Adams & Anor v Mitchamy Developments Pty Ltd [2010] QCATA 26

CITATION: Adams & Anor v Mitchamy Developments Pty Ltd [2010] QCATA 26 PARTIES: Michael Charles Adams & Erica Adams- Atkinson (Applicants) v Mitchamy Developments Pty Ltd (Respondent) APPLICATION NUMBER: APL030-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 7 May 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused CATCHWORDS : BUILDING DISPUTE – DOMESTIC BUILDING CONTRACT – SET-OFF ARISING FROM REAL ESTATE COMMISION – PARAGRAPH IN AMENDED DEFENCE STRUCK OUT FOR WANT OF JURISDICTION – where respondent agreed to set off contract price for property that is subject matter of the current proceeding if applicant secure purchaser for property not related to the current dispute – where adjudicator struck off paragraph in amended defence pertaining to issue of set-off – whether issue of set-off in these circumstances is properly within the jurisdiction of the Tribunal Property Agents and Motor Dealers’ Act 2000, ss 133, 134 Queensland Building Services Authority Act 1991, schedule 2 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii) -- 1 of 5 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: REASONS FOR DECISION [1] The parties are involved in a building dispute1 in QCAT. On 11 February 2010 a member of QCAT ordered that a paragraph in an amended defence filed by Mr Adams and Ms Adams-Atkinson (the Adams’) should be struck out for want of jurisdiction. They seek leave to appeal that decision.2 [2] By order of 19 March 2010 it was directed that their application be determined by written submissions, according to a timetable. Both parties have provided submissions. [3] Neither disputes the learned member’s summary of the background to this dispute, which has its foundation in a domestic building contract between the parties entered into in December 2004 concerning the construction of a dwelling at 12 Oceanic Court, Twin Waters. [4] Mitchamy commenced proceedings in the Commercial and Consumer Tribunal in early 2006 claiming unpaid contract sums and supplementary monies. Pleadings, including a defence and counterclaim from the Adams’, were exchanged in that year. In March 2007 the CCT observed, in one of its directions, that Mitchamy’s claim was for $72,935.60 and the Adams’ counterclaim was for $79,962. [5] It was directed that the parties prepare and file a joint statement of facts, which they did in March 2007. The matter then appears to have gone to sleep until this Tribunal directed that the parties attend a compulsory conference, which took place on 11 February 2010. Following that conference the learned member directed that paragraph 3(iii) of the Adams’ amended defence filed on 8 February 2007 be struck out. [6] That defence (and counterclaim) is a large and complex document. It asserts, firstly, that the Adams’ grounds for disputing Mitchamy’s claim are set out in a document forming attachment ‘A’ to the pleading. It is then asserted that the nature of their defence is particularised in their joint statement of 14 September 2006 – a document of 38 pages, with 21 numbered annexures. A separate counterclaim is pleaded in attachment ‘B’ to the defence. [7] In paragraph 3 of attachment ‘A’ the Adams’ dispute particular paragraphs in Mitchamy’s statement of claim for four reasons. The third, in a paragraph numbered 3(iii), reads: 1 Mitchamy Developments Pty Ltd v Adams & Adams-Atkinson BD062-06. 2 Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii). -- 2 of 5 -- 3 Allowing for the agreed reduction in the contract price the progress payments exceeded the percentage of the contract price to be paid for the stage. Further the amount of the progress payment exceeded the amount claimable because of work to be included up to and including the stage had not been completed. [8] The paragraph is not readily comprehensible, either by itself or in context. The learned member was diligent in attempting to find out what it meant and was apparently successful in doing so, because the submissions from both parties in the current application for leave to appeal do not disagree with her analysis. [9] In her reasons she says that it is alleged by the Adams’ that, under an agreement dated 4 August 2005, Mitchamy agreed to reduce the contract price for the property at 12 Oceanic Court by an amount of $40,400. That reduction, according to the Adams’ long statement, was for commissions owed by Mitchamy Developments to Mr Adams particularised, in annexure 1 to the statement as: Commissions owing to M Adams Trish & Marcel $5,075 Sale 2 Waterfront Court $35,325 Total Commissions $40,400 Under this appear the words ‘I Graham Gibson hereby agree to reduce total contract price of 12 Oceanic Court, Twin Waters by the above amount’. The document is then signed by Mr Gibson, and another signatory. [10] The learned member’s reasons record