Albion Projects Pty Ltd v Simpson & Anor [2014] QCAT 73

CITATION: Albion Projects Pty Ltd v Simpson & Anor [2014] QCAT 73 PARTIES: Albion Projects Pty Ltd (Applicant) v Jonathon Simpson & Kim Simpson (Respondents) APPLICATION NUMBER: BDL104-13 MATTER TYPE: Building matters HEARING DATE: 20 February 2014 HEARD AT: Brisbane DECISION OF: Senior Member Oliver DELIVERED ON: 25 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application filed on 12 February 2014 to transfer the proceeding to the District Court of Queensland is dismissed. CATCHWORDS: Case Management – application to transfer the proceeding to the District Court – where the District Court proceeding seeks the same relief that the Tribunal has jurisdiction to grant – where proceeding is actively case managed – where exercise of discretion does not favour a transfer – where failure to comply with directions. Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 52 Queensland Building and Construction Commission Act 1991 (Qld) s 77 AON Risk Services Australia Limited v Australia National University [2009] HCA 27 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Represented by Mr Feehely, solicitor Jim Feehely Project Law. RESPONDENT: Represented by Mr East, solicitor of Clarke and Kann Lawyers. REASONS FOR DECISION [1] On 23 May 2013 the applicant commenced a proceeding in the building jurisdiction of the Tribunal claiming $272,159.72 from the respondents for the unpaid balance of monies owing under a cost plus building contract. Interest is also claimed for the delay in payment as well as the return of a bank guarantee in the sum of $47,845.00. [2] A response and counter application was filed by the respondents on 23 May 2013. The counter claim is for $575,000.00 damages for the cost to rectify defective building work less the amount of the bank guarantee. [3] Both parties have filed extensive pleadings. The respondents now want this proceeding transferred to the District Court of Queensland. The Tribunal has power to transfer a proceeding to a court under s 52 of the Act. A hearing of the application was conducted on 20 February and the decision was reserved. [4] In the usual way the parties were directed to file statements of evidence and the proceeding progressed to a compulsory conference on 30 August 2013. The proceeding was not resolved. On 13 November 2013, at a directions hearing, I made directions for the filing of further statements of evidence by either party, including expert reports and listed the application for an experts conclave on 28 February 2014. I also listed the matter for hearing for two days commencing on 25 March 2014. [5] The timetable put in place to progress this matter to a hearing and finalisation at the earliest opportunity is consistent with the objects of the QCAT Act to ensure that matters are dealt with in a way that is accessible, fair, just, economical, informal and quick.1 Given the complexity of the proceeding both parties were granted leave to be legally represented. Because of recent events one could be forgiven for being sceptical as to whether the granting of legal representation has assisted the timely progress of this building dispute and to have it determined expeditiously at a minimum cost to the parties. [6] The applicant complied with the directions of 13 November 2013 and filed its further material on 16 January 2014. The respondents however have not complied with the direction to file their further material by 15 February 2014. Instead, on 12 February 2014 they filed an application to have this 1 QCAT Act s 3. -- 2 of 4 -- 3 whole proceeding transferred to the District Court of Queensland. This application was listed for hearing on 20 February 2014. For some unknown reason the respondents assumed that the filing of the application for transfer relieved them of their responsibilities to comply with the Tribunal’s directions of 13 November 2013. That is clearly not the case and it is disturbing that the directions were not complied without the Tribunal’s approval. [7] The basis for the application for transfer, which is opposed by the applicant, is that the relief sought in the District Court proceeding is for:- “A declaration pursuant to section 23 of the Australian Consumer Law or alternatively section 2 of Schedule 2 to the Trade Practices Act 1974 (Cth) clauses 29.6(d) and 29.10 of the contract are void as unfair terms, or in the alternative a declaration of clauses 29.6(d) and 29.10 of the contract are void for uncertainty.” [8] There is no doubt that the Tribunal has jurisdiction to decide whether a term of a contract is void for uncertainty that is not challenged. What is contended for by the respondents is that only the District Court has jurisdiction to declare whether a term of a contract is unfair under section 51 of the Fair Trading Act, which Act supports the application of the Australian Consumer Law as a law of Queensland. There is little doubt that this must be right where that relief is sought as a cause of action. [9] At the directions hearing held on 20 February 2014, at which time I also heard the application for transfer; I gave leave to the respondents to file an amended response and counterclaim. In the amended response they allege, in paragraphs 13(g) and 16(d), that clauses 29.10 and 29.6 of the cost plus building contract are void pursuant to section 23 of the Australian Consumer Law. It may well be that, as a defence, the Tribunal has jurisdiction to determine that issue although I need not decide the application on point. [10] The Tribunal’s jurisdiction to decide a domestic building dispute, which this is, is conferred on it by section 77 of the Queensland Building and Construction Commission Act 1991. Subsection (2)(e) confers the following power on the Tribunal in deciding a building dispute:- (e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice. [11] The power conferred by this section would permit the Tribunal to make a finding that a specific clause in a contract is, in effect, unfair and void which is the same relief provided by section 24 of the Australian Consumer Law. This is also consistent with the general law where such a defence is raised. [12] For this reason alone I would not be prepared to order that this proceeding be transferred to the District Court. -- 3 of 4 -- 4 [13] In addition, and as an exercise of discretion, I would refuse the application because this proceeding is well advanced in the Tribunal providing of course, the respondents comply with the directions that have been made. The proceeding is listed for an expert’s conclave on 28 February 2014 and then a hearing. The use of the expert’s conclave has proven to be highly successful in resolving disputes or in the alternative narrowing issues that go to hearing, which shortens the hearing time and saves the parties cost. Upon provision of the joint experts report, in accordance with practice direction 4 of 2009, the proceeding should be ready for hearing. [14] The Tribunal engages in active case management of files to ensure that the objects of the QCAT Act are achieved. This is also consistent with ensuring that litigation of this kind does not get out of hand and is unreasonably delayed.2 If this proceeding is transferred there will be, undoubtedly, considerable delay. It is unlikely the proceeding will be case managed and the parties will have to comply with the Uniform Civil Procedures Rules both in respect of disclosure and pleadings to ensure compliance with the Rules. Here, pleading rules do not apply, nor do the strict rules of evidence. Also the Tribunal is a specialist tribunal for deciding building cases with Members well versed in the building jurisdiction. [15] Therefore, because the Tribunal can give the same relief sought in the District Court proceeding, and the matter is already listed for hearing, there would be no advantage to the parties in having the matter transferred. Also the exercise of discretion favours a refusal of the application. Order [16] The application filed on 12 February 2014 to transfer the proceeding to the District Court of Queensland is dismissed. 2 AON Risk Services Australia Limited v Australia National University [2009] HCA 27. -- 4 of 4 --