Agius v Queensland Building and Construction Commission - [2023] QCATA 148

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Agius v Queensland Building and Construction Commission & Anor [2023] QCATA 148

PARTIES:

MARK ELLIOTT AGIUS

(applicant/appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(FIRST RESPONDENT)

GEDOUN CONSTRUCTIONS PTY LTD

(second respondent)

APPLICATION NO/S:

APL244-21

ORIGINATING APPLICATION NO/S:

GAR140-21

MATTER TYPE:

Appeals

DELIVERED ON:

2 November 2023

HEARING DATE:

11 May 2023

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Fitzpatrick

ORDERS:

1.   Leave to appeal is granted.

2.   The decision of the Tribunal of 4 August 2021 is set aside, and the following order is made in substitution.

3.   The preliminary issue is not suitable for determination so that the preliminary issue proceeding is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – Where a preliminary issue as to whether work was “building work” in whole or in part was determined - Whether there is a reasonably arguable case of error on the part of the Tribunal below - Whether the determination of the preliminary issue in the Tribunal below should stand

Queensland Building and Construction Commission Act 1991 (Qld) s 72, sch 2

Queensland Building and Construction Commission Regulation 2018 (Qld) s 5(2), sch 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 142(3), 146, 147

Byrne v People Resourcing (Qld) Pty Ltd & Ors [2014] QSC 039

Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446
Glen Williams Pty Ltd v Queensland Building Service Authority [2012] QAT 127
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty LTd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Pickering v McArthur [20005] QCA 294
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495

Rintoul v State of Queensland & Ors [2018] QCA 20

APPEARANCES & REPRESENTATION:

Applicant:

A Tindall, instructed by Australian Law Partners.

First Respondent:

SE Seefeld, instructed by Norton Rose Fullbright.

REASONS FOR DECISION

This matter is one of a number of matters involving the parties, arising out of the construction of a house for the applicant Mr Agius, by the builder Gedoun Constructions Pty Ltd. In tandem with these proceedings Mr Agius has sought a remedy against the builder for breach of statutory warranties, which has been determined by the Tribunal in his favour.[1] That decision was made after the decision below, the subject of this application for leave to appeal or appeal. The building dispute decision is the subject of an appeal, which to date has not yet been determined. Although of some relevance to this appeal, I have not taken into account the findings in the proceeding against the builder, because the task for me is not to determine the correct and preferable decision in the review application. The issue for me is whether the determination of a preliminary point in the Tribunal below should stand.
[1]Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446.
Mr…

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.

Keep reading for free

Create a free CaseChat account to read Agius v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QCATA 148
Decision Date: 2 November 2023

CaseChat Overview and Summary

The case of Agius v Queensland Building and Construction Commission involved the applicant, Agius, seeking leave to appeal a decision made by the Tribunal. The dispute centred on a preliminary issue regarding whether certain work was classified as "building work" in whole or in part. The Tribunal had ruled on this preliminary issue, determining that it was suitable for determination, and the applicant was dissatisfied with this ruling. The matter came before the court to determine whether there was a reasonably arguable case of error on the part of the Tribunal and whether the determination of the preliminary issue should stand.

The legal issues that the court was required to decide were whether the applicant had a reasonably arguable case of error on the part of the Tribunal and whether the determination of the preliminary issue was appropriate. The court had to consider whether the Tribunal's decision was correct and whether there was a basis for an appeal. The court also had to examine whether the preliminary issue was suitable for determination and whether the proceeding should be dismissed.

The court found that there was a reasonably arguable case of error on the part of the Tribunal. The court held that the preliminary issue was not suitable for determination and that the proceeding was, therefore, dismissed. The court granted leave to appeal and set aside the decision of the Tribunal, substituting it with an order dismissing the preliminary issue proceeding. The court concluded that the determination of the preliminary issue was not appropriate and that the proceeding should not have been determined by the Tribunal.

The court made orders granting leave to appeal, setting aside the decision of the Tribunal, and dismissing the preliminary issue proceeding. The court held that the determination of the preliminary issue was not suitable for determination and that the proceeding should be dismissed. The court's decision highlights the importance of ensuring that preliminary issues are appropriately determined and that the correct legal standards are applied in such proceedings.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The decision of the Tribunal of 4 August 2021 is set aside, and the following order is made in substitution.

3. The preliminary issue is not suitable for determination so that the preliminary issue proceeding is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.