Alderton v Wide Bay Constructions Pty Ltd - [2019] QCA 84

[2019] QCA 84

COURT OF APPEAL

GOTTERSON JA
McMURDO JA
MULLINS J

Appeal No 1094 of 2019
QCATA No 193 of 2018

SIMON ALDERTON Applicants
SALLY ALDERTON

WIDE BAY CONSTRUCTIONS PTY LTD Respondent
ACN 080 402 302
t/as DIXON HOMES HERVEY BAY

BRISBANE

WEDNESDAY, 15 MAY 2019

JUDGMENT

GOTTERSON JA: This is an application for leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (“QCAT”) constituted by Member Paratz on 2 January 2019. That decision is APL193-18. On 10 December 2017, the applicants entered into a contract with the respondent for the building of a home on their property. Construction was completed on 6 November 2008. On 19 November 2014, the applicants complained to the Queensland Building and Construction Commission (“the Commission”) about six defects. The Commission issued the respondent with a notice to rectify or complete in relation to two of those defects and advised the applicants that the other four had been investigated. One had been found to have been rectified and there was insufficient evidence to reveal defective construction in relation to the other three.

On 22 April 2015, the Commission advised the applicants that the respondent had attended to the two items which had been the subject of the notice. On 21 May 2015, the applicants began proceedings in QCAT seeking rectification of defective work to the value of $18,500. They also sought a review of the decision of the Commission which had been made on 12 January 2015. Their claim was heard in October 2016 and dismissed on 28 March 2017.

The applicants then sought leave to appeal that decision. In the course of that proceeding before the Appeal Tribunal, the applicants filed an application seeking leave to rely upon fresh evidence. That application was numbered APL131-17. The Appeal Tribunal constituted by Senior Member Howard refused the application on 24 November 2017. On 7 February 2018, Senior Member Howard published reasons for the refusal.

Next, the applicants sought from this Court an extension of time within which to appeal that refusal. Their application was itself refused on 29 June 2018. The citation for the refusal is [2018] QCA 149. The substantive reason for the refusal was that the decision of the Appeal Tribunal constituted by Senior Member Howard refusing leave to the applicants to lead further evidence was not a final decision. Hence, it was not an appealable decision under s 150(2) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) or any other provision thereof.

The applicants then sought to appeal the decision of the Appeal Tribunal constituted by Senior Member Howard by another means. On 22 June 2018, they filed in QCAT two applications, both of which were numbered APL193-18. One of them was an application for “leave from the internal Appeal Tribunal to appeal an interlocutory decision of the Appeal Tribunal”. The interlocutory decision in question was that of the Appeal Tribunal constituted by Senior Member Howard. 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.

Continue reading Alderton v Wide Bay Constructions Pty Ltd

Details

AGLC: Alderton v Wide Bay Constructions Pty Ltd [2019] QCA 84
Case: [2019] QCA 84
Decision Date: 15 MAY 2019

CaseChat Overview and Summary

In this case, the applicants, Simon and Sally Alderton, sought to appeal a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) to this Court. They argued that the tribunal had erred in law in dismissing their application for leave to appeal from a previous decision of the tribunal and refusing to extend the time within which they could file an appeal. The applicants contended that the tribunal's decision was based on an incorrect understanding of the available avenues of appeal under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and that their proposed appeal raised viable prospects of success on a question of law. The respondents, Wide Bay Constructions Pty Ltd, opposed the application, arguing that the tribunal's decision was correct and that the applicants had no valid basis for appeal. The court was required to determine whether the applicants had established a case for leave to appeal from the tribunal's decision and whether the tribunal had indeed erred in law.

The court considered the legal issues raised by the applicants and found that the tribunal's decision was correct. The court held that the applicants' proposed appeal was incompetent because it was not an appeal from a decision of the tribunal but rather an attempt to appeal from a decision of the Appeal Tribunal itself, which was not possible under the QCAT Act. The court further found that the tribunal's decision was not based on an incorrect understanding of the law but rather on the correct interpretation of the QCAT Act. The applicants had not demonstrated any viable prospects of success on a question of law, and the court was not persuaded that the tribunal had erred in its interpretation of the law. Therefore, the court dismissed the applicants' application for leave to appeal and their application for leave to adduce further evidence.

The court dismissed the applicants' application for leave to appeal the decision of the Appeal Tribunal of QCAT. The court also dismissed the applicants' application for leave to adduce further evidence. The court held that the tribunal's decision was correct and that the applicants had not established a case for leave to appeal on a question of law. The court found that the applicants' proposed appeal was incompetent because it was not an appeal from a decision of the tribunal but rather an attempt to appeal from a decision of the Appeal Tribunal itself, which was not possible under the QCAT Act. The court further held that the tribunal's decision was not based on an incorrect understanding of the law but rather on the correct interpretation of the QCAT Act. The court found that the applicants had not demonstrated any viable prospects of success on a question of law and that the tribunal's decision was correct. Therefore, the court dismissed the applicants' application for leave to appeal and their application for leave to adduce further evidence. The orders of the Court were that the application for leave to appeal was dismissed and the application for leave to adduce further evidence was dismissed.

Orders