemplated the occurrence of further events before the proceeding actually finished but, if they occurred, no further order would be necessary. [9] In its transitional provisions, addressing the disbandment of previous tribunals and their absorption into QCAT, the QCAT Act distinguishes between the final decisions of former tribunals, and pending proceedings before them at the time they ceased to operate. [10] A pending proceeding, defined in s 245 of the QCAT Act, is an existing proceeding in the former Tribunal which that Tribunal had not begun to hear, or had begun to hear but in which it had not started to consider the evidence for the purpose of making its final decision. Those proceedings are taken to be proceedings before QCAT, with which it has jurisdiction to deal: s 256. [11] The events within the CCT recited earlier signify that the proceedings before it cannot be described as falling within s 245: the CCT had accepted the terms of a Mediation Agreement between the parties, and made an order. The need for a hearing had been avoided, and it was unnecessary to consider the evidence. [12] The proceeding had, rather, ended by agreement between the parties and it only remained for them to do the things which would give effect to that agreement. The following order falls more comfortably within the definition of final decision in s 244 of the QCAT Act – namely, a decision that ‘finally decides the matters the subject of the proceeding’. [13] The notion that an order might be a ‘final’ order but still require some further consideration by a tribunal and, perhaps, the making of further orders is contemplated by s 252(3) of the QCAT Act, which addresses the very circumstance that has arisen here – namely, that a person has ‘…applied to a former tribunal to deal with a final decision of the former tribunal and the application has not been heard’. [14] Correspondence in the CCT file shows that it wrote to Ms Avenell on 1 April 2009 seeking information about the status of the rectification work and whether or not the parties would consent to the funds still held in the CCT trust account being distributed. [15] On 21 May 2009, Ms Avenell replied, through her sister, asking that the CCT retain the money in trust until the matter was resolved to her satisfaction. That had not occurred, and neither the CCT nor any of the parties had taken any further step, at the advent of QCAT on 1 December 2009. It follows that Ms Avenell had, in effect, applied to the CCT to deal with its final decision but that application had not been determined at the commencement of QCAT. [16] There are decisions of the former Tribunal suggesting that it took the same view of consent orders made after a Mediation Agreement – that is, -- 4 of 6 -- 5 that they were intended to be final orders. In Redprince Pty Ltd v Robert Johnson [2008] QCCTB 83, the respondent sought to reopen a consent order the CCT had made some four months earlier. As the reasons for that decision show, it was common ground that the order reflected the terms of a Mediation Agreement entered into by the parties. The order required that the applicant carry out certain rectification works which were then to be inspected and, if satisfactory, certified by an inspector from the Queensland Building Services Authority. [17] A dispute arose about the nature of the certification and the applicant sought to reopen the CCT order under s 96 of the Commercial and Consumer Tribunal Act 2003, which allowed a party to apply for a reopening if problems arose with the interpretation or implementation of a CCT order. At paragraph 10 the learned CCT member said: ‘Notwithstanding that the Tribunal has made a final order in proceedings, the Tribunal remains empowered to entertain an application under section 96, and to re-open an order for that purpose. To that extent at least, the Tribunal is not, as the applicant submitted, entirely functus officio.’ [18] Under s 252 of the QCAT Act final orders of former tribunals are taken to be final decisions of QCAT. Section 133 of the QCAT Act permits an application for renewal if it is not possible for the Tribunal’s final decision in the proceeding to be complied with, or there are problems with interpreting, implementing or enforcing the Tribunal’s final decision in a proceeding. That is the application now brought by the solicitors for Ms Avenell. Under s 134 QCAT may make any other appropriate final decision that it could have made under the QCAT Act when the proceeding was originally decided: s 134(2)(b). [19] Although the Commercial and Consumer Tribunal Act 2003 was repealed under s 243 of the QCAT Act, its decisions remain effective, for the reasons explained earlier. The similar phrasing used in s 133 of the QCAT Act and s 96 of the Commercial and Consumer Tribunal Act point strongly to the conclusion that the legislature intended that the sorts of problems which might be generated by these kinds of CCT orders should, if necessary, be capable of renewal and, in effect, repair if their operation was thwarted by events which arose after they were made. [20] That is, inescapably, an accurate description of what has happened here. The evidence establishes that there is no prospect of the respondents ever completing the rectification work required under the CCT order of 30 March 2009. [21] Section 96 of the Commercial and Consumer Tribunal Act is relevant for another purpose: under s 252(3) of the QCAT Act if a person has applied to a former tribunal to deal with one of its final decisions and that application had not been heard when QCAT commenced, this tribunal is limited to the functions of the former tribunal. Section 96 allows the relief sought here. -- 5 of 6 -- 6 [22] Notwithstanding s 252(3) it is also arguable that the operation of s 252(1), which deems the final orders of former tribunals to be final orders of QCAT, and s 133 (1) (which permits QCAT’s final orders to be renewed) has, here, the same result. [23] The QCAT order of 14 April 2010 incorrectly refers to s 116 of the QCAT Act. It is s117 which allows a presiding member to refer a question of law to the President, as occurred here. The error is immaterial. For the reasons explored above the CCT order was a final order and question (a) should be answered affirmatively. [24] As to (b), if the order cannot be renewed under s 133 of the QCAT Act it can nevertheless be revisited, pursuant to s 252(3), under s 96 of the former legislation. Section 61 of the QCAT Act gives this tribunal broad powers to give relief from procedural requirements and the fact that question (b) is not couched in terms referrable to s 96 should not prevent a remedy where one is, obviously, appropriate2 . [25] In any event question (c) contemplates a negative answer to (b), but an alternative remedy. That is what should occur here. The CCT order should be replaced by a new order, addressing the new circumstances. [26] The terms of the renewed order sought on Ms Avenell’s behalf are that the moneys she paid into the CCT trust account be released to her (thereby enabling her to use those funds to engage another builder to complete the rectification work). In light of the evidence that the former order cannot now be performed, that is appropriate. 2 And, see, ss 3(b) and 4(c) -- 6 of 6 --