ACT Both Parties Serve Documents on Different Days at Different Courts?

[natedog]

Hi all,

I am currently in a building dispute. In a nutshell, according to the contract there are retaining walls to be built. Walls have not been built and I am withholding payment until they are. As builder refused to build, I lodged application with tribunal to make a judgement. Builder lodged an application with magistrates courts for payments, interest and costs.

I submitted my documents on 18 Sept (as ACAT dated on form). He submitted forms on 15 Sept (as his solicitor wrote on form). I received my documents from tribunal about a week later saying that they had served the respondent by mail. I was served with his documents only today.

The documents for tribunal say that if the builder does not respond by 20 October then I can apply for a default judgement. The documents I received say that I have 28 days to respond from the day I was served, which should be 1 November.

Now, because he was served first, does that mean if ACAT makes a default judgement against him, I don't need to go to magistrates court? If he turns up to ACAT and a decision is made, do I still need to go to magistrates court as well?

Or does magistrates court take precedence being a higher court, or because his documents are dated (but not served) earlier?

Does something else happen that I don't know about?

I am confused and would really appreciate some advice.

Cheers

N

 

[Sarah J]

Hi Nate,

You will still need to deal with the Magistrates' Court summons. Essentially, you can apply to the Magistrates' Court and ask for an adjournment while the ACAT matter is being dealt with. You do not need to do anything with ACAT regarding the Magistrates' Court action. In most cases, court will grant you adjournment and allow the parties an opportunity to resolve their problem in alternative dispute resolution.

 

[natedog]

Thank you Sarah, that is helpful information.

Should I request an adjournment immediately, or am I able to request closer to the 28 day period in which I have to respond to the notice I was served with today? Reason being, if the builder does not respond to the ACAT notice before 20 October I can apply for default judgement, this would likely be in my favour, and I believe that the builder has a high chance of not showing up.

If I request an adjournment for the magistrates court however his solicitor will inform the builder, and they would most likely both attend ACAT.

And as a second part of the question, what if ACAT finds in my favour, does this mean that magistrates may find in the builders? Does one override the other? Or say ACAT found in my favour can I simply attend magistrates court, and say the matter has already been heard and a decision made?

Thanks again
Nate

 

[Sarah J]

Hi Nate,

1. You should request adjournment before the deadline for response to the builder's writ of summons. In the writ of summons, which you should have received, there is a deadline for when you can respond. You need to respond before this deadline by applying to the court for an adjournment otherwise the builder will have right to seek default judgment against you for no defence. For the ACT this is 28 days from the date of service (inclusive): Court Proceedings Rules 2006 s 102. I am not too familiar with ACT procedures and laws so double check this with the Magistrates' Court.

2. The Magistrates' Court should not be hearing the matter if it has already been initiated in the ACAT. A tribunal award is generally recognised and enforceable by court. So if ACAT issues a decision, you will need to seek an enforcement order from the Magistrates' Court afterwards. The court will not rehear a matter already heard before and decided by a tribunal unless there was a problem with the tribunal hearing and the decision is invalid.