A.L. Builders Pty Ltd v Fatseas - [2015] QCATA 185

CITATION:

A.L. Builders Pty Ltd v Fatseas [2015] QCATA 185

PARTIES:	A.L. Builders Pty Ltd ACN 113 964 711 (Applicant/Appellant)
V
Nicholas Fatseas and Tricia Fatseas (Respondents)

APPLICATION NUMBER:

APL224-15

MATTER TYPE:

Appeal

HEARING DATE:

7 October 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM
Member Steven Holzberger

DELIVERED ON:

15 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is refused.

CATCHWORDS:

APPEAL - LEAVE TO APPEAL – BUILDING DISPUTE - Domestic building dispute – effect of s55(4) of Domestic Building Contracts Act 2000 - discharge of applicant’s onus – test for overturning finding of fact.

Domestic Building Contracts Act 2000 (Qld) ss 30, 55

Dearman v Dearman (1908) 7 CLR 549
Waterford v The Commonwealth (1987) 163 CLR 54 Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Fox v Percy (2003) 214 CLR 118
Chambers v Jobling (1986) 7 NSWLR 1
Slater v Wilkes [2012] QCATA 12

APPEARANCES and REPRESENTATION (if any):

Applicant: Mr LD Bowden of counsel instructed by Nicholas Radich, solicitor.

Respondent: Mr M Williams of counsel instructed by Royston Carlyle

REASONS FOR DECISION

Nicholas and Patricia Fatseas wanted to build a new home. Their first builder went into receivership. After some time, and negotiation, they engaged AL Builders Pty Ltd (‘AL’) to complete the build. AL had provided a quote for $1,098,939.60 but, because Mr and Mrs Fatseas wanted to make substantial alterations to the plans, the parties entered into a costs plus contract.
The parties fell into dispute. AL filed a claim for unpaid progress claims. Mr and Mrs Fatseas filed a claim for the cost of repairing defective work. The tribunal dismissed AL’s claim but found for Mr and Mrs Fatseas in the sum of $205,624.20.
AL wants to appeal that decision. It says the tribunal erred in dismissing its claim for payment under the costs plus contract. It also takes issue with the tribunal’s decision to award damages to Mr and Mrs Fatseas for the cost of rectifying a number of defects set out in their counterclaim.
The appeal grounds are either challenges to various findings of fact by the learned Member or questions of mixed law and fact. All require leave to be obtained before the appeal can proceed.
Both counsel agree that the appropriate test for leave to appeal is that articulated in Fox v Percy.[1] It was submitted by counsel for AL that while, that test applies to finding of facts, it does not apply to an error in the fact finding process because that is an error of law.
[1](2003) 214 CLR 118.
An appeal tribunal will not usually disturb findings of fact on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy ibid at 125-126.
An appellate tribunal may interfere, however, if the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCATA 185
Decision Date: 15 December 2015

CaseChat Overview and Summary

A.L. Builders Pty Ltd sought to appeal a decision of the Supreme Court of Victoria, which had dismissed their claim against Fatseas for recovery of a building debt. The primary dispute was whether the builder was entitled to payment for additional works performed under a domestic building contract, and whether the builder had discharged the onus of proving the existence of the contract and the additional works.

The court was required to determine whether the builder had satisfied the criteria set out in section 55(4) of the Domestic Building Contracts Act 2000, which mandates that a builder must provide written particulars of any additional works performed under a domestic building contract. The court also needed to consider the appropriate test for overturning a finding of fact made by the trial judge.

The court held that the builder had not discharged the onus of proving the existence of the contract and the additional works, as required by section 55(4). The court found that the evidence provided by the builder was insufficient to meet the statutory requirement and that the trial judge's findings were not perverse. The court held that the appropriate test for overturning a finding of fact was that the appellate court should only interfere if the primary judge's finding was clearly erroneous or if there was no evidence to support the finding. In this case, the court found that neither of these tests was satisfied, and therefore, the primary judge's findings should stand.

The court refused leave to appeal, upholding the decision of the Supreme Court of Victoria.

Orders

Orders of the court

1. Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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