Alderton & Anor v Wide Bay Constructions Pty Ltd

CITATION:

Alderton & Anor v Wide Bay Constructions Pty Ltd [2017] QCATA 147

PARTIES:

Sally Alderton
Simon 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
Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Cachia v Grech [2009] NSWCA 232
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Ericson v Queensland Building and Construction Commission [2014] QCA 297
John Urquhart t/as Hart Renovations v Partington [2016] QCA 87
Lida Build Pty Ltd v Miller [2010] QCATA 17
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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…