CITATION:	Timuss v ADG Engineers (Aust) Pty Ltd & Anor  [2015] QCAT 457	

PARTIES:	Gary Timuss
(Applicant)	
	v	
	ADG Engineers (Aust) Pty Ltd
(ABN 63 131 876 143)
(First Respondent)
Jones Lang LaSalle (Qld) Pty Ltd
(ABN 40 010 411 140)
(Second Respondent)	

APPLICATION NUMBER:	MCDO79-15	

MATTER TYPE:	Other minor civil dispute matters 	

HEARING DATE:	On the papers	

HEARD AT:	Southport	

DECISION OF:	Adjudicator Alan Walsh	

DELIVERED ON:	29 September 2015	

DELIVERED AT:	Southport	

ORDERS MADE:	1.	The Respondents application to dismiss the Applicant’s claim is refused.
2.	The hearing date 6 October 2015 is vacated.
3.	The Applicant must file with the Tribunal and serve on the Respondents by 4pm on 14 October 2015 any further affidavits and documents on which he intends to rely. 
4.	The Respondents must file with the Tribunal and serve on the Applicant by 4pm on 28 October 2015 all affidavits and material on which they intend to rely in response.
5.	The Applicant must file with the Tribunal and serve on the Respondents any affidavits on which he intends to rely in reply to the Respondents affidavits by 4pm on 4 November 2015.
6.	The parties may not rely on any evidence other than as provided for in these orders and as already filed and served without leave of the Tribunal.
7.	The Application is to be listed for hearing before Adjudicator Alan Walsh at Southport for a date on or after 11 November 2015 and as the only listed matter between 11am and 5pm.	

CATCHWORDS:	Application for summary dismissal of claim on grounds of vexation and abuse of process – challenge to jurisdiction – meaning of “consumer” - where grounds for dismissal of claim not made out – where Applicant had arguable case – where claim not objectively lacking in substance or with little or no chance of success – where appeal from previous dismissal – where procedural orders for affidavit evidence previously stayed on appeal – where stay of procedural orders not lifted – where denial of opportunity to file affidavit material would prevent procedural fairness – where parties sought reinstatement of previous procedural orders before hearing – where stay rendered previous orders of no utility – where further procedural orders for affidavits before hearing warranted.

Property Law Act (Qld) 1974, s 55
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 47, sch 3

Lim v New College Queensland Pty Ltd & Ors [2013] QCAT 605
Stallard v Alsun Aluminium Pty Ltd & Lee [2011] QCAT 343

