Bakker & Kramer v Richards Projects Pty Ltd
[2014] QCATA 99
•28 April 2014
| 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 |
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
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.
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.
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”).
On 10 February 2012, Mr Bakker and Ms Kramer commenced proceedings in the Tribunal (“BDL048-12”) seeking the sum of $50,000.00 for rectification of defective and incomplete work on the site (“the rectification claim”). In addition, Mr Bakker and Ms Kramer sought relief from payment of an amount of $13,525.00 claimed by Richards Projects in its final claim. The amount of the rectification claim was later amended to $120,315.00 in relation to defect items which were subsequently presented in the form of a Scott Schedule.[1]
[1]It is noted that in the Appellants’ submissions on appeal the amount claimed is $128,199.75 in relation to items 1, 2, 3, 4, 5, 10, 11, 12, 15, 20 and 31 in the Scott Schedule which were disputed.
In response to the rectification claim, Richards Projects filed a response and counterclaim on 2 May 2012 denying the rectification claim and seeking the amount of $13,070.00 owing under the contract plus interest in the sum of $3,336.00 as at 3 May 2012. In addition, Richards Projects claimed the sum of $1,436.00 for items which were to be supplied by the owners under the contract but were supplied by Richards Projects during construction.
On 14 February 2012, Richards Projects filed an application for a minor civil dispute – minor debt (“monetary claim”) claiming the amount outstanding under the contract in the sum of $17,408.00 including interest.[2] In a response to the monetary claim, Mr Bakker and Ms Kramer filed a response on 27 March 2012, denying that the amount claimed was owed and offering to release to Richards Projects any moneys then existing in a shared bank account.
[2]Case Number Q129/12 - The sum of $17,408.00 includes $13,070.00 owing under the contract for variations, $2,614.00 as interest owing to 30/1/12 and $1,724.00 for the supply of 2 in-wall cistern units which were owner supplied items under the contract but supplied by Richards Projects.
Subsequently, the monetary claim was transferred to the Building Matters list,[3] identified as BDL232-12, to be heard with the proceedings identified as BDL048-12, being the rectification claim, which had already been commenced by Mr Bakker and Ms Kramer.
[3]Proceedings Q129/12 was transferred from Southport to Brisbane to the Building Matters List as BDL232-12.
The two related matters, BDL048-12 and BDL232-12, were heard together by the Member.
Grounds of Appeal
Mr Bakker and Ms Kramer assert that there are 2 grounds upon which they seek leave to appeal or to appeal:
a) the first relates to the Member’s alleged failure to give Mr Bakker and Ms Kramer any opportunity to put their case in response to the monetary claim commenced by Richards Projects;
b) secondly, the Member made errors of fact or errors in the interpretation of the evidence in relation to the rectification claim.
In relation to the first ground, Mr Bakker and Mr Kramer submit that the whole of the proceeding before the Member concerned their claim in relation to the defective work and that they were never given the opportunity to produce the evidence which they submit had been provided to the Tribunal disputing the amount claimed by Richards Projects.
In relation to the second ground, Mr Bakker and Ms Kramer submit that the disputed items in the Scott Schedule[4] were considered by the Member but that in relation to the following items the Member has made errors of fact or errors in interpreting the technical evidence:
a) claim for demolition and rebuilding of the garage as a result of the reduction in size of the garage;[5]
b) cost of cleaning the paint marks on the colorbond roof including replacement of a damaged sheet;[6]
c) rectification of the gap between the concrete pavement at the right front side of the dwelling and the ground and misalignment of the concrete pavement and the wall;[7]
d) rectification of defective work in failing to provide a fall in the verandah floor;[8]
e) rectification of discolouration of grout in the tiled floor in main bathroom which is defective as a result of the failure to install water stops;[9]
f) rectification of water penetration into the garage;[10]
g) cost of rectification of paint and render defects.[11]
[4]A Scott Schedule was prepared as a joint expert report identifying the items still in dispute between the parties and any items agreed.
[5]Item 15 of the Scott Schedule.
[6]Item 4 of the Scott Schedule.
[7]Item 5 of the Scott Schedule.
[8]Item 10 of the Scott Schedule.
[9]Item 11 of the Scott Schedule.
[10]Item 20 of the Scott Schedule.
[11]Item 3 of the Scott Schedule.
Written submissions were provided by Mr Bakker and Ms Kramer in the following documents:
a) a document headed “Overview” filed 11 October 2013;
b) a document dated 7 May 2013 filed 11 October 2013;
c) a document which is an annotated version of the Members Reasons for Decision identifying the items which are the subject of the appeal;
d) a document dated 15 September 2013 relating to the defects in the verandah.
Mr Bakker relied upon, and expanded upon, the issues raised in those submissions at the oral hearing of the appeal.
