Alderton v Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay - [2018] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

Alderton & Anor v Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay [2018] QCA 149

PARTIES:

SIMON ALDERTON
(first applicant)
SALLY ALDERTON
(second applicant)
v
WIDE BAY CONSTRUCTIONS PTY LTD trading as DIXON HOMES HERVEY BAY
ACN 080 402 302
(respondent)

FILE NO/S:

Appeal No 3204 of 2018
QCATA No 131 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2017] QCATA 147

DELIVERED ON:

29 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2018

JUDGES:

Sofronoff P and Gotterson JA and Ryan J

ORDERS:

Application refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – WHEN NO APPEAL LIES – where the applicants began proceedings in QCAT seeking rectification of defective works to their home to the value of $18,500 from the respondent – where the applicants’ claim was dismissed – where the applicants appealed the decision of the Tribunal to the Appeal Tribunal – where the applicants made an application to the Appeal Tribunal to adduce further evidence – where the application to adduce further evidence was refused – where no determination as to whether leave to appeal will be granted has been made by the Appeal Tribunal – where s 150 Queensland Civil and Administrative Tribunal Act 2009 provides that an appeal to the Court of Appeal from the QCAT Appeal Tribunal only lies in respect of a decision of the Appeal Tribunal to refuse leave to appeal, a cost-amount decision or the final decision – where the applicants are attempting to appeal an interlocutory order – where there is no right of appeal from an interlocutory order of the Appeal Tribunal except where such an interlocutory order is appealed as part of a substantive appeal against the final decision of the Appeal Tribunal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150

COUNSEL:

The first applicant appeared on his own behalf
The second applicant appeared on her own behalf
No appearance for the respondent

SOLICITORS:

The first applicant appeared on his own behalf
The second applicant appeared on her own behalf
No appearance for the respondent

SOFRONOFF P: This is an application for extension of time for leave to appeal against a decision of the Queensland Civil and Administrative Tribunal.
On 10 December 2007 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 about six defects. The Commission issued the respondent with a Notice to Rectify or Complete in relation to two of these and advised the applicants that the other four items 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…

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

AGLC: Alderton v Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay [2018] QCA 149
Case: [2018] QCA 149
Decision Date: 29 June 2018

CaseChat Overview and Summary

The applicants, Alderton, sought rectification of defective works to their home from Wide Bay Constructions Pty Ltd, trading as Dixon Homes Hervey Bay, in the Queensland Civil and Administrative Tribunal (QCAT). The applicants' claim was dismissed, and they appealed to the QCAT Appeal Tribunal. The applicants subsequently sought to adduce further evidence to the Appeal Tribunal, which was refused. They now seek to appeal the interlocutory order refusing the application to adduce further evidence.

The primary legal issue before the court was whether the applicants could appeal the interlocutory order refusing their application to adduce further evidence. The court had to determine whether an appeal lay from the interlocutory order of the QCAT Appeal Tribunal. This involved interpreting section 150 of the Queensland Civil and Administrative Tribunal Act 2009, which outlines the circumstances in which an appeal to the Court of Appeal from the QCAT Appeal Tribunal is permissible.

The court found that section 150 of the Act provides that an appeal to the Court of Appeal from the QCAT Appeal Tribunal only lies in respect of a decision of the Appeal Tribunal to refuse leave to appeal, a cost-amount decision or the final decision. As no determination as to whether leave to appeal will be granted had been made by the Appeal Tribunal, and the interlocutory order was not part of a substantive appeal against the final decision of the Appeal Tribunal, the applicants could not appeal the interlocutory order. The court concluded that the applicants were attempting to appeal an interlocutory order, which is not permissible except where such an interlocutory order is appealed as part of a substantive appeal against the final decision of the Appeal Tribunal.

The court dismissed the application for leave to appeal, and the final orders were that the application was refused. The court found that the applicants did not have the right to appeal the interlocutory order refusing their application to adduce further evidence. The court’s decision hinged on the interpretation of section 150 of the Act, which limits the circumstances in which an appeal to the Court of Appeal from the QCAT Appeal Tribunal is permissible.

Orders

Orders of the court

Application refused.

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.

CITATION:	Alderton & Anor v Wide Bay Constructions Pty Ltd trading as Dixon Homes Hervey Bay [2018] QCA 149
PARTIES:	SIMON ALDERTON (first applicant) SALLY ALDERTON (second applicant) v WIDE BAY CONSTRUCTIONS PTY LTD trading as DIXON HOMES HERVEY BAY ACN 080 402 302 (respondent)
FILE NO/S:	Appeal No 3204 of 2018 QCATA No 131 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal – [2017] QCATA 147
DELIVERED ON:	29 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2018
JUDGES:	Sofronoff P and Gotterson JA and Ryan J
ORDERS:	Application refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – WHEN NO APPEAL LIES – where the applicants began proceedings in QCAT seeking rectification of defective works to their home to the value of $18,500 from the respondent – where the applicants’ claim was dismissed – where the applicants appealed the decision of the Tribunal to the Appeal Tribunal – where the applicants made an application to the Appeal Tribunal to adduce further evidence – where the application to adduce further evidence was refused – where no determination as to whether leave to appeal will be granted has been made by the Appeal Tribunal – where s 150 Queensland Civil and Administrative Tribunal Act 2009 provides that an appeal to the Court of Appeal from the QCAT Appeal Tribunal only lies in respect of a decision of the Appeal Tribunal to refuse leave to appeal, a cost-amount decision or the final decision – where the applicants are attempting to appeal an interlocutory order – where there is no right of appeal from an interlocutory order of the Appeal Tribunal except where such an interlocutory order is appealed as part of a substantive appeal against the final decision of the Appeal Tribunal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150
COUNSEL:	The first applicant appeared on his own behalf The second applicant appeared on her own behalf No appearance for the respondent
SOLICITORS:	The first applicant appeared on his own behalf The second applicant appeared on her own behalf No appearance for the respondent