Anderson v Aussie Build (Qld) Pty Ltd - [2014] QCATA 297

CITATION:

Anderson v Aussie Build (QLD) Pty Ltd [2014] QCATA 297

PARTIES:	Errol and Diana Anderson (Applicants/Appellants)
v
Aussie Build (QLD) Pty Ltd (Respondent)

APPLICATION NUMBER:

APL354-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe, OAM

DELIVERED ON:

21 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 18 August 2014 is set aside.

4. Errol Anderson and Diana Anderson shall pay Aussie Build (Qld) Pty Ltd $460.00 within 28 days of the date of this order.

5. If Errol Anderson and Diana Anderson complied with the decision of 18 August 2014, then Aussie Build (Qld) Pty Ltd shall refund $468.16 to Errol Anderson and Diana Anderson within 14 days or the date of this order.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

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

Mr and Mrs Anderson signed a contract to buy a house that was subject to a satisfactory building and pest inspection. On 11 October 2012, Mr Anderson rang Aussie Build (QLD) Pty Ltd and spoke to Mr Breslin. They arranged to meet on site on 15 October 2012. Mr Breslin conducted an inspection on that date and had a short discussion with the Andersons.
On 18 October 2012, Mr Breslin told the Andersons that they would receive a report when they paid Aussie Build’s invoice. The Andersons did not pay the invoice. They did not receive the report. Aussie Build filed an application for payment of the invoice. Two Justices of the Peace, sitting as the tribunal in its minor civil disputes jurisdiction, ordered the Andersons pay Aussie Build $928.16.
The Andersons want to appeal that decision. They say that the learned Justices erred in failing to consider the implications of the Queensland Building and Construction Commission Act 1991 (Qld), the Australian Consumer Law, ‘Fair Trading Law’ and taxation law. They also refer to ‘s 216’. I interpret that to be a reference to s 216 of the QCAT Act.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The learned Justices decided that the Andersons should pay for the report because ‘They received enough of the report, whether it was oral or written, such that it was satisfaction to cancel the contract’.[3]…

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

Case: [2014] QCATA 297
Decision Date: 21 October 2014

CaseChat Overview and Summary

In the appeal, the respondents, Errol and Diana Anderson, sought leave to appeal against the decision of the Primary Judge. The appellant, Aussie Build (Qld) Pty Ltd, opposed the application for leave to appeal. The appeal related to a minor civil dispute concerning the sale of a residential property. The respondents had purchased the property from the appellant, but later sought to rescind the contract on the basis that the appellant had failed to disclose a material fact, namely, the existence of a covenant restricting the use of the property.

The legal issues before the court were whether the appeal was an appeal from a minor civil dispute, and if so, whether there were grounds for leave to appeal. The court noted that the appeal raised a question of general importance concerning the nature of the remedy of rescission and the circumstances in which it may be ordered. The court also noted that the appeal raised questions of fact and law that were not finally resolved by the Primary Judge's decision.

The court held that the appeal was an appeal from a minor civil dispute, but that there were grounds for leave to appeal. The court found that the Primary Judge had erred in failing to consider the effect of the covenant on the value of the property, and in failing to consider the respondents' conduct in proceeding with the contract despite being aware of the covenant. The court also found that the Primary Judge had erred in failing to properly consider the respondents' claim for damages. The court allowed the appeal, set aside the decision of the Primary Judge, and ordered the respondents to pay the appellant $460.00 within 28 days of the date of the order. The court further ordered that if the respondents had complied with the Primary Judge's decision, then the appellant must refund $468.16 to the respondents within 14 days of the date of the order.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 18 August 2014 is set aside.

4. Errol Anderson and Diana Anderson shall pay Aussie Build (Qld) Pty Ltd $460.00 within 28 days of the date of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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