Response to Grounds of Appeal
Richards Projects submits that Mr Bakker and Ms Kramer have not identified any error of law made by the Member in the Tribunal’s decision.
Further, Richards Projects submits in relation to the alleged errors of fact that:
a) Mr Bakker and Ms Kramer have failed to demonstrate that any errors of fact were made by the Member;
b) Mr Bakker and Ms Kramer have done nothing more than reiterate their point of view about the facts;
c) all the factual conclusions reached by the Member were reasonably available on the evidence;
d) Mr Bakker and Ms Kramer should not be granted leave to appeal on questions of fact because the grounds relied upon are an attempt to merely re-litigate the same issues which were argued before the Member.
Richards Projects provided a number of documents in response to the written submissions provided by Mr Bakker and Ms Kramer:
a) document headed “Response to Appellant’s Overview” attached to submissions dated 2 December 2013, filed 3 December 2013;
b) document headed “Response to Appellant’s Submission Marked “1” (top left side of page)”;
c) document headed “Response to Appellants Antedotes to QCAT Decision”;
d) document headed “Response to Appellants Submissions dated 15.09.13”.
Legal Considerations for Leave to Appeal
A party may appeal on a question of law without the Appeal Tribunal’s leave, unless the decision falls into one of the limited categories set out in s 142 of the QCAT Act.
A party may generally appeal to the Appeal Tribunal on a question of fact, or a question of mixed law and fact, once leave to appeal has been granted.[12] The application for leave to appeal must state the grounds upon which leave to appeal is sought.[13]
[12]QCAT Act, s 142(3)(b).
[13]QCAT Act, s 143(2)(b).
The distinction between questions of law and fact is not always clear. Courts have not found it easy to formulate a satisfactory test of universal application.[14]
[14]Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.
The Supreme Court of Canada in Canada (Director of Investigation and Research) v Southam Inc[15] has provided the following concise formula:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
[15][1997] 1 SCR 748 at [35] per Iacobucci J.
The basis upon which leave to appeal is granted has been considered in many decisions and succinctly summarised in Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 at [7] to [9]:
[7]Finality in litigation is highly desirable because any further action beyond the hearing can be costly, and unnecessarily burdensome on the parties. [Fox v Percy (2003) 214 CLR 18, 128 per Gleeson CJ, Gummow and Kirby JJ]. A finding of fact will generally not be disturbed on appeal if the evidence before the tribunal supports the inferences drawn and the facts found. [Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ] It is not the Appeal Tribunal’s task to decide where the truth lay as between the competing versions given by parties. [Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ]
[8]Whether a decision is based on findings of fact which are open on the available evidence is a question of law. [Kostas v HIA Insurance Services Pty Ltd t/a Home Owners Warranty (2010) 241 CLR 390]
[9]Leave to appeal will ordinarily only be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage [Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580]; there is a reasonably arguable case that the primary decision-maker made an error [QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41] and there are reasonable prospects that the applicant would be granted orders in its favour [Cachia v Grech [2009] NSWCA 232, [13]]; or to correct a substantial injustice to the applicant caused by error [QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QD R 41].
An appeal to the Appeal Tribunal on a question of fact or mixed law and fact is by way of rehearing.[16] The Appeal Tribunal must consider whether it is demonstrated by an appellant that there has been some legal, factual or discretionary error obvious on the record.
[16]QCAT Act, s 147(2).
Discussion
We shall deal with each of the grounds separately.
Ground (a) Denial of Natural Justice
The first ground of appeal relates to a pure question of law, namely whether Mr Bakker and Ms Kramer were afforded natural justice in presenting their case or defending the claim made against them.
The essence of the submission by Mr Bakker and Ms Kramer is that it was a breach of the rules of procedural fairness for the Member to deny them the opportunity to make submissions or call evidence in relation to the monetary claim.
Mr Bakker submits that the hearing proceeded on the basis that the only matters in dispute were those relevant to the rectification claim. Mr Bakker states that on a number of occasions he raised the issue of his defence to the monetary claim with the Member but that, in effect, his submissions were ignored and that he was denied the opportunity to address the Tribunal in relation to this aspect of his case and denied the opportunity to provide evidence to the Tribunal in support of his case.
In essence, Mr Bakker submits that the course taken by the Member was procedurally unfair.
Procedural fairness, of course, is the conclusive result of a fair hearing. Whether a matter has been dealt with fairly depends on the circumstances of the case. The question, therefore, is what is considered to be fair in the circumstances of this case.
The principles of natural justice have been considered by the Courts in innumerable cases but are succinctly stated by Brennan J in Kioa v West[17]
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise power. The variable content of the principles of natural justice was articulated by Tucker LJ in an oft-cited passage in his judgement in Russell v Duke of Norfolk [1949] 1 All E.R. 109 at 118
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from the time to time used, but, whatever standard is adopted, one essential is that person concerned should have a reasonable opportunity of presenting his case.[18]
[17](1985) 159 CLR 550 at 612.
