Budlex v Hogue - [2002] QDC 260

DISTRICT COURT OF QUEENSLAND

CITATION:

Budlex v Hogue [2002] QDC 260

PARTIES:

BUDLEX PTY LTD
ACN 061 613 492
Appellant
v
ADRIAN HOGUE trading as Adrian Hogue Building Services
Respondent

FILE NO:

Appeal No. 3143 of 2001

PROCEEDING:

Appeal

ORIGINATING COURT:

Queensland Building Tribunal

DELIVERED ON:

15 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2002

JUDGE:

Judge C.J.L. Brabazon, Q.C.

ORDER:

Appeal dismissed. Confirm the Tribunal’s decision.

CATCHWORDS:

APPEAL AND NEW TRIAL – appellate jurisdiction – Queensland Building Tribunal – nature of appeal

INFERIOR TRIBUNALS – Building Tribunal – appeal to District Court – nature of appeal

CONTRACT – implied terms – where building contract did not record actual terms of agreement – whether oral evidence may be admitted in establishing the nature of the contract – where tribunal member’s assessment of evidence was correct – appeal dismissed

Queensland Building Tribunal Act (Qld) 2000

Devries v Australian National Railways Commission (1993) 177 CLR 472 Equuscorp Pty Ltd v Glengallan Investment Pty Ltd [2002] QCA 380 Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306

COUNSEL:

Mr A Crowe S.C. for Appellant
Mr P Flanagan for Respondent

SOLICITORS:

Shand Taylor Lawyers for Appellant
Tucker and Cowen for Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Queensland Building Tribunal given on 28 May 2001.

The dispute arose in Mt Isa. Mr Hogue is a builder. Budlex Pty Ltd is a company controlled by members of the Vaiente family, formerly of the Verona Hotel. In this case, Messrs Alberto and Ernesto Vaiente represented the company.

Mr Hogue did building work for Budlex. A dispute arose about the amount of payment that he was entitled to receive. The parties agreed that the Tribunal should first resolve the issue of any liability to make payment, leaving the quantum of payment to be assessed, if necessary, on another occasion.

The Tribunal found for Mr Hogue on the question of liability. Although quantum has not yet been assessed, it appears that Budlex will have to make a further substantial payment to him, in addition to the repayment of a loan of $40,000. Budlex now appeals against that finding on liability. It contends that the liability issue should have been resolved in its favour.

Mr Hogue’s claim was a contractual one. There was no alternative claim in restitution. Budlex did not raise any plea of estoppel, or suggest that his claim should be disallowed on public policy grounds. No different submissions were made on the appeal.

The nature of the appeal

Section 92 of the Queensland Building Tribunal Act (Qld) 2000 provides for an appeal to this court in the following terms:

“92(1)A party to a proceeding before the Tribunal may appeal to the District Court against a decision of the Tribunal that finally decides matters, the subject of the proceeding.
(2)…
(3)An appeal must –
(a)be accompanied by the Tribunal’s decision and reasons for decision, if any;…

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: [2002] QDC 260
Decision Date: 15 October 2002

CaseChat Overview and Summary

Budlex Pty Ltd appealed against a decision of the Queensland Building Tribunal that had ruled against the company in a dispute with Hogue Constructions Pty Ltd. The nature of the dispute was centred around the terms of a building contract between the two companies, specifically whether the tribunal could consider oral evidence to determine the contract's actual terms, as the written contract did not fully capture the parties' agreement. The appeal was heard in the District Court of Queensland.

The primary legal issues the court had to decide were whether the appeal was properly within its jurisdiction and whether the tribunal was correct in considering oral evidence to establish the contract's terms. The court needed to determine if the tribunal's assessment of the evidence was sound and whether the appeal should be dismissed or allowed.

In its reasoning, the court noted that the appeal was within its jurisdiction as it pertained to the tribunal's interpretation of the contract. The court examined the tribunal's decision and found that it had correctly assessed the evidence, including oral testimony, to establish the actual terms of the contract. The tribunal's conclusion was consistent with the principles governing the admission of evidence in such matters. Consequently, the court dismissed the appeal, confirming the tribunal's decision.

The final order of the court was to dismiss Budlex Pty Ltd's appeal and to confirm the decision of the Queensland Building Tribunal. This means that the tribunal's ruling, which included the consideration of oral evidence, stands as the final determination in the dispute.

Orders

Orders of the court

Appeal dismissed. Confirm the Tribunal’s decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Budlex v Hogue [2002] QDC 260
PARTIES:	BUDLEX PTY LTD ACN 061 613 492 Appellant v ADRIAN HOGUE trading as Adrian Hogue Building Services Respondent
FILE NO:	Appeal No. 3143 of 2001
PROCEEDING:	Appeal
ORIGINATING COURT:	Queensland Building Tribunal
DELIVERED ON:	15 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	8 October 2002
JUDGE:	Judge C.J.L. Brabazon, Q.C.
ORDER:	Appeal dismissed. Confirm the Tribunal’s decision.
CATCHWORDS:	APPEAL AND NEW TRIAL – appellate jurisdiction – Queensland Building Tribunal – nature of appeal INFERIOR TRIBUNALS – Building Tribunal – appeal to District Court – nature of appeal CONTRACT – implied terms – where building contract did not record actual terms of agreement – whether oral evidence may be admitted in establishing the nature of the contract – where tribunal member’s assessment of evidence was correct – appeal dismissed Queensland Building Tribunal Act (Qld) 2000 Devries v Australian National Railways Commission (1993) 177 CLR 472 Equuscorp Pty Ltd v Glengallan Investment Pty Ltd [2002] QCA 380 Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
COUNSEL:	Mr A Crowe S.C. for Appellant Mr P Flanagan for Respondent
SOLICITORS:	Shand Taylor Lawyers for Appellant Tucker and Cowen for Respondent