Bakker & Kramer v Richards Projects Pty Ltd

Case [2014] QCATA 99


CITATION: Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99
PARTIES: Jan Bakker and Anne Kramer
(Appellants)
v
Richards Projects Pty Ltd
(Respondent)
APPLICATION NUMBER: APL338-13
MATTER TYPE: Appeals
HEARING DATE: 12 March 2014
HEARD AT: Brisbane
DECISION OF: Senior Member O’Callaghan
Member Burke
DELIVERED ON: 28 April 2014
DELIVERED AT: Brisbane
ORDERS MADE:

1.    The Appellants’ appeal on the ground that they were denied natural justice in the presentation of their defence in application BDL232-12 is allowed.

2.    The decision of the Tribunal in relation to application BDL232-12 is set aside.

3.    Application BDL232-12 is to be returned to the Tribunal for reconsideration with the hearing of any additional material relevant to the proceedings.

4.    The Appellants’ application for leave to appeal on the ground that there has been an error of fact in the Member’s decision is refused.

CATCHWORDS:

APPEALS – Question of law – Natural justice – Whether party afforded natural justice in the presentation of its defence

LEAVE TO APPEAL – Errors of fact – Whether decision-maker made errors of fact in interpretation of expert evidence

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 95, s 142(1), s 142(3)(b), s 143(2)(b), s 147(2)

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Kioa v West (1985) 159 CLR 550
Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219
Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Jan Bakker and Ms Anna Kramer represented by Mr Bakker
RESPONDENT: Richards Projects Pty Ltd represented by Mr Richards

REASONS FOR DECISION

Nature of the Proceedings and Jurisdiction

  1. This is an application pursuant to s 142(1) and s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) for leave to appeal and, if given, appeal against a decision of the Queensland Civil and Administrative Tribunal (“the Tribunal”) in its jurisdiction relating to building matters.

  2. Pursuant to the application filed 8 August 2013, the Appellants, Jan Bakker and Anna Kramer (“Mr Bakker and Ms Kramer”) have sought leave to appeal, or appeal, the reasons for decision of the Tribunal delivered on 26 July 2013 (“the decision”) on the following grounds:

    The Member made several mistakes about the technical side of our case and his own interpreting of facts.

    The Member did not allowed (sic) us to bring our case forward and defend it.

  3. The dispute, the subject of the decision, arose out of a Master Builders contract dated 4 June 2010 entered into between Mr Bakker and Ms Kramer, as owners, and the Respondent, Richards Projects Pty Ltd (“Richards Projects”), as contractor, for the construction of a new high set framed brick veneer dwelling at 10 Barton Street, Reedy Creek Queensland (“the site”) for the contract sum of $421,095.00 (“the contract”).

  4. On 10 February 2012, Mr Bakker and Ms Kramer commenced proceedings in the Tribunal (“BDL048-12”) seeking the…

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AGLC
Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99
Case
[2014] QCATA 99
Decision Date

CaseChat Overview and Summary

Bakker and Kramer have appealed against a decision made by Richards Projects Pty Ltd in the Queensland Civil and Administrative Tribunal. The dispute revolves around the rectification of defects in work carried out by Richards Projects and the failure of Bakker and Kramer to pay the balance of the contract. The appeal focuses on whether Bakker and Kramer were afforded natural justice in the presentation of their defence and whether there was an error of fact in the Member’s interpretation of expert evidence.

The legal issues before the court were whether the Tribunal's handling of the proceedings denied Bakker and Kramer the opportunity to present their defence in accordance with natural justice and whether there was an error of fact in the Member’s interpretation of the expert evidence. The Appellants argued that the Tribunal did not allow them to address all the issues in dispute, particularly the amounts claimed by Richards Projects. They contended that they were prevented from presenting their case fully and were not given the opportunity to lead evidence about other matters, including a debt action. The Appellants also argued that the Member misinterpreted the expert evidence, which led to an incorrect understanding of the Appellants' position.

The court found that the Appellants were indeed denied natural justice in the presentation of their defence. The Tribunal did not allow Bakker and Kramer to address all the issues in dispute, particularly the amounts claimed by Richards Projects, and limited their opportunity to present their case. The court noted that the Member did not understand the full scope of the Appellants' defence and did not consider all the relevant material. Furthermore, the court held that the Appellants' application for leave to appeal on the ground of error of fact was not substantiated, as the Member’s interpretation of the expert evidence was not found to be erroneous.