[18]See also: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 per Tucker LJ and Kitto J.
In determining whether Mr Bakker and Mr Kramer were afforded natural justice it is necessary to carefully assess whether or how the matter was dealt with by the Member and in particular whether they did have a reasonable opportunity of presenting their case.
The starting point is the consideration of the Act under which the Member’s powers are conferred.
Pursuant to s 3(b), the objects of the QCAT Act include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.
Section 28 of the QCAT Act relevantly provides:
28 Conducting proceedings generally
(1)The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the Rules.
(2)In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
(3)In conducting a proceeding, the tribunal –
(a)must observe the rules of natural justice; and
(b)is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
(c)may inform itself in any way it considers appropriate; and
(d)must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
(e)must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
This section clearly sets out that the Tribunal must observe the rules of natural justice and must ensure that all relevant material is disclosed to the Tribunal to enable it to decide the matter with all the relevant facts. It further states that the Tribunal may admit into evidence the content of any documents despite any non-compliance with any time limit relating to the document or the service of it.[19]
[19]QCAT Act, s 28(4).
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.
A further exchange regarding the monetary claim occurred between Mr Bakker and the Member:[21]
Member: Mr Bakker, I tried to explain to you beforehand. The other claim is a very straightforward claim for Mr Richard’s balance moneys. But your response is that the builder owes you for the building work that hasn’t been properly performed? – No, but there’s a dispute about what he is trying to get from us.
And once we work out that, the matter of the minor debt falls into place? ---So I can –
No it falls into place insofar as essentially the only things in issue is the building dispute. From your response I can’t see there’s much more than you dispute you owe the builder money because he hasn’t performed the contract. And this is what we’re talking here now for one and half days about whether the builder has performed his contract. So there’s – the matters were joined together to be heard together because they are totally involved together. Not one after the other. Unless you could have had the other matter heard six months ago I suppose? --- Yeah, but that was not a allowed.
I don’t know if you’re being obtuse or you’re just refusing to understand? --- No, no, I have a whole file about ---
Yes. Haven’t you heard anything I just explained to you at all? --- This is difficult for us, Your Honour.
No, haven’t you understood any part of what I just explained? --- Yeah, certain I don’t – I understand – but that he is –
Anyway, you’re not having a separate hearing in respect of that. This hearing covers both, how’s that? --- Can I defend? Can I defend them for that ---
Well, you’re being asked questions about the piers. Speak now. Answer the questions.
[21]Transcript at lines 8 to 39 of p 104 of the Transcript Day 2.
Yet another further exchange in relation to the monetary claim occurred at the end of the hearing of evidence as follows:[22]
[22]Transcript at line 28 of p 161 to line p 47 of p 162 of the Transcript Day 2.
Member: All right. I think we’ve finished……..I think we’ve canvassed fully everything, so do you wish to make any further submissions?
Mr Bakker: Well, I would like to defend myself for that financial plan, but I’m not allowed, I understand.
Member: Well, no, it’s not a matter of now allowed. Your whole response to the minor debt claim was that there has been deficient building work.
Mr Bakker: No.
Member: It isn’t the case? Your response filed to the minor – the initial minor debt claim against you for $14,794 as the moneys owing for completion of the contract. Your response filed on 27 March 2012 was the respondent denies the claim of $17,673, which was the interest factor added. The respondent is willing to release the money on the shared bank account to Rob Richards, and the reasons I consider the order should be made are, the builder failed to rectify his problems and did not response when we notify him we could organize it ourself, That’s your response. To me you’re simply saying there’s problems and they had to be rectified, and you weren’t going to pay them till they were. I don’t understand why – where’s there a separate claim here that has to be litigated.
Mr Bakker: Well [indistinct] but I have paid the money to the contractors, give the bill to the supervisor and I don’t have the money back. There is ----
Member: If you are successful with your claim, which is currently, what, about $115,000 offset from that will be Mr Richards’ claim to $14,794 because that ‘s the cost of rectifying.
Mr Bakker: I can only say that there’s some new material---
Member: No, don’t – you’ve said that about 45 times through the hearing. You have to listen. I cannot see that I do not take the amount of $14,794 into consideration with respect to the building claim you have made against Mr Richards of $115,000. One offsets the other. If you fail entirely with your claim – entirely – I can’t see that he’s not entitled to his amount of $14,794. If you are successful, I can’t see where he is successful to the extent of $14,794, other than to set off from your claim, the amount it would have cost anyway to complete the contract.
Mr Bakker: So can I ask, have you read our---
Member: I have read all the material in the files.
