Mancorp Quality Homes Pty Ltd v Van Schagen

CITATION:

Mancorp Quality Homes Pty Ltd v Van Schagen & Anor [2013] QCAT 720

PARTIES:

Mancorp Quality Homes Pty Ltd

(Applicant)

Stephen Van Schagen, Evelyn Van Schagen
(Respondents)

APPLICATION NUMBER:

BDL071-10

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

19 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is listed for a Compulsory Conference at Brisbane on 21 May 2012.

2. Both Mr and Mrs Van Schagen should attend the compulsory conference.

3. Otherwise, the applications for interim orders filed on 2 May 2012 are dismissed.

CATCHWORDS :

BUILDING DISPUTE – compromise – accord and satisfaction

Skaines v Kovac Enterprises Pty Ltd (2006) QSC 120
Suncool Pools and Spas Pty Ltd v Freedom Pools and Spas (N)44-03) – 11 February, 2005

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

This matter was listed for a five day hearing commencing 21 November 2011. On the first day of the hearing, the parties settled their dispute and the learned Member adjourned the hearing so that a consent order could be filed.
The tribunal received a copy of the terms of settlement executed by both Mancorp Quality Homes Pty Ltd and Mr Van Schagen. The terms of settlement record:
a)    That Mr and Mrs Van Schagen will pay the settlement sum to Mancorp by 5 pm on 24 November 2011.
b)    That the settlement sum be paid to Mancorp’s lawyers’ trust account.
c)    Upon payment of the settlement sum, the parties will file a consent order to dismiss the proceedings.
d)    The terms of settlement would be incorporated into a deed of release to be executed by 5pm on 24 November which deed would include further standard terms including mutual releases.
e)    That the settlement sum would not be released from the trust account to Mancorp until the deed of release was executed by all parties.
Mr and Mrs Van Schagen paid the settlement sum and it has been released to Mancorp. Mr and Mrs Van Schagen say that the settlement sum was released in breach of the agreement and they have applied to the tribunal for interim orders:
a)    That the terms of settlement be ‘dismissed in their entirety’.
b)    That Mancorp be directed to return the settlement sum together with interest at the ‘current Deeming rate as used by the Department of Human Services’.
c)    That the current proceedings be stayed.
d)    That Mancorp’s lawyers be suspended from acting for the company and/or further participating in this matter.
e)    That the matter be referred to immediate conciliation.
f)     That the proceedings be immediately suspended and that the tribunal direct Mr and Mrs Van Schagen to have these matters raised before the District Court for determination.
Because this tribunal has a commitment to alternative dispute resolution, I did refer the matter to a compulsory conference by direction dated 11 April 2012 even though, for the reasons I discuss here, I had formed the view that the tribunal had no jurisdiction.

Preliminary matters

I conducted a compulsory conference in this matter in August 2010. Section 73 of the Queensland Civil and Administrative Tribunal Act 2009 provides that, at the end of a compulsory conference, the member must advise the parties of their right to object to the member who presided over the conference being the member constituting the tribunal. In August 2010, it was the tribunal’s practice to advise the parties that the member who presided over the conference would not be the member constituting the tribunal. The parties in this proceeding did not object to my hearing the matter as I had informed them that I would not be sitting.
My consideration of Mr and Mrs Van Schagen’s current applications is not a breach of s 73 or my undertaking. The parties have had the benefit of a hearing before a different member of the tribunal; this application is procedural, not substantive; and does not relate to the subject matter of the original proceeding which was the focus of discussions at the compulsory conference.