The court allowed the Appellants’ appeal on the ground that they were denied natural justice in the presentation of their defence. The decision of the Tribunal in relation to the application was set aside, and the case was returned to the Tribunal for reconsideration with the hearing of any additional material relevant to the proceedings. The Appellants’ application for leave to appeal on the ground of error of fact was refused.

Orders

Orders of the court

1. The Appellants’ appeal on the ground that they were denied natural justice in the presentation of their defence in application BDL232-12 is allowed.

2. The decision of the Tribunal in relation to application BDL232-12 is set aside.

3. Application BDL232-12 is to be returned to the Tribunal for reconsideration with the hearing of any additional material relevant to the proceedings.

4. The Appellants’ application for leave to appeal on the ground that there has been an error of fact in the Member’s decision is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Further s 95 of the QCAT Act prescribes the obligations on the Tribunal in the taking of evidence as follows:95Evidence(1)The tribunal must allow a party to a proceeding a reasonable opportunity to –(a)call or give evidence; and (b)examine, cross-examine and re-examine witnesses; and (c)make submissions to the tribunal. It is submitted by Mr Bakker and Ms Kramer that the whole of the 2 day hearing dealt with the dispute regarding the defective work and that the Member prevented Mr Bakker from addressing the issues in dispute regarding the amounts claimed by Richards Projects. On day 2 of the hearing, the topic of another claim other than the rectification claim was raised. The following exchange between the Member and Mr Bakker (who was at the time being cross–examined by Mr Richards on behalf of Richards Projects) took place:[20][20]Transcript at lines 33 to 46 of p 96 and lines 1 to 40 of p 97 of the Transcript Day 2; Transcript at lines 1 to 8 of p 98 of the Transcript Day 2.Member: And after that, if you wish to make submissions, I think you can make it in writing. I think I understand. I don’t need your submissions……Mr Bakker: And the other claim?Member: Well, the other claim, you should really cover the matter. But it’s simply you haven’t paid the balance of the contract because, you say, there’s matters outstanding for rectification. Isn’t that right? --- No. There’s a whole story behind that Your Honour.Well ---Mr Richards: Is it in the evidence?Member: Well, I don’t know what the story is going to be.Mr Richards: Yes, no. I don’t know.Member: You had an opportunity when you gave evidence to lead evidence about the matter, and you haven’t done it? – No, I needed – we should do – we should do that one after this [indistinct]You’ve got two days set for this matter. Other people use the resources of the Tribunal. You’ve got two days as a building matter. Most people get one day. This is two days. You’ve filed material on it, have you not? --- Yes. This is ---Well, that matter will be – that material will be taken into account. I don’t understand what additional oral material you want to rely upon with respect to a debt action.Mr Richards: Your Honour, when could I ---Member: Wait on, let me get this clear. I mean you’ve got a minor debt claim. You were sued by Mr Richards because you didn’t pay the balance moneys. Now, I – understood from reading that file that your response was there’s matters that haven’t been attended to by the builder. Is that right?----Yes, that’s the basic----You weren’t going to pay the balance moneys because the builder hadn’t performed the contract?---No. Also because we are asking money from him.Because the builder hadn’t performed his contract and, on balance, he owed you money?---Yes.Well, that is being covered right now with this claim, surely. You don’t dispute that if everything had been done properly, you would owe Mr Richards the---?---No, no, no, no, no.You don’t dispute you would owe the balance money to Mr Richards if everything had been done properly?---No. Money comes---Yes, I don’t understand why you – you can’t say that – anyway, go on? ---Money owed by another way. Bills what we have paid for Mr Richards. Money what is still on the shared bank account. All those issues are in the file. …………………Member: Why didn’t you comply with the requirements of the Tribunal to file statements of evidence? You would have sworn an affidavit, put all the material before the Tribunal, and then we could just limit it to cross-examination. That was ordered, and you haven’t complied?---We have not complied? We have You haven’t complied?---I’ve even wrote two weeks one story down and bring all the paperwork.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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