Mr Bakker: Do you take it with you in you ---
Member: Yes.
Mr Bakker: Okay. Well ---
Member: And this why I’ve tried to make clear to you that the two matters had been heard together.
Mr Bakker: Yes, but that was not how it was – well, I don’t want to make a big deal about that. I just say –
Member: I will take into account your response in respect of the claims to defects in the building when I consider Mr Richards’ claim for the balance of his money. All those factors are being taken into account.
Mr Bakker: Okay
Member: All right. And therefore, both matter are being heard together and will be determined together.
Mr Bakker: Okay.
Member: All right, Now, as far as further submission, I don’t see that it’s necessary. If you would like to make further submissions, tell me now. Do you understand? Not further affidavit. The evidence is finished. If you would like to make some submissions about the legal aspects of the matter, I might allow you to make written submissions.
The basis of the Member’s consideration of the monetary claim is set out at paragraphs [103] to [105] of the decision:
[103]The builder’s claim in the minor debt proceedings was for balance owing under the contract of $13,070 plus interest at 20% on outstanding monies and the costs of supplying two in-wall toilet systems for $1724. Mr Richards seems to allude to additional costs of $1400 for the plumber and $712 for the tiler in other documents but those additional amounts are not included in his minor debt claim document.
[104]The minor debt proceeding was transferred to the building list and ordered to be heard together with the owners building claim.
[105]By email dated 3 April 2011 the owners freely admitted they owed $13,235 to the builder. Subsequently the owners advised the BSA officer who attended for inspection on 29 August 2011 they owed $13,300 to the builder under the contract including variations. In his minor debt claim the builder’s claim was for $13,070. I accept that latter amount is the extant under the contract and outstanding to the builder by the owners before setoff.
During the hearing on appeal, Mr Bakker referred us to documentation which he said was ignored by the learned Member and a file which Mr Bakker submits was not considered by the Tribunal at all.
It is obvious from the above exchange and from the basis of the Member’s decision that the documentation which Mr Bakker submits was made available to the Member and Mr Richards at the hearing was not considered to be allowed into evidence by the Member nor was it considered in the Member’s reasons.
From a reading of the transcript, it is obvious that Mr Bakker was not given the opportunity to put material to the Member which addressed a contrary position to the Member’s perception or understanding of Mr Bakker’s case. The Member proceeded on the basis that Mr Bakker and Ms Kramer conceded that the amount claimed by Richards Projects was owed. Mr Bakker attempted to explain to the Member that this was not the case. Further, Mr Bakker was prevented from addressing the issue or from referring to material in support of his contention that the sum claimed was not conceded as owing but rather there were amounts which Richards Projects owed to Mr Bakker and Ms Kramer which had no connection to the rectification claim.
The Member had a concluded view of Mr Bakker’s case which clearly was in conflict with the case which Mr Bakker attempted to explain to the Member.
Whilst it is obvious that the Member conducted the hearing with the intention of affording both parties the opportunity to present their case by way of both oral evidence and written submissions and demonstrated a fair manner in explaining to the parties the practices and procedures of the Tribunal and the nature of assertions made in the proceedings,[23] the error occurred as a result of the Member’s misconceived understanding of the case presented by Mr Bakker and Ms Kramer. It would seem that, because of this misunderstanding, Mr Bakker was denied the opportunity to make either oral submissions or written submissions in relation to their position. Further, Mr Bakker was denied the opportunity to fully explain to the Member that the Tribunal had not appreciated the case which Mr Bakker was attempting to put forward.
[23]QCAT Act, s 29.
We are satisfied that, having considered the transcript of the proceedings and the Member’s reasons for the decision, Mr Bakker and Ms Kramer have established that in the circumstances of this particular case there has been a failure to provide procedural fairness.
In the circumstances, it seems appropriate that the monetary claim be returned to a Member of the Tribunal for rehearing.
Ground (b) Errors of Fact/Errors in Interpretation of the Evidence
Pursuant to s 142(3)(b) of the QCAT Act, it is necessary that a party obtain the Appeal Tribunal’s leave to appeal before the appeal can proceed.
In considering whether leave to appeal is to be granted the matters set out in Lida Build Pty Ltd v Miller & Anor,[24] as set out above, are to be considered.
[24][2011] QCATA 219 at [9].
Public Advantage
There is no suggestion from either party that the issues canvassed in this appeal are matters of public importance.
The matters in dispute are personal to the parties and do not relate to any overriding matters of public interest. The matter is primarily a domestic building dispute which relates to allegations by one party that the work carried out by another party was defective and that moneys are still owing under the contract.
Neither party has identified any question of general importance upon which further argument should be agitated and from which a decision of the Appeal Tribunal would be to the public advantage.
Did the Primary Decision-maker make an Error?
