Brownie v Penfold - [2013] QCATA 182

CITATION:

Brownie & Anor v Penfold [2013] QCATA 182

PARTIES:	Dr Sharon Brownie Mr Sam Kurne (Applicants/Appellants)
v
Mr Mark Penfold (Respondent)

APPLICATION NUMBER:

APL373-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

17 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – where applicants engaged respondent to renovate house – where applicants brought proceedings in the Tribunal – where applicants sought compensation for defective work and incomplete work, loss of rent and personal expenses – where Tribunal ordered the respondent to pay the applicants a fixed sum – where the fixed sum was less than the claim sought – where applicants seek to appeal that decision – where appeal based on questions of mixed law and fact – whether Tribunal erred in the way in which it assessed the applicants’ claim – whether Tribunal erred in making its findings of fact – whether leave to appeal should be granted

PRACTICE AND PROCEDURE – ADDITIONAL EVIDENCE – where applicant seeks to rely on additional evidence – whether new evidence reasonably available at original hearing – whether unrepresented parties must exercise the same diligence in preparing case as represented parties – whether additional evidence should be accepted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 29, s 43, s 142, s 147

Clarke v Japan Machines (Australia) Pty Ltd [1994] 1 Qd R 404, applied

Cachia v Grech [2009] NSWCA 232, cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

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 (‘QCAT Act’).

REASONS FOR DECISION

Dr Brownie and Mr Kurne engaged Mr Penfold to undertake renovation work at a house they owned in Brisbane. The work was largely performed in 2009, with some rectification work in 2010.
Dr Brownie and Mr Kurne were not happy with the work, and the QBSA became involved. Eventually they began proceedings in QCAT in 2012 seeking compensation for defective and incomplete work, loss of rent and personal expenses they alleged they had incurred, in the total sum of $16,816.00.
The matter was heard and determined by a QCAT Senior Member on 6 September 2012. She ordered that Mr Penfold pay Dr Brownie and Mr Kurne the sum of $4,035.00. They are dissatisfied with that decision and wish to appeal.
They may appeal as of right on a question of law[1] but need the leave of the Appeal Tribunal if they wish to appeal on questions of fact or mixed law and fact.[2] As will be seen, their grounds of appeal involve…

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.

Continue reading Brownie v Penfold

Details

AGLC: Brownie & Anor v Penfold [2013] QCATA 182
Case: [2013] QCATA 182
Decision Date: 17 June 2013

CaseChat Overview and Summary

Brownie and Penfold were the parties involved in this appeal, which originated from a building dispute. The applicants engaged the respondent to renovate their house, but the work was defective and incomplete, leading to claims for compensation. The applicants brought proceedings in the Victorian Civil and Administrative Tribunal (VCAT), seeking compensation for defective and incomplete work, loss of rent, and personal expenses. The Tribunal ordered the respondent to pay the applicants a fixed sum, which was less than the amount claimed. The applicants sought to appeal this decision, arguing that the Tribunal erred in its assessment of their claim and in its findings of fact.

The central legal issues in this appeal concerned the assessment of the applicants' claim and the findings of fact made by the Tribunal. The applicants argued that the Tribunal erred in its assessment of their claim, particularly in the way it determined the quantum of damages. They also contended that the Tribunal made incorrect findings of fact, which undermined its conclusions about the reasonableness of the compensation awarded. The applicants sought leave to appeal, arguing that questions of mixed law and fact were involved, necessitating a review by a higher court.

The court considered whether the applicants had demonstrated that the Tribunal had erred in its assessment of their claim and findings of fact. The court found that the applicants had not sufficiently demonstrated that the Tribunal had made an error of law or fact that warranted an appeal. The court noted that the Tribunal had carefully considered the evidence and provided detailed reasons for its decision, and that the applicants' arguments did not establish that the Tribunal's decision was manifestly erroneous. The court also considered the applicants' request to rely on additional evidence not presented at the original hearing, finding that the new evidence was not reasonably available at the time of the original hearing and that the unrepresented parties must exercise the same diligence as represented parties in preparing their cases. The court concluded that the applicants had not demonstrated that leave to appeal should be granted.

The court ordered that the application for leave to appeal be refused. The applicants were not granted permission to appeal the Tribunal's decision, and the original order remained in place.

Orders

Orders of the court

Application for leave to appeal refused.

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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