that Mr Adams is a real estate agent, and that the parties in the matter initially met when Mitchamy was building a display home located at 3 Waterfront Court, Twin Waters. The Adams’ allege that they marketed the property at 3 Waterfront Court and that Mitchamy agreed to pay a commission to them upon finally securing a purchaser for the property and, further, that the parties also agreed (as their statement recites) that: ‘Form 22a would not be relied upon and that it would be a financial advantage to both parties that an amount less than that required under a Form 22a (between a seller and a real estate office) be deducted from the Contract Price of the building Contract’. [11] (A Form 22a is a document required under ss 133 and 134 of the Property Agents and Motor Dealers Act 2000 (PAMDA). Relevantly, it is essential to a real estate agent’s right to claim commission.) [12] The learned member concluded that it was this commission that formed the basis of the set-off particularised in paragraph 3(iii). As she correctly observed, QCAT’s jurisdiction is constrained to building disputes of a kind which fall within the definitions in Schedule 2 of the Queensland Building Services Authority Act 1991. She then characterised any dispute about the amount claimed as a deduction by the Adams’ as a dispute about real -- 3 of 5 -- 4 estate commission, not building; and, observed that the alleged set off related, in any event, to a property that is not the subject of this building dispute. [13] She concluded there was ‘…not a sufficient nexus between the alleged set off and the building dispute at hand to justify further consideration of the matter by the Tribunal… though the alleged agreement was to reduce the contract price of 12 Oceanic Court (the property that is the subject of the domestic building dispute) there is no other common factors that would warrant hearing the dispute about the real estate commission in conjunction with the domestic building dispute’. [14] The Adams’ statement appears to confirm that the Form 22a annexed to their statement is in truth the underlying transaction behind the pleading in paragraph 3(iii) because, as the statement goes on to record, the ‘financial advantage’ to Mitchamy was commissions for a total of $40,722.35. [15] Although, in their submissions, the Adams’ assert that Mitchamy willingly entered into the agreement which is annexure 1, they also assert that: ‘in any event whether or not the document is correct is irrelevant as no commission/s were ever paid’. [16] On its face the submission clouds, rather than clarifies, the Adams’ complaint; annexure 1 plainly refers to ‘commissions owing to M Adams’. It is their own statement which refers to, and annexes, a Form 22a between Mitchamy and another entity, Twin Waters Realty Pty Ltd, relating to a different property, before proceeding to quantify the set off at something over $40,000. [17] It is compelling that, as the learned member observed, the apparent set- off referred to in paragraph 3(iii) has some connection with unrelated transactions involving real estate commission over a property to which this building dispute does not relate and, apparently, involving different parties. [18] The Adam’s own statement undermines, rather than supports, their submission that the learned member was wrong when she concluded that the set-off was not related to the property which is the subject of the building application and was outside QCAT’s jurisdiction in this dispute because, as she said, it would not be possible for this Tribunal to make a determination about the issue without considering the impact to provisions relating to commissions under PAMDA. [19] It is also necessary to observe that the assertion, in the submissions from the Adams’, that the learned member’s decision incorrectly places the onus upon them to ‘…seek to have the validity of the Form 22a determined in another court’ is misconceived. For the reasons explored at length in the member’s reasons it is the assertion, in their own pleading, that the reduction is connected with a claim for commission that primarily gives rise to the question whether the alleged set-off is properly a matter -- 4 of 5 -- 5 for determination here. It is that statement, and its annexures, which provides plain support for the conclusions the member reached. [20] That is not to say, as the learned member went on to observe, that Mr Adams may not have some entitlement to commission in the sum of $40,400 but it is not a matter that can, or should be determined in this dispute. [21] No error has been identified in the decision and there is no question of importance about which further argument and a decision of the Appeal Tribunal would be of public advantage3 . Leave to appeal should, then, be refused. 3 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. -- 5 of 5 --