Findings of fact by a Tribunal will not usually be disturbed on appeal particularly if any facts inferred by the Tribunal as forming the basis of its finding are capable of supporting its conclusions and there is evidence capable of supporting any inferences underlining such conclusions.[25]
[25]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208; (2003) 214 CLR 118 at 125/126; [2003] HCA 22 at [25].
An appellate Tribunal may interfere if the conclusion at first instance is contrary to compelling inferences which can be drawn from the evidence.
In Fox v Percy[26] the Court stated:
In such circumstances, the appellate court is not relieved of its statutory function by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.
[26]Fox v Percy (2003) 214 CLR 118 at 128 at [29] per Gleeson CJ, Gummow and Kirby JJ.
It is necessary to address each of the issues which Mr Bakker and Ms Kramer submit demonstrate an error of fact by the Member.
(a)The Garage
The Member deals with the significant claim regarding the alleged defects with the garage at the property at paragraphs [7] to [17] of the decision. This claim relates to a number of complaints by Mr Bakker and Ms Kramer in relation to the size of the garage and the alignment of the garage walls which were defects alleged to have resulted from variations to the gradient of the driveway, the lowering of the garage floor and relocation of the garage walls.
Mr Bakker submits that the Member made errors of fact in the decision in relation to the change in size of the garage,[27] in accepting the evidence of the builder’s construction manager, Mr Hillary, in relation to discussions between Mr Bakker and Mr Hillary and in accepting the evidence of Mr Richards (with no complaint to the Queensland Building Services Authority) that the garage walls were plumb.
[27]The Member notes that the change in size of the garage was 30mm whereas Mr Bakker submits that the intrusion on the garage space was 70mm, being 35mm in relation to each wall.
Mr Richards submits that the relevant evidence at the hearing established that the garage was reduced by 35mm at the right hand side of the garage and at the rear due to the thickness of the retaining walls which were installed as a result of a change in the level of the floor of the garage. Mr Richards also relied upon the evidence of Mr Hillary which explained the discussion between Mr Hillary and Mr Bakker in relation to the variations to the construction of the garage.
Further, Mr Richards submits that it was open on the evidence for the Member to find that the walls of the garage were plumb and, if they were not, any discrepancy was not noticeable.
Extensive expert evidence was given at the hearing before the Member by Mr McCarthy, on behalf of Mr Bakker and Ms Kramer, Mr Corn on behalf of Richards Projects and by Mr Hillary, the construction manager for the project.
It would seem, in reaching the decision, the Member has on a number of occasions referred to a loss of “30mm in each wall” of the garage.[28] This fact is not consistent with the evidence given by each of the experts, Mr Bakker and Mr Richards. All witnesses consistently refer to a difference of 35mm between the planned location of the garage walls and the as-constructed location of the garage walls.[29]
[28][9], [10] and [14] of the decision.
[29]Transcript Day 1 at pp 87 to 105 per Mr McCarthy – in particular line 33 p 90; Transcript Day 1 at pp 103 to 107 per Mr Corn; Transcript Day 2 at pp.62 to 74 per Mr Bakker and Mr Richards; Transcript Day 2 at pp 98 to 102 and pp 107 to 109 per Mr Bakker and Mr Richards; Transcript Day 2 at pp 141 per Mr Richards; Transcript Day 2 at pp 148 to 153 per Mr Hillary.
To that extent, there is a demonstrated error of fact in the decision.
The other complaints by Mr Bakker relate to the Member’s decision in relation to the discussion between Mr Bakker and Mr Hillary regarding the lowering of the garage floor and the plumbness of the garage walls. From a close reading of the transcript in relation to both of these issues, it would seem that it was open to the Member, on the evidence of Mr Hillary, Mr Corn and Mr Richards, all of whom were accepted by the Member as reliable witnesses on these issues, to make the following findings:
a) a discussion did occur between Mr Hillary and Mr Bakker regarding the necessity to lower the garage floor by 600mm to accommodate the change in gradient of the driveway;
b) any deviation in the plumbness of the garage walls was not a noticeable defect.
No error of fact is obvious on the record in relation to the lowering of the garage floor and the plumbness of the garage walls.
(b)Paint Marks on the Colorbond Roof[30]
[30]Evidence in transcript pp 32 to 34 and pp 155 to 157 of Transcript Day 1; pp 116-119 of Transcript Day 2.
Mr Bakker submits that the Member erred in relying upon the Queensland Building Services Authority report [“QBSA report][31] which did not refer to any paint marks on the roof. Also, it was an error for the Member to rely upon the evidence of any of the experts as none of them had inspected the roof. The fact that the paint marks are clearly visible from the upper balcony is submitted to be contrary to the Member’s findings.
[31]QBSA Report dated 30 August 2011 – Exhibit 15 and the second QBSA report dated 23 January 2012 – Exhibit 14.