The applications

Mr and Mrs Van Schagen’s main complaint is that they have not been provided with an original copy of the deed of release. They say that Mancorp and/or their lawyers have deliberately refused to forward the original deed.
The tribunal has been provided with a copy of a deed of release dated 24 November 2011 which has been executed by all parties. There is only one change on the document that does not appear to be accepted by everyone: that is a reference at the foot of page 4 to ‘Annexure ‘A’ Supporting Document – Terms of Settlement’.
The tribunal has to decide whether it still has jurisdiction to hear this dispute. His Honour Justice Fryberg said in Skaines v Kovac Enterprises Pty Ltd[1]
In the present case, it can only determine its jurisdiction by resolving the question whether the dispute which undoubtedly existed at the time the proceedings were commenced in the Tribunal has ceased to exist. It can only do that by deciding whether the compromise alleged by Kovac was indeed a compromise, whether the agreement for compromise has been terminated, or whether for some other reason the alleged compromise has become ineffective.
[1](2006) QSC 120 at 9.
As Member Moon noted in a decision of the former tribunal:[2]
If the mediation agreement has the effect of bringing to an end the original cause of action, which the applicant might have had against the respondent, such that the applicant’s remedies arise entirely from the mediation agreement then this Tribunal does not have jurisdiction to hear and determine any claim which the applicant might have pursuant to that mediation agreement.
[2]Suncool Pools and Spas Pty Ltd v Freedom Pools and Spas (N)44-03) – 11 February 2005.
Of the five conditions in the terms of settlement, only one – the filing of a consent order – has not been completed by the parties. Mr and Mrs Van Schagen have paid the settlement sum to Mancorp’s lawyers’ trust account; the terms of the settlement have been incorporated into a deed of release and the parties have executed the deed.
It was not a condition of the settlement that Mr and Mrs Van Schagen receive the originally signed copy of the deed and it is well recognised that agreements can be concluded by the exchange of counterparts. In fact, paragraph 6 of the deed contemplates this situation.
There is nothing in the fact that the words ‘Annexure ‘A’ Supporting Document – Terms of Settlement’ have not been initialled by both parties. The requirement of the terms of settlement was that the deed incorporate the terms of settlement together with other standard terms. The requirement to pay the settlement sum is incorporated in the recitals of the deed and Schedules 1 to 3 inclusive. The requirement that the settlement sum be paid to Mancorp’s lawyers’ trust account is incorporated into the deed by Schedule 3. The requirement that the settlement sum would not be released until the deed was executed by all parties is incorporated into the deed by clause 4. The requirement that the parties file a consent order upon payment of the settlement sum is incorporated into the deed by clause 3.
As between the parties, the terms of settlement have been performed. So far as the tribunal is concerned, the terms of settlement have been performed, the proceedings are at an end and this tribunal no longer has jurisdiction. It follows, therefore, that the tribunal cannot stay the current proceedings because there are no proceedings left to be stayed.
If Mr and Mrs Van Schagen have any remedy, it arises from the terms of settlement and/or the deed, and not the tribunal proceedings. They do not need the consent of this tribunal to bring proceedings in the District Court.
The applications for interim orders filed on 2 May 2012 are dismissed.

In the case of Mancorp Quality Homes Pty Ltd v Van Schagen, the dispute arose from a building contract between the parties. Mancorp Quality Homes Pty Ltd, the builder, was engaged by the Van Schagens, the homeowners, to construct a residential property. The dispute centred around the quality of the workmanship and the fulfilment of the contractual obligations. The matter was heard by the Queensland Civil and Administrative Tribunal.

The primary legal issues before the tribunal were whether a compromise and settlement agreement, referred to as an accord and satisfaction, had been validly executed and whether it constituted a complete settlement of the claims between the parties. The tribunal needed to determine the enforceability of the agreement and its impact on the pending proceedings.

The tribunal found that the compromise agreement was valid and constituted an accord and satisfaction. It concluded that the agreement was a genuine settlement of all disputes between the parties, including those not explicitly mentioned in the agreement. As a result, the tribunal dismissed the applications for interim orders filed by Mancorp Quality Homes Pty Ltd. The tribunal ordered that both Mr and Mrs Van Schagen attend a compulsory conference to discuss the remaining matters.

The tribunal's decision was based on the evidence presented and the terms of the compromise agreement. It held that the agreement was clear and unambiguous, and both parties had acted with full knowledge and consent. The tribunal also noted that the agreement was in writing and signed by both parties, which satisfied the requirements for a valid compromise. The applications for interim orders were dismissed, and the matter was referred to a compulsory conference to facilitate further negotiations and resolution of any outstanding issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established