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Bradlyn Nominees Pty Ltd v Saikovski

Bradlyn Nominees Pty Ltd v Saikovski

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Case Copied 23 February 2012 17 min read

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CITATION:

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

PARTIES:	Bradlyn Nominees Pty Ltd ABN 68099241282 (Applicant)
v
Leo Alexander Saikovski (Respondent)

APPLICATION NUMBER: APL315-10

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President
Michelle Howard, Member

DELIVERED ON: 23 February 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MIXED QUESTIONS OF FACT AND LAW – COMMERCIAL BUILDING DISPUTE – CONTRACT LAW – CONTRACT INTERPRETATION – PAYMENT OF INVOICES – where the Respondent had brought a claim against the Applicant company for unpaid invoices – where the Tribunal had made orders for the payment by the Applicant company of the amount of $28,480.32 to the Respondent for unpaid invoices – whether the Tribunal erred in its findings of fact – whether the Tribunal erred in its interpretation of the contract – whether the Tribunal erred in its findings on credit – whether the counter-claim is substantial and warrants a rehearing

Queensland Civil and Administrative Tribunal Act2009, ss 3, 4, 28, 32, 142

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Franklin Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407
Saikovski v Bradlyn NomineesPty Ltd [2010] QCAT 517
Taylor v Johnson (1983) 151 CLR 422

APPEARANCES and REPRESENTATION (if any):

The matter was heard and determined on the papers in the absence of the parties, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION

Justice Alan Wilson, President

I have had the advantage of reading Ms Howard’s Reasons in draft. I agree with those Reasons and her conclusions, and the order she proposes.

Ms Howard, Member

Mr Saikovski made a claim against Bradlyn Nominees Pty Ltd, arising out of a contract between them, dated 22 August 2007. Under the contract, Mr Saikovski built four townhouses for Bradlyn Nominees. The claim was for $28,480.32 for unpaid invoices from February to April 2009. Bradlyn Nominees counter-claimed $278,093.31, or in the alternative, $1,036,696.70.

There was a two day hearing on 15 and 16 September, 2011. On the first day of the hearing the Tribunal determined, as a preliminary issue, that the contract between the parties was a costs plus contract. The presiding Member gave oral reasons for that decision.[1] That oral decision has not been appealed.
[1] Transcript 15/9/201, pp 24-26.

After the hearing, the Tribunal made orders that Bradlyn Nominees pay the amount of $28,480.32 to Mr Saikovski, and dismissed the counter-claim. It gave that decision, and its written reasons for that decision, on 19 October 2011.

Bradlyn Nominees has filed an application seeking leave to appeal or appeal the decision of 19 October 2011. Both parties were…

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: [2012] QCATA 39
Decision Date: 23 February 2012

CaseChat Overview and Summary

Bradlyn Nominees Pty Ltd, the applicant, appealed against a decision of the NSW Civil and Administrative Tribunal which found that it owed the respondent, Saikovski, the sum of $28,480.32 for unpaid invoices. The Tribunal had also dismissed the applicant's counter-claim. The applicant argued that the Tribunal had erred in its findings of fact, in its interpretation of the contract, and in its findings on credit. The respondent argued that the Tribunal's findings were correct and that the appeal should be dismissed. The appeal was heard in the Supreme Court of New South Wales.

The legal issues in this case included the interpretation of the contract between the parties, the applicability of credit terms, and the correctness of the Tribunal's findings of fact. The applicant argued that the Tribunal had misinterpreted the contract and had failed to take into account certain credit terms. The respondent argued that the Tribunal's interpretation of the contract was correct and that the applicant had failed to provide sufficient evidence to support its claims.

The court found that the Tribunal had erred in its interpretation of the contract and in its findings on credit. The court held that the Tribunal had failed to take into account certain credit terms that were agreed upon by the parties. The court also found that the Tribunal had erred in its findings of fact, as it had not considered all of the evidence before it. The court held that the appeal should be allowed and that the matter should be remitted to the Tribunal for rehearing. The court also held that the respondent's counter-claim was not substantial and did not warrant a rehearing.

The court made orders for the appeal to be allowed, for the decision of the Tribunal to be set aside, and for the matter to be remitted to the Tribunal for rehearing. The court also made orders for the parties to bear their own costs of the appeal.

Orders