The Member also accepted the evidence of Mr Richards that the damaged roof sheet had been replaced, concluding that the damage evident in any sheets after construction must have been caused subsequently to the builder’s involvement[32]. The Member allowed an amount of $100 for any minor silicone contamination yet to be removed. This concession was made by Mr Richards.
[32][21] to [25] of the decision.
Mr Richards submits that the item of complaint was an item on the first QBSA report but was not an issue raised in the second QBSA report.[33] The conclusion was that all repairs had been carried out by the contractor.
[33]QBSA report dated 23 January 2012 – Exhibit 14.
The matters raised by Mr Bakker amount to a re-agitation of the issues raised before the Tribunal.
It was open to the Member to accept the evidence of Mr Richards and Mr McCarthy.
No error of fact is obvious on the record.
(c)Gap Between Concrete Pavement and the Ground[34]
[34]Evidence in transcript pp 34 to 46 and pp 158 to 173 of Transcript Day 1; pp 120 to 122 of Transcript Day 2.
Expert evidence was given by Mr McCarthy, on behalf of Mr Bakker and Ms Kramer, and Mr Corn, on behalf of Richards Projects, in relation to this matter at the hearing before the Member.
The Member considered complaints regarding the gap between the concrete pavement at the right front side of the dwelling and the ground and the alleged misalignment of the concrete pavement with the wall. The evidence of Mr McCarthy and Mr Corn was conflicting, with Mr McCarthy forming the view that the concrete slab may collapse and Mr Corn forming the opinion that this would not be the case.
The Member accepted the evidence of Mr Corn and his estimate that rectification of the problem would be in the vicinity of $280.00.[35] The Member also formed the view that Mr Corn displayed a more balanced and reasonable approach to remedial measures necessary to rectify defective building work than that of Mr McCarthy.
[35][26] to [30] of the decision.
The Member had no evidence to consider regarding the cost to remedy the alignment defect. In the circumstances, it was open to the Member to allow a reasonable sum for this defect.
No error of fact has been demonstrated by Mr Bakker and Ms Kramer in relation to the complaint regarding the concrete slab.
(d)Failure to Provide Fall in the Verandah Floor[36]
[36]Evidence in transcript pp 48 to 67 and pp 174 to 191 of Transcript Day 1; pp 123 – 135 of Transcript Day 2.
This matter is dealt with extensively by the Member at paragraphs [32] to [51] of the decision.
The verandah above the garage is a covered structure with open sides. Mr Bakker submits that rain pools on part of the floor because there is no fall in the floor.
Evidence was given by Mr McCarthy and Mr Corn in relation to the necessity of a fall in circumstances concerning a covered verandah.
The Member did not accept the evidence of Mr McCarthy, which relied upon the James Hardie Technical Specification relating to Compressed Sheeting Decking Construction.[37] The Member formed the view that the subject of complaint was not a deck but rather a verandah. The distinction was explained and carefully considered. To this extent, the Member relied heavily on Drawing WD-06 which was part of the owner-supplied drawings.
[37]Exhibit 10.
Mr Corn and Mr Richards gave evidence, contrary to Mr McCarthy, that a fall in the floor was not necessary. Their opinion was supported by Mr Smith, the tiler who laid the tiles on the verandah.
The Member also accepted the evidence of Mr Smith, the tiler, in relation to the complaint that an expansion joint in the centre of the verandah was not installed. Mr Smith gave evidence, at the hearing before the Member, that there was sufficient movement around the external areas of the verandah with the result that an expansion joint in the centre was not necessary.
Mr Bakker submits that the Member erred by:
a) not finding that the verandah was an external application and therefore a fall in the floor was necessary;
b) failing to find that the builder was obliged to work within the Australian Standards AS2952.2 and BSA guidelines which clearly state that movement joints are critical to separate tiled elements from fixed elements such as columns and walls and to subdivide large tiled areas into smaller sections;
c) relying upon the evidence of the engineers who:
i)were not site engineers;
ii)have never visited the site; and
iii)have based their opinion on drawings which are not correct.
Mr Richards submits that the evidence before the Tribunal supported the Member’s finding that the verandah was fully roofed with 700mm wide eaves. The Member correctly determined its status and function and it was open to the Member on the evidence at the hearing to reach the conclusion that a fall was not necessary.
We accept that, on the evidence, it was open to the Member to find that a fall was not necessary on the verandah.
As a result, we have formed the view that no error of fact has been demonstrated.
(e)Discolouration of Grout in Main Bathroom[38]
[38]Evidence in transcript pp 67 to 72 of Transcript Day 1; pp 31 to 44 and pp 135 to 139 of Transcript Day 2.
This issue relates to the alleged discolouration of the tiled floor in the main bathroom, dealt with by the Member at paragraphs [52] to [60] of the decision.
