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QLD QCAT Case For Plumber's Defective, Incomplete Work - Respondent Unresponsive?

Discussion in 'Australian Consumer Law Forum' started by Jimmy'74, 20 September 2014.

  1. Jimmy'74

    Jimmy'74 Active Member

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    Hi ladies and gents, I'm in need of some advice regarding a QCAT case I have lodged against the plumber.
    The case is in regards to defective/incomplete work as well as failing to provide any paperwork for $2000 I paid him.

    I have lodged/served(posted) all the required paperwork with QCAT and the respondent. I sent the paperwork to the respondent over four weeks ago now and also informed a solicitor who contacted me via email stating they are representing the respondent, that the paperwork was still awaiting collection at the post office after a failed delivery attempt by Australia Post.

    After seeing that the respondent had still not collected the mail, 3 days after informing the solicitor of the mail I sent an email stating that it did not appear that their client seemed to have any intention of collecting the mail and that I will apply for a decision by default.

    Two days later, the mail was still uncollected. I also do not believe the respondent did not know there was registered mail for him as AU Post carded his business address.

    What do I do from here under Australian Consumer Law? I can lodge the application for a decision by default which really is a waste of time as QCAT told me he can then simply contact them and resume the case suspending my application and if no further action is taken by the respondent the case would be canceled after six months.

    I'm sorry for the long winded question but I'm really getting frustrated with how the system makes it too hard to do anything about shonky tradies. Thanks for any advice.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi jimmy,

    When you initiate action, you should personally serve them the notice. This is to ensure that that have actually received it. However, if they are a company/business, sending the writ to their registered postal address should suffice. If they have appointed a solicitor then clearly they have notice of your intention to initiate action, so that's not a problem there. Their solicitors should also be able to collect the documents.

    After 28 days from service, you can apply to QCAT for a default judgment. You will need to serve this application for default judgement to the Defendant and/or their Solicitors: http://www.qcat.qld.gov.au/matter-types/debt-disputes/application-process-debt-disputes

    A default judgment may be disputed or set aside by the Defendant upon their application to court. They will need to 1) provide a reason as to why they didn't meet the timeline for response; and 2) show that they have a defendable case. The latter factor is must more important than the first.

    Default judgments are usually set aside by court given that the right to defendant and respond is an essential right protected by court. You should be notified of the Defendant's intention to set aside a default judgment and the court's response.
     
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  3. Jimmy'74

    Jimmy'74 Active Member

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    Thank you very much for your reply Sarah. I'm figuring my only real option is to lodge the application for a decision by default.
    Just a couple more questions if you don't mind.
    It states on QCATS site that you cannot be represented by a solicitor but can seek legal advice. Does this mean I should email his solicitor and instruct them to stop contacting me directly and to confer with their client only. Also the solicitor has asked in an email that correspondence between the respondent and myself be sent directly to them and not the respondent. Am I obligated to do this or can/do I continue to send correspondence directly to the respodent?
    Also the case I have is in relation to defective/incomplete work under the building act of 1991. In one part of the website it states I can make an application for a decision by default under the building act but then further down the page it states I cannot lodge this application for defective/incomplete work. I'm confused with that part of it.
    If indeed I can lodge the application, my understanding is that I would lodge it as un-liquidated assets and justify as best as I can how I reached/can justify the amount sought. Is this correct? Again, thank you very much for your help Sarah/anyone who can help. Cheers, Jamie.
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Jamie,

    1. Yes, QCAT requires people to be self-represented to save costs and makes things more speedy. If the Defendant wishes to be represented by a solicitor, they will need to ask the court's permission ("seek leave") to allow representation. They will need to fill in Form 56 of QCAT and once the court grants its order, they should issue you with a copy.

    2. You're right. Email or write to the solicitor and make them aware of this rule. They are able to advise the Defendant, but any communication should be between the Plaintiff/Applicant (yourself) and the Defendant directly. Also, it would be advisable to send any email correspondences to the Defendant as an attached party.

    3. I am not too familiar with the Building Act 1991 (Qld), are you able to send me a link to which two pages you are referring to?

    4. Liquidated damages is for when you can quantify the loss or there is a method of calculating the loss. This means, you can directly demand a sum of money from the Defendant and they can either admit to this or oppose it (along with quantified costs: filing fees etc). Unliquidated damages is when the loss is just too difficult to quantify as yet and you require the court's assistance in ordering reasonable loss and costs. Do you know how much you are claiming, or can you calculate how much you claim? If so, this would be liquidated damages.
     
