This matter was relisted before the Tribunal for further hearing on 19 November 1996, the matter having been adjourned from a failed mediation agreement hearing on 7 November 1996. There was no appearance by the First and Second Respondents at either the first or resumed hearing. The Applicant was represented at both hearings by a Solicitor.

On 7 November 1996, the Tribunal ordered per Order No. 4 that:-

"THAT THE RESPONDENTS RETURN THE MORTGAGE DOCUMENTATION REFERRED TO IN PARAGRAPH 4 OF THE AGREEMENT EXECUTED BY THEM TO THE APPLICANT BY

Order No. 4 makes reference to a "term" of the mediation agreement between the parties dated 28 August 1996. The mediation agreement at paragraph 4 states:

"The Respondents hereby agree to secure payment of the amount of $26,950 to the Applicant by executing or causing to be executed Mortgages on any real property assets as required by the Applicant, such Mortgages to be prepared at the cost of the Applicant."

It is useful at this point to detail a brief history of the matter. The Applicant commenced this application on 20 June 1996, seeking certain relief against the Respondent Contractors. The dispute was referred to mediation and the matter was settled on the terms recited in a document entitled "Settlement Agreement" dated 28 August 1996. That Agreement provided for the performance of certain obligations by the Respondents and when that did not occur, the Applicant applied to the Tribunal to have the matter relisted on 7 November 1996.

At that hearing, the Tribunal made the "Settlement Agreement" an Order of the Tribunal and enlarged the time for payment of monies by the Respondents under the original Settlement Agreement.

Paragraph 4 of the Settlement Agreement obliged the Respondents to execute certain mortgage documentation, as it had been agreed that the Respondents would provide security for settlement monies by providing a mortgage over their assets.

At the resumed hearing of this matter, the solicitors for the Applicant informed the Tribunal that the mortgage documentation had been forwarded to the Respondents, but not returned and that, accordingly, the Order, which is Order No. 4 of 7 November 1996 was sought and made.

The solicitors for the Applicant specifically sought to relist the matter for further hearing on 19 November due to the First and Second Respondents non-compliance with Order No. 4. The time for payment of settlement monies under the Settlement Agreement has as yet not fallen due, and that was therefore not an issue at the resumed hearing.

Although there was no appearance by the First and Second Respondents at the hearing on 19 November 1996. The Tribunal was satisfied that they had notice of those proceedings and the Tribunal was empowered to proceed as it did pursuant to section 87.(2) of the Queensland Building Services Authority Act ("the Act").

The solicitors for the Applicant submitted that the Respondents ought be fined by reason of their failure to comply with the Tribunal's Order of 7 November 1996. However, I have been unable to locate the power to fine a party for such a breach within the Act. Certainly the Tribunal is empowered in proceedings commenced pursuant to section 101 of the Act to impose a fine, but such proceedings are proceedings commenced by an application of the Queensland Building Services Authority. These proceedings are not so commenced, they are proceedings concerned with a domestic building dispute which the Tribunal is empowered to deal with pursuant to section 95 of the Act.

Section 84 of the Act contains or makes reference to "contempt of the Tribunal". However, that section simply identifies what "acts" by a party will constitute a contempt, but does not contain a specific power to deal with that contempt by imposition of a fine. In the absence of express wording, I am not prepared to conclude that there is a power pursuant to section 84 to impose a fine for acts of contempt by a party.

The conduct by the First and Second Respondents in failing to provide a mortgage as promised has prejudiced the Applicant in two (2) ways. Firstly, he has expended monies in relation to the preparation of mortgage documentation and, because of the Respondents' failure to return that documentation, has lodged a caveat over properties owned by the Respondents. He is also prejudiced because he does not hold security in relation to settlement monies as was contemplated by the Settlement Agreement.

I consider it to be fair and just that the Applicant is awarded damages in respect of the costs he has incurred in reliance upon the Respondents' promise in the Agreement and as enshrined in the Tribunal's Order of 7 November 1996, that they execute mortgages. There is power to make such an Order pursuant to section 95.(4) of the Act.

The Applicant's solicitors submitted that the following costs had been incurred by the Respondents in relation to the Respondents' breach of Order No. 4 as follows:-

(ii) searches (Valuer-General's and Titles' Office) $ 41.80

(vii) Magistrates' Court costs scale for appearance on

The solicitors for the Applicant further submitted that the Applicant should receive their costs of appearance at this hearing and the hearing of 7 November 1996. In view of the fact that both appearances were required by reason of the Respondents' failure to comply with the Settlement Agreement, on the one hand, and the Tribunal's Orders of 7 November 1996, I accept that submission and consider that the costs submitted in respect of those appearances to be reasonable charges which should be borne by the Respondents.

The other costs detailed in the submission by the solicitors, appear also to me to be proper costs which have been incurred as a direct consequence of the Tribunal's Order of 7 November 1996 and the Settlement Agreement and the Respondents' breaches of those obligations.

I order that the First and Second Respondents pay the sum of two thousand, eight hundred and ninety-two dollars and seventy cents ($2,892.70) to the Applicant by 4.00pm on 28 November 1996.

CAC: E:\DECISION\1996-DEC\DOMESTIC\C283-96D.DOC