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

[1]	I part heard this dispute and made orders on 16 April 2015 requiring the filing and service of further affidavits by the Applicant by 7 May 2015 and by the Respondents by 28 May 2015. I adjourned the hearing to a date to be fixed on notice to the parties for not earlier than 15 June 2015.
[2]	On 13 March 2015, some five weeks prior to my orders on 16 April 2015, I had dismissed an application of the Respondents filed on 9 March 2015 to dismiss the Applicant’s claim on grounds that it was vexatious and an abuse of process. I gave oral reasons for which there is no typed transcript available to me now. Essentially, they were that the Respondents asserted vexation and abuse of process unsupported by evidence and submissions and had therefore not discharged their onus.
[3]	The Respondents sought and obtained leave to appeal my dismissal of their application on grounds they had been deprived of procedural fairness. The appeal was allowed on the papers on 11 August 2015 in APL 163-15. Senior Member Stilgoe OAM held the Respondents had not been afforded natural justice and ordered a timetable for submissions to be filed and served in respect of the dismissal application. The timetable commenced on 25 August 2015 and ended on 22 September 2015. The last of the Respondents’ submissions were filed on the latter date and the application has come before me on the papers again for decision.
[4]	But for the Respondents’ appeal, this dispute would have been heard and determined by me on a date shortly after 15 June 2015. That was not to be. The Respondents’ appeal and further pursuit of the dismissal application has resulted in a delay of more than 6 months. Further delay is inevitable if I again dismiss the Respondents’ application.
[5]	Though there is no reference to a stay order in the Appeal Orders of the learned Senior Member made on 11 August 2015, the Respondents’ solicitors say that my orders made on 16 April 2015 were stayed on 11 May 2015. They say that the stay has not been lifted and that my orders were not ‘reinstated’ when a Notice of hearing for 2pm on 6 October 2015 issued to the parties. 
[6]	To further complicate matters, 6 October 2015 is not one of my sitting days at Southport and the listing for that date took no account of my interim adjudication in this matter. I am unavailable for the month of October 2015. Inevitably, the hearing would need to be further adjourned if the Respondents’ reinstated dismissal application is again unsuccessful. The Respondents’ solicitors say that there will be insufficient time to prepare for the next hearing. They now seek reinstatement of my orders made on 16 April 2015 in that event and the Applicant concurs with this approach.
[7]	I have no power to lift the learned Senior Member’s stay of my orders made on 16 April 2015, however they now lack utility. The time for compliance has long since passed. If the stay of now defunct orders is to be lifted, yet another application will need to be filed by the Respondents with even more delay. On the other hand, if I determine that the Respondents’ dismissal application should again be dismissed, I do have the power to make further procedural orders to facilitate the next hearing and I should do so. A headlong rush to final judgment without full evidence would inevitably generate yet another appeal.
[8]	The Respondents’ submissions in support of their dismissal application and in reply to the Applicant’s submissions together with associated documents and copies of case law run to some 773 pages against the Applicants submissions and associated documents which total 21 pages in all. This has the hallmarks of a David and Goliath battle. The Applicant, Mr Timuss, points out that this is a small claim for $6,589.50 and that he has to be very careful to limit his expenditure on solicitors. On the other hand, it seems to me there is no such limitation on the Respondents’ resources. There is at least a hint of oppression.
[9]	Mr Timuss is one of many Lot owners in the building called ‘Top of the Mark’ in which the Second Respondent, Jones Lang LaSalle (Qld) Pty Ltd, in conjunction with the First Respondent, supervised fire rectification works, part of which are the subject of Mr Timuss’ claim. It is likely that there are underlying but as yet undisclosed insurer interests at play as well. If the Respondents ultimately prevail in this case then that will deter claims by other owners and, vice versa, other owners will be encouraged to make their own claims. In other words, despite the limited quantum of Mr Timuss’ claim, there is much more at stake here.
[10]	The Respondents’ dismissal application asserts that Mr Timuss’ claim is vexatious and an abuse of process. The Respondents say that the Tribunal has no jurisdiction to hear it because Mr Timuss is not a consumer as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act in that he was not privy to the contract between Jones Lang LaSalle (Qld) Pty Ltd and the Body Corporate for the Top of the Mark Community Title Scheme (CTS) 11751 dated 10 December 2012. As such, they say that Mr Timuss is not a ‘relevant person’ as required for the exercise of minor civil dispute jurisdiction.
[11]	On the other hand, Mr Timuss says that he was both owner of Lot 149 in Top of the Mark as well as a member and treasurer of the Body Corporate, that the Respondents interacted with him in his capacity as the treasurer for the Body Corporate, that the Body Corporate was acting for the benefit of its members (owners) including Mr Timuss when entering into the contract for the rectification works, and that section 55 of the Property Law Act (Qld) 1974 applies, conferring on beneficial owners, including Mr Timuss, an entitlement to consumer relief. He also says that the relationship between the parties is a matter to be determined at hearing on the basis of evidence provided to the presiding Adjudicator and I agree with that submission. It is highly undesirable that a dismissal application should be determined in an evidentiary vacuum on an essential issue.
[12]	In response, the Respondents say that they have never been served with any affidavits in the Applicant’s name in support of his claim. That is so, but that is because my orders of 16 April 2015 were stayed by the learned Senior Member when the Respondents filed their application for leave to appeal. The Respondents can hardly complain about the absence of an affidavit from the Applicant in circumstances where they themselves obtained the stay order that prevented the Applicant from filing his material in terms of my order. They cannot be permitted to take advantage of their own obstruction and oppress Mr Timuss in the result.
[13]	The Respondents also say that Mr Timuss cannot establish that he is a consumer for jurisdictional purposes because he is not an individual who bought goods or for whom services were supplied for fee or reward. Certainly, on the documents and submissions so far, it does appear to me that Mr Timuss did not purchase multiple detector hardware installed in his Lot on the alleged (mis)representation of the Respondents that a single multicriteria detector was not feasible. 
[14]	However the services which included the installation of multiple detector hardware in Mr Timuss’s Lot amongst others were services supplied for fee or reward payable, and paid for, by the Body Corporate. I am not at this stage persuaded that, properly construed, subparagraph (b) of the definition of ‘consumer’ in the Schedule to the QCAT Act requires that the fee be actually paid by the consumer as opposed to someone else such as the Body Corporate in this case for the consumer’s benefit. The submissions of the Respondents solicitors do not address the issue.
[15]	I therefore do not accept that the Respondents have established that Mr Timuss’ claim is objectively lacking in substance and has little or no chance of succeeding such as to warrant summary dismissal at this stage as they contend. Not all the evidence is in and it seems to me that Mr Timuss would be deprived of procedural fairness if he were prevented from filing his affidavits. I do not accept at this stage that Mr Timuss lacks an arguable case. As Adjudicator Trueman said in Lim v New College Queensland Pty Ltd and Ors, ‘... striking out should be sparingly granted to prevent abuse of process when a claim is groundless or lacks merit.’
[16]	This does not mean that Mr Timuss’s claim will ultimately succeed, but he should be permitted to fully articulate it and the underlying evidentiary basis of it.
[17]	In concluding, I note that Mr Timuss foreshadows amendment of his claim to invoke the Tribunal’s jurisdiction to adjudicate a domestic building dispute on the same facts, however it is not appropriate to make an application of that nature in the run of submissions. Mr Timuss will have to make a separate miscellaneous application for consideration on the papers if so advised and can do so after all the affidavit evidence is in. That application can be dealt with at the commencement of the next hearing. 
[18]	I therefore order that:  
1.	The Respondents application to dismiss the Applicant’s Claim is refused;
2.	The hearing date 6 October 2015 is vacated;
3.	The Applicant must file with the Tribunal and serve on the Respondents by 4 pm on 14 October 2015 any further affidavits and documents on which he intends to rely;
4.	The Respondents must file with the Tribunal and serve on the Applicant by 4 pm on 28 October 2015 all affidavits and material on which they intend to rely in response;
5.	The Applicant must file with the Tribunal and serve on the Respondents any affidavits on which he intends to rely in reply to the Respondents affidavits by 4 pm on 4 November 2015;
6.	The parties may not rely on any evidence other than as provided for in these orders and as already filed and served without leave of the Tribunal;
7.	The Application is to be listed for hearing before Adjudicator Alan Walsh at Southport for a date on or after 18 November 2015 as the only listed matter between 11 am and 5 pm.