CITATION: | Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147 |
PARTIES: | Sally Alderton (Applicants/Appellants) |
| v | |
| Wide Bay Constructions Pty Ltd t/as Dixon Homes Hervey Bay (Respondent) | |
APPLICATION NUMBER: | APL131-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
DELIVERED ON: | 24 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave is granted for both parties to be legally represented in the proceeding. 2. The application of Sally Alderton and Simon Alderton for leave to file fresh evidence is refused. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where leave for legal representation was granted in the original proceeding – where there is some complexity in the grounds of appeal – where the applicants submit that they will be disadvantaged – whether leave should be given for parties to have legal representation APPEAL AND NEW TRIAL –– APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where applicants seek leave to adduce new evidence on appeal – whether the evidence could have been available with reasonable diligence in the original proceeding – whether the fresh evidence is credible Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 43, s 146, s 147 Albrecht v Ainsworth & Ors [2015] QCA 220 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Sally Raub (now known as Sally Alderton) and Simon Alderton filed an application for a domestic building dispute against Widebay Constructions Pty Ltd t/as Dixon Homes Hervey Bay (Widebay Constructions). The Tribunal determined that application and final orders were made by the Tribunal on 28 March 2017.
Subsequently, Mr and Ms Alderton filed an application for leave to appeal or appeal the Tribunal’s decision. That application has not yet been determined.
In the course of the appeal proceedings, Widebay Constructions filed an application seeking leave for legal representation. I made orders granting leave for both parties to be legally represented in the proceeding.[1]
[1]Appeal Tribunal Directions dated 18 October 2017.
Mr and Ms Alderton also filed a miscellaneous application seeking leave to rely upon fresh evidence. I made orders refusing that application.[2]
[2]Appeal Tribunal Directions dated 24 November 2017.
Both determinations were made on the basis of the evidence and submissions filed by the parties and without an oral hearing. Mr and Mrs Alderton have now…
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- Case
- [2017] QCATA 147
- Decision Date
CaseChat Overview and Summary
The court considered the complexity of the grounds of appeal and the potential disadvantage the applicants would face without legal representation. It was noted that leave for legal representation had already been granted in the original proceeding, and the applicants argued that the grounds of appeal were complex enough to warrant such representation in the appeal. The court concluded that the applicants would indeed be disadvantaged without legal representation and granted leave for both parties to be legally represented.
Regarding the fresh evidence, the applicants sought to introduce evidence that they claimed could not have been obtained with reasonable diligence during the original proceeding. The court examined whether the fresh evidence was credible and whether it could have been available with reasonable diligence at the time of the original proceeding. The court found that the evidence could have been obtained with reasonable diligence and was not credible enough to warrant its admission. Consequently, the application for leave to file fresh evidence was refused.
Orders
Orders of the court
1. Leave is granted for both parties to be legally represented in the proceeding.
2. The application of Sally Alderton and Simon Alderton for leave to file fresh evidence 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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