Default judgment refused: counterclaim served 21 minutes past a tribunal deadline (QCAT, 2026)

What happened

In February 2016 two home owners contracted with a building company to build a house for $2,085,600. The parties fell into dispute before the work was finished and each said it had ended the contract. The builder started a building dispute case in QCAT in August 2019, claiming just over $1.2 million at that stage. The home owners filed a response in October 2019 that defended the whole claim but did not include a counterclaim (a claim back against the person suing you, made inside the same case).

Instead of counterclaiming in the tribunal, the home owners brought their own claim against the builder in the Supreme Court of Queensland, served in November 2023. The builder asked the Supreme Court to set that claim aside, stay it or move it to the tribunal. In the meantime the tribunal gave the builder leave to amend, and in August 2024 the builder's claim was reduced to $628,003.41 plus interest. The home owners filed an amended response in September 2024 which again defended the claim in full and again included no counterclaim. In February 2025 the Supreme Court stayed the court claim until the tribunal case was finished.

At a directions hearing on 4 September 2025 the tribunal ordered that if the home owners wanted to press a counterclaim in the tribunal case, they had to file it and give a copy to the builder by 4:00 pm on Friday 26 September 2025, and that if they did, the builder had to file and give its response by 4:00 pm on Friday 10 October 2025.

The home owners filed their counterclaim and paid the fee at 3:42 pm on 26 September 2025. They emailed it to the builder's solicitor at 4:21 pm, that is 21 minutes after the 4:00 pm deadline. No response came from the builder by 10 October. On 21 October 2025 the home owners asked the tribunal for a decision by default. The builder filed a short response to the counterclaim on 24 October 2025, admitting some paragraphs and not admitting the rest.

What each side wanted

The home owners argued that their counterclaim was itself an application starting a separate proceeding, because it was accepted and paid for, so the rules gave the builder 14 days to respond; when no response came they said they had an accrued right to a decision by default, and that being 21 minutes late with service was trivial and did not matter. They also argued the builder's eventual three-line response was not a real response and that the builder's conduct was causing them disadvantage, which should justify default judgment and indemnity costs. The builder argued that a counterclaim is only a step inside the existing case, not a separate application, so the default-judgment sections of the QCAT Act could not apply to it at all; and that because the home owners had missed the 4:00 pm service deadline in the tribunal's own order, the obligation on the builder to respond by 10 October never arose. The builder asked that the request be refused with costs and that the case be given directions to get it to a hearing.

What the tribunal decided

The tribunal refused the home owners' Request for Decision by Default filed on 21 October 2025, made in terms of the counterclaim filed on 26 September 2025.

The tribunal ordered the home owners to pay the builder's costs of meeting the Request for Decision by Default. If the costs are not agreed within 28 days of the order, they are to be assessed under the Scale of Costs in Schedule 2, Part 3 of the Uniform Civil Procedure Rules 1999 (Qld) by a costs assessor appointed by the Registrar of the Tribunal. No dollar figure was fixed.

The tribunal also listed the case for a directions hearing at 10:30 am on Monday 9 November 2026, directed that the parties' legal representatives attend by video-link over Microsoft Teams, and directed the parties to be ready to address what orders are needed to take the case promptly to a full hearing.

Why the tribunal decided it that way

The tribunal's main reason was about how the legislation fits together. Reading the Queensland Building and Construction Commission Act 1991 and the QCAT Act as a whole, there was only one building dispute here, and only one application: the builder's original claim. The counterclaim raised the same dispute about who lawfully ended the contract, so it was not a fresh application under section 33 of the QCAT Act and paying the counterclaim fee did not start a separate case. It was a step inside the existing case. Rule 51 of the QCAT Rules says a counterclaim must be dealt with in the proceeding; it treats the counterclaiming party as the applicant for that part only, and does not turn the counterclaim into a separate proceeding. Because sections 50 and 50A of the QCAT Act (decision by default for a debt, and for unliquidated damages) apply to the application that started the proceeding, the tribunal held there is no power to give default judgment on a counterclaim.

The tribunal also decided the point the parties had argued about most. The 14-day response period in rule 44 of the QCAT Rules did not apply, because the home owners had not made their counterclaim in the normal way under rules 48 and 50, attached to their response. Their counterclaim only came about because of the tribunal's own direction of 4 September 2025, made under section 62 of the QCAT Act. That direction required filing and service by 4:00 pm on 26 September, and the builder's duty to respond by 10 October was expressly conditional on the home owners doing that. Service at 4:21 pm did not satisfy the order, so the builder's obligation never arose and there was no default at all when the request was filed. The tribunal noted that section 61 of the QCAT Act lets a party ask for more time, even after the deadline has passed, but the home owners did not apply for that.

On the smaller arguments, the tribunal held that the principal registrar's power to give a default decision under sections 50(3) and 50A(4) is an administrative power, but it does not stop the tribunal itself from deciding a request that is not straightforward; dealing with it in a hearing, with both sides heard, was the fairer and cheaper course. The argument about whether the power is administrative or jurisdictional made no difference to the result.

The published text ends part-way through the tribunal's discussion of whether service by email on the builder's solicitor was valid, so that part of the reasoning is not available here.

What this means if you are in a similar position

This decision shows how strictly a tribunal can read its own directions. If you are in a similar position, a deadline in a tribunal order is treated as a real cut-off, and a date with a time on it means that time: service 21 minutes late was enough for the tribunal to find that the other side's duty to respond never started. It also shows that where one order is conditional on another being met first, missing the first step can remove the obligation you were relying on. The decision notes that the QCAT Act allows a party to ask for a time limit to be extended even after it has passed, and that this was not done here.

It also shows the difference between a claim and a counterclaim in QCAT. A counterclaim is handled inside the existing case rather than as a separate case of its own, which on this reasoning means the default-judgment provisions do not reach it. If you are defending a tribunal claim and want to claim money back, the ordinary route under the rules is to include the counterclaim in or with your response, rather than running a separate claim elsewhere.

The decision is also a reminder that a failed step can cost money: the home owners were ordered to pay the builder's costs of answering the request, with the amount to be assessed if not agreed within 28 days. In a building money dispute of this kind, the step most people take first is a written demand or notice that sets out the amount claimed and the contract terms it rests on, with any tribunal application coming after that.

How to apply: our step-by-step guide to a QCAT application. More decisions: QCAT cases and builders and building defects.

Source: Contrast Constructions Pty Ltd v Allen & Anor (No 2) [2026] QCAT 516 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.