Appleton v Gas Strut Marine Pty Ltd - [2017] QCATA 41

CITATION:

Appleton v Gas Strut Marine Pty Ltd [2017] QCATA 41

PARTIES:	Ray Appleton (Applicant/Appellant)
v
Gas Strut Marine Pty Ltd (Respondent)

APPLICATION NUMBER:

APL340 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

4 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 21 July 2016 is set aside and the proceeding is remitted to the tribunal for rehearing.

4. Gas Strut Marine Pty Ltd may file any further evidence about the amount to which it may be entitled pursuant to s 42(4) of the Queensland Building and Construction Commission Act within 21 days of today’s date.

5. Ray Appleton may file and serve any evidence in response within 21 days of receipt of material from Gas Strut Marine Pty Ltd.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – where contract for replacement of actuators – where replacement of actuators required additional works – where additional works required QBCC licence – where appellant claimed invoices for works not payable because respondent was not licensed – where tribunal found invoices for works were payable – whether error – whether grounds for leave to appeal

Queensland Building and Construction Commission Act 1991 (Qld) s 42
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32 and 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1
Dart Holdings Pty Ltd v Total Concept Group Pty Ltd and Ors [2012] QSC 158
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
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

Ray Appleton lives on the top floor of a 31-storey high-rise complex at Surfers Paradise. During a storm in September 2014, the actuators to his windows were struck by lightning. The storm also caused water damage to the ceiling and around the windows. The body corporate insurer paid a sum of money to Mr Appleton and he arranged for the repairs through Gas Strut Marine Pty Ltd.
Mr Appleton paid Gas Strut $10,000. Gas Strut filed a claim for a further $11,329.88. The tribunal ordered Mr Appleton pay Gas Strut $9,045.33
Mr Appleton wants to appeal that decision. 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]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr Appleton says the tribunal erred in not considering s 42 of…

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: [2017] QCATA 41
Decision Date: 4 April 2017

CaseChat Overview and Summary

The case of Appleton v Gas Strut Marine Pty Ltd involved a dispute between the appellant, Ray Appleton, and the respondent, Gas Strut Marine Pty Ltd, concerning invoices for additional works performed in the course of replacing actuators. The matter was heard and determined by the Queensland Civil and Administrative Tribunal, with an appeal subsequently made to the Court. The appeal was heard by the Queensland Court of Appeal.

The central legal issue that the Court of Appeal had to address was whether the tribunal erred in finding that the invoices for additional works were payable, despite the respondent not holding the requisite QBCC licence. This issue required the Court to consider the contractual obligations of the parties, the necessity of the additional works, and the applicability of the Building and Construction Commission Act. The Court had to determine if the tribunal's decision was justified or if it contained an error that warranted the grant of leave to appeal.

In delivering the judgment, the Court of Appeal found that the tribunal had indeed erred in its determination. The Court held that the additional works performed by the appellant required a QBCC licence, and since the respondent did not hold such a licence, the invoices for those works were not payable. The Court further held that this error constituted a significant departure from the proper application of the law and warranted the grant of leave to appeal. Consequently, the Court allowed the appeal, set aside the tribunal's decision, and remitted the proceeding to the tribunal for rehearing. The Court also provided a timeframe for the parties to file further evidence related to the amount to which the respondent may be entitled.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 21 July 2016 is set aside and the proceeding is remitted to the tribunal for rehearing.

4. Gas Strut Marine Pty Ltd may file any further evidence about the amount to which it may be entitled pursuant to s 42(4) of the Queensland Building and Construction Commission Act within 21 days of today’s date.

5. Ray Appleton may file and serve any evidence in response within 21 days of receipt of material from Gas Strut Marine Pty Ltd.

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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