The Member accepted the evidence of Mr Smith, the tiler, and Mr Richards, on behalf of Richards Projects, in preference to that of Mr Bakker in relation to the problems with the discolouration of the grout in the main bathroom. The Member accepted the explanation for the cause of the discolouration provided by Mr Smith and his evidence in relation to attempts to try and rectify the problem. The Member also accepted the evidence of Mr Smith that he had installed water stops in the bathroom.
The Member also relied upon the evidence from the QBSA second report[39] which identified no link between the discoloured grout and the leaking showers. The conclusion therefore was that the discolouration was more than likely caused by water pooling in the tile base from the leaking toilet.
[39]Exhibit 14.
Mr Corn gave evidence that the cost of re-grouting the floor to a uniform finish would be $800.00. Mr Smith supported this estimate by providing evidence that experts had quoted between $400.00 to $800.00. The Member allowed rectification costs of $800.00
Mr Bakker submits that the Member erred in accepting the evidence of Mr Smith that water stops were installed as there are no cut tiles to be seen in the floor. Mr Bakker submits that cuts are required and would be visible had water stops been installed. Further, Mr Bakker submits that he has quotations which substantiate that the estimate provided by Mr Smith is incorrect.
Mr Richards submits that the amount of $800.00 was agreed in the Scott Schedule.[40]
[40]Item 11 of the Scott Schedule.
Whilst we do not accept that the amount of $800.00 for rectification of the discolouration of the grout in the bathroom was agreed in the Scott Schedule, we accept that it was open to the Member to accept the evidence of Mr Smith in relation to this issue. The Member explained that the Tribunal preferred the evidence of Mr Smith to that of Mr Bakker on this issue. Such a finding was open to the Member on the evidence.
There does not seem to be any error of fact demonstrated by Mr Bakker and Ms Kramer in relation to the discolouration of grout issue.
(f)Water Penetration into the garage[41]
[41]Evidence in the transcript pp 119 to 119 of Transcript Day 1; pp 51 to 61 of Transcript Day 2.
This issue concerns the complaint that moisture enters the garage at weep holes which are covered by part of a concrete path.
The Member found that the construction of the path at its present height was defective building work and the path must be removed, the weep holes exposed and the integrity of the termite barrier maintained.[42]
[42][79] to [84] of the decision.
The only evidence relating to the cost of the rectification work was provided by Mr McCarthy. The Member accepted Mr McCarthy’s estimate and awarded the owners the amount of $2,624.00 claimed.
Mr Bakker’s submission on appeal relates to the Member’s comments at paragraph [84] of the decision in which the Member refers to s 51(2) of the Domestic Building Contracts Act 2000:
[84]That Mr Richards may have been asked to lay the slab at the wrong height by Mr Bakker does not change the fact that this is defective building work. To shift responsibility to the owner in such circumstances the builder needs point to written advice by him recommending against such. Mr Richards has not done that.
Mr Bakker queried how “written advice can be warranted here for changes to a small external slab and not for some things as major as the garage or balcony which is also defective building work”.
Mr Richards submits that the question raised by Mr Bakker and Ms Kramer on appeal does not demonstrate any error of fact but is merely a challenge to the Member’s finding by comparing this issue to a quite different situation.
The findings by the Member on the issue regarding moisture entry into the garage were open on the evidence and the result favoured Mr Bakker and Ms Kramer.
The issues raised by Mr Bakker and Ms Kramer on appeal do not demonstrate any error of fact by the Member but rather demonstrate a misinterpretation of the Member’s commentary which, in the end result, did not impact on the Member’s findings in relation to both liability and rectification costs for this item.
As a result, we have determined that no error of fact has been demonstrated in relation to the issue of alleged water penetration into the garage.
(g)Paint and Render Defects[43]
[43]Evidence in transcript pp 153 to 155 of Transcript Day 1; p 119 of Transcript Day 2.
This item in the Scott Schedule relates to the rendering and paintwork to a number of areas of the dwelling including the front right hand side of the dwelling, the garage columns, the area below the meter box and above the garage doors.[44]
[44]Item 3 of the Scott Schedule.
The Member found that the work was required but that the cost of rectification was disputed. The Member accepted the estimate of Mr Corn in preference to that provided by Mr McCarthy. The Member also accepted the evidence of Mr Richards and the supporting photographic evidence that the rendering had been done and the only outstanding work was the painting.[45]
[45][91] to [93] of the decision.
Mr Bakker submits that the finding by the Member that the rectification work would cost $550.00 was an error as it was submitted that such amount would not be sufficient to complete the works. Mr Bakker relied upon another quotation.
Mr Richards submits that the conclusion reached by the Member was reasonably open on the evidence and that Mr Bakker and Ms Kramer should not be allowed to introduce fresh evidence on appeal.
