AWB Constructions Pty Ltd v Abbott [2010] QCAT 167

CITATION: PARTIES: AWB Constructions Pty Ltd v Abbott [2010] QCAT 167 AWB Constructions Pty Ltd V Mr Anthony Abbott APPLICATION NUMBER: BDL040-09 MATTER TYPE: Building matters HEARD AT: Brisbane DECISION ON THE PAPERS OF: Peta Stilgoe DELIVERED ON: 26 March 2010 DELIVERED AT: Brisbane ORDERS MADE: The respondent’s application to strike out the application allowed. The application filed 16 December 2009 is dismissed. CATCHWORDS : Section 47 Queensland Civil and Administrative Tribunal Act 2010 – frivolous and vexatious – abuse of process – res judicata -- 1 of 4 -- BDL040-09 / Page 2 of 4 REASONS FOR DECISION 1. AWB Constructions Pty Ltd (“AWB Constructions”) has brought an application claiming $222,067.98 due and owing under a “costs plus” contract signed on 26 October 2006. 2. Mr Abbott has brought an application to strike out that application on the grounds that: a) The application is vexatious and an abuse of process. b) This dispute has already been determined by the Commercial and Consumer Tribunal and, therefore, this tribunal has no jurisdiction. c) To the extent that a dispute between the parties remains before the tribunal, it has been stayed by the order of Ms Schafer on 24 July 2009. d) The application has been filed for the sole purpose of frustrating Mr Abbott’s ability to proceed with a claim against the statutory insurance fund. 3. AWB Constructions has not filed any submissions in response to Mr Abbott’s application. 4. On 19 November 2008, Adam Bracey as first applicant, and AWB Constructions as second applicant filed an application in the Commercial and Consumer Tribunal claiming $222,067.98 from Mr Abbott. The relevant facts set out in that application were: a) The work was done at a property at a given address. b) The parties entered into a “costs plus” contract on 26 October 2006. c) The agreed sum was $475,010.24. d) The “builder” issued claims totalling $660,874.19. e) Mr Abbott paid $438,806.21. 5. Mr Abbott filed a defence and counterclaim. 6. The applicants failed to comply with three orders of the Commercial and Consumer Tribunal which required them to file material in support of their claim. On 30 April 2009, the Commercial and Consumer Tribunal dismissed the application. It is implicit, by reference to an earlier order, that the tribunal dismissed the applicants’ claim because of their failure to comply with orders. 7. On 1 June 2009, the Commercial and Consumer Tribunal ordered that Mr Abbott’s counterclaim proceed and made provisions for the filing of a defence to the counterclaim. -- 2 of 4 -- BDL040-09 / Page 3 of 4 8. On 24 July 2009, the Commercial and Consumer Tribunal stayed the application (insofar as it existed as Mr Abbott’s counterclaim) pending further advice from Mr Abbott. 9. In the application now before the tribunal AWB Constructions asserts: a) The parties entered into a “costs plus” contract on 26 October 2006. b) The agreed sum was $475,010.24. c) Mr Abbott paid $438,806.21. d) The amount due is $222,067.98. 10. Mr Abbott’s address for service in this proceeding is the address identified in the earlier proceedings as the construction site. 11. There is some doubt as to whether the doctrine of “res judicata” applies to tribunals. I do not have to decide that issue here as there is clear authority in Mango Boulevard –v- Spencer1 that “A judgment or order dismissing proceedings for want of prosecution, being interlocutory in nature, is not a decision on the merits and does not give rise to a res judicata”.2 The decision of the Commercial and Consumer Tribunal was not a decision taken by an examination of the facts. It cannot, of itself, prevent AWB Constructions from re-litigating the issues. 12. Section 47 of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) allows the tribunal to dismiss or strike out a proceeding if it considers the proceeding to be: a) Frivolous, vexatious or misconceived; b) Lacking in substance; c) Otherwise an abuse of process. 13. The meaning of “frivolous or vexatious” was considered by the Court of Appeal in Mudie v Gainriver Pty Ltd (No 2)3 The Court’s findings are usefully summarised by Rackemann DCJ in Collier & Collier v Brisbane City Council & anor; Sexton & Sexton v Brisbane City Council & anor 4 . 14. Given that there has been no consideration of the facts giving rise to this proceeding, I cannot say that AWB Constructions’ claim is frivolous or vexatious, as I am unable to say that it is without foundation. 15. Is the application otherwise an abuse of process? In Walton v Gardiner5 Mason CJ, Deane and Dawson JJ said at page 392: 1 [2008] QCA 274 2 Per Muir JA at paragraph 52 3 [2003] 2 Qd R 271 4 [2009] QPEC 40 5 (1992-1993) 177 CLR 378 -- 3 of 4 -- BDL040-09 / Page 4 of 4 “... Proceedings ... should be stayed as an abuse of process if, notwithstanding that the circumstances did not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has formerly been disposed of by earlier proceedings.” 16. The present application is on substantially the same facts as the previous application. It did not prosecute that action diligently (or at all). AWB Constructions took no action to contest, set aside or appeal the decision of the Commercial and Consumer Tribunal. It must be aware that, to the extent that the earlier proceedings are still on foot, they have been stayed to enable Mr Abbott to pursue his claim against the statutory insurance fund and that fresh proceedings may delay Mr Abbott’s access to the statutory fund. 17. AWB Constructions has not given the tribunal any reason why these proceedings are legitimately brought nor has it indicated why it might be in a position to comply with directions of the tribunal in these proceedings when it failed to do so in the earlier proceedings. The only conclusion open to me is that the present proceedings were filed without legitimate purpose. 18. Pursuant to section 47(2), if an application is brought by a party who is not the applicant, the tribunal may: a) Make its final decision in the proceeding in the applicant’s favour; or b) Order that the party who brought the part before the tribunal be removed from the proceeding; or c) Make a costs order against the party to compensate for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding. 19. Mr Abbott has not sought costs. Removal of AWB Constructions as a party will bring the proceedings to an end. Therefore, the appropriate order is, as before, to dismiss the application brought by AWB Constructions. -- 4 of 4 --