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  5. Jimmy'74

    Jimmy'74 Active Member

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  6. Sarah J

    Sarah J Well-Known Member

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    Hi Jamie,

    The reason why the court will not allow you to make an application for default judgment where you are seeking an order for rectification/completion is because courts do not like to force parties to actively do things against their will. Courts hate it even more if the other party is not there to reply/make submissions/defend/give their side of the story.

    The breach of the contract may be on the grounds of failing to complete work. That is fine. It is only when the order you seek is for the Defendant to complete or rectify the work done (i.e. some positive act). Instead, you can seek compensation for breach of contract.
     
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  7. Jimmy'74

    Jimmy'74 Active Member

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    Hi Sarah,
    Would that still apply if the respondent failed to supply a contract for the work? The respondent has failed to supply any paperwork including a receipt for money paid to him. This is mentioned in my original application with QCAT. Or does it not matter what my original application asked for, just don't make my application for a decision by default in relation to anything being rectified. Make it a financial claim?
    I hope I am understanding this and you are not beating your head against your monitor.lol Thanks Sarah.
     
  8. Sarah J

    Sarah J Well-Known Member

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    Hi Jamie,

    Yeah, you've gotten a bit confused between evidence and the order you're seeking.

    If you seek the court to order the respondent to continue with the work, to rectify the work done or to complete the work (i.e. not a monetary sum but you're asking the respondent to do something physical/active) then that default judgment application you have cannot be used.

    If you are happy to ask the court to order you compensation for any breach of contract or misrepresentations made or otherwise, then that default judgment application is able to be used.

    The fact that you did not sign a written contract with the respondent is an evidence/fact matter. This will go toward the material issue of "was there an agreement/contract"? Note that a contract does not need to be written, but can be oral or evidenced by part performance. If you cannot prove a contract, there may be grounds in equity (estoppel) or unjust enrichment or misrepresentation (perhaps). The same applies for the fact that the respondent never issued you with a receipt for payment of monies. This is an evidence issue and goes toward the material issue of "you paid respondent for services not rendered" and "damages/loss". Both have nothing to do with what order you are asking the court to issue you.

    Whether to use the default judgment application depends on what you would like/be satisfied with getting if all goes well. Will you be happy with compensation (including any differences and extra costs incurred for finding an alternative contractor) or do you want that particular respondent to finish the job? Your original application should give you the answer to this. If you wish to change the order, you'll need to apply to QCAT to amend your original writ or issue a new writ.
     
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  9. Jimmy'74

    Jimmy'74 Active Member

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    Thank you very much for your help Sarah. This is the latest email from the respondents solicitor which I believe shows he has not done any research into how QCAT cases are carried out.
    It appears the easiest way to resolve the matter is to resend the stamped documents to the respondent ( I believe they are in transit on the way back to me from AU. post) as an application for a decision would more than likely be set aside and the case resumed meaning it would be a waste of the tribunals and mine time.
    However, I will be entering the emails as evidence as to the respondents lack of co-operation in resolving this matter.
    Thanks again Sarah.
    I'm off work on sickness at the moment so money is a bit tight, but if you cannot benefit directly is there a charity you would like me to make a small donation to? I really do appreciate your help.

    Dear Jamie,


    I have been away on holidays and this is the first time I personally have been involved in this matter.


    I have read all the material and I have spoken to my client. I note in your email dated the 18 September 2014 you state the QCAT Claim was sent to my client by registered mail. My client has advised me that he has received no notification from Australia Post that there is any mail for his collection. Can you please advise what address you sent the Claim to.


    As a solicitor I am able to accept service of documents on behalf of my client. I invite you to email me the claim as service of the claim. Once I receive the claim I can advise my client as to the claim. There are circumstances in which a person can be represented in QCAT. Until I see the claim I cannot provide any advice to my client.


    I advise that if you obtain a judgment by default without responding to this email I have instructions to make an application to have the judgment overturned.
     
  10. Sarah J

    Sarah J Well-Known Member

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    Hi Jamie,

    The solicitor is correct in that there are circumstances where a person may be represented. They will need to apply to QCAT and you may possibly attend or issue a response objecting this or argue that if allowed, the other side shall bear the costs of representation notwithstanding the outcome of your case.

    As the solicitor noted that the opponent did not actually receive the papers, did you mail them to the business' registered address? If so, do you have a receipt of postage provided to you by Registered Post? Speaking with Australia Post and tracing the tracking number may also be worth doing. For default judgment to be possible, you do need to satisfy QCAT that the papers did arrive and the business' claim that there was no effective service is not credible.

    I would suggest giving QCAT a call and enquiring about whether or not you are recommended to respond to the solicitor.

    There's no need to compensate us here for assisting you with your matters. This is a free website and we're all on here because we want to help. The law can be a complicated thing to navigate. It's enough to know that you found my advice helpful! :)
     
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