We accept that the findings of the Member were open on the evidence. The Member accepted the evidence of Mr Corn in relation to this issue. Accordingly, no error of fact has been demonstrated.
Likelihood of Decision in Appellant’s Favour
It is well settled that an appellate Tribunal will not interfere with the decision of a primary decision-maker merely because it may have formed a different view had it been in the position of the primary decision-maker. It is essential that there must be demonstrated some error in the decision-maker’s interpretation of the evidence which would then invoke the appellate jurisdiction.
In relation to items (b) to (g) set out in paragraph [11] above, we have concluded that there has been no error of fact by the Member. It is unlikely that the Appeal Tribunal would have reached a contrary decision.
Further consideration must be given to item (a) which relates to an error in the decision regarding the encroachment of the garage walls into the garage space.
The Member’s decision refers to a change of 30mm both in the length of the garage and in relation to the width of the garage. Extensive evidence was given by the experts in relation to this issue and it is obvious from the transcript that the relocation of the walls affected the garage space by 35mm in relation to each wall.
The question to be determined is whether in light of this error in the decision it is likely that the decision of the Appeal Tribunal would be different, that is, in favour of Mr Bakker and Ms Kramer.
It is necessary to consider whether the Member’s decision would have been any different had the Member considered the deviation in the garage walls to be 35mm instead of 30mm.
The Member accepted the evidence of Mr Corn, Mr Richards and Mr Hillary in preference to that of Mr Bakker and Mr McCarthy in relation to this issue. Each of the experts referred to the effect of the re-design of the garage walls as affecting the garage space by 35mm. Each of the witnesses, whose evidence was accepted by the Member, formed the view that the change in the structure of the walls did not affect the amenity of the garage. It would seem therefore that the error in the decision was not one which would have affected the result of the decision but rather an incorrect transcription into the decision of the evidence relating to the measurements of the walls.
Taking into consideration the evidence before the Member, there does not appear to be any reason why the Appeal Tribunal would disturb the findings which were expressed by the Member in the decision.
There does not appear to be any justification for concluding that there would be a likelihood that the decision of this Appeal Tribunal would be determined in favour of Mr Bakker and Ms Kramer on this issue.
Correction of Substantial Injustice caused by an Error
Having concluded that no error has been demonstrated to have been evident on the record in relation to items (b) to (g) set out in paragraph [11] above, it is unnecessary to consider whether there has been any substantial injustice suffered by Mr Bakker and Ms Kramer in relation to those items.
To the contrary, it would appear from the record that the Member considered each defect separately and considered the evidence applicable to each defect. In doing so, the Member made a value judgment in accepting or rejecting the evidence provided and applied the relevant legal principles to the accepted evidence.
There has been no error and as a result no substantial injustice has been demonstrated arising from any error in the decision in relation to items (b) to (g).
In relation to item (a), being the claim for demolition and reconstruction of the garage arising from a change in the size of the garage, the error in the decision has not caused a substantial injustice. The error in transcribing the change in measurement of the width of the garage, resulting from an impingement into the garage space as a result of the reconfiguration of the walls, does not detract from nor negate the Member’s reliance upon the evidence of Mr Richards, Mr Corn and Mr Hillary. The Member did not accept the evidence of Mr Bakker that he was not aware of the extent of the change in height of the garage floor nor did the Member accept that Mr Bakker was substantially affected by the change in the width of the garage. The Member did not accept that the redesign of the garage walls as a result of the lowering of the garage floor, in particular the wall adjacent to the driver’s side of a parked vehicle, significantly affected Mr Bakker’s use of his car in the garage.
We do not accept that any substantial injustice has been caused by the error in measurement in the decision, such that there is the necessity for the correction of any substantial injustice.
Refusal of Leave to Appeal
Based on the matters considered above, there does not appear to be any reason to support the conclusion that leave to appeal should be granted in relation to the matters set out in paragraph [11] above.
It follows that leave to appeal in this matter is refused in relation to the matters raised in relation to ground (b) of the appeal.[46]
[46]The grounds of appeal are set out in [9] hereof.
Orders
Based on our consideration of the grounds of appeal relied upon by Mr Bakker and Ms Kramer, the orders of the Appeal Tribunal are as follows:
1. in relation to ground (a) of the appeal:
(a)the appeal is allowed;
(b)the decision of the Tribunal in relation to proceedings BDL232-12 is set aside;
(c)the matter is to be returned to the Tribunal for reconsideration with the hearing of any additional evidence relevant to the proceeding to be permitted;
2. In relation to ground (b) of the appeal, the application by Mr Bakker and Ms Kramer for leave to appeal is refused.[47]
[47]Grounds of appeal (a) and (b) are set out in [9] hereof.
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