Cook v Paterson

[2013] QCATA 30

CITATION: Cook v Paterson [2013] QCATA 030

PARTIES:	Russell Cook t/as Bowen Village Caravan & Tourist Park
v
John Grayson Paterson t/as Nature Creek Finishes

APPLICATION NUMBER: APL225-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 18 February 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted

2.    Appeal allowed.

3.    The application is listed for a directions hearing on 27 March 2013 at 11.30 am

CATCHWORDS:

BUILDING DISPUTE – where original contract appeared to differ from carbon copy – whether original contract altered – where original contract provided for 12 month defect liability period – whether error by primary tribunal – whether reasonable prospect of substantive relief

Queensland Civil and Administrative Tribunal Act2009, s142(3)

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

1. Mr Paterson installed a concrete swimming pool and five water features at the Bowen Village Caravan Park in 2010. Mr Cook, who owns the park, complained that the work was faulty. Mr Paterson rectified some of the faulty work but refused to rectify faults which, he says, were outside the defect liability period or were defects caused by Mr Cook’s failure to maintain the work. Mr Cook wanted the Tribunal to order Mr Paterson rectify the defective work. After a hearing, the learned Member dismissed Mr Cook’s application.

2. Mr Cook wants to appeal that decision. Because the appeal concerns questions of fact, Mr Cook must first have leave to appeal[1]. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Cook shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected.

   [1]            Queensland Civil and Administrative Tribunal Act 2009, s142(3).

3. Mr Cook’s main complaint is that the learned Member did not find that the contract provided a defect liability period of twelve months. 

4. Mr Cook gave the learned Member the original contract[2]. That document shows a defect liability period of 12 months. Mr Paterson had earlier filed a copy of his carbon copy of the contract. The carbon copy was also produced[3]. The space where “12” should appear is blank on the carbon copy.

   [2]            Exhibit 1.

   [3]        Exhibit 2.

5. As the learned Member noted, the “12” on the original contract is written in a blue pen and by a different hand from the signatures on the contract, which are in a black pen. The person who used the blue pen inserted other items into the contract. These items appear on the carbon copy. The deletion of “weeks” next to the box where “12” should appear appears on the carbon copy. The deletion of “week” next to the note of $50 for liquidated damages appears on the carbon copy. On close examination, I can also see that the figure of 50 on the carbon copy has been overwritten with the figure “12”. The logical explanation is that the carbon copy was not precisely aligned with the original when the defects liability period was inserted.  I am satisfied that the original contract is correct and the parties agreed the defect liability period was twelve months.

6. The learned Member said that he did not need to decide what defect liability the parties agreed but the learned Member accepted that the work was defective but dismissed Mr Cook’s claim because of the lapse of time between completion and Mr Cook’s notification of defects. If the defect liability period was twelve months, as Mr Cook claimed, not six months as Mr Paterson claimed, then Mr Cook has an explanation for his delay.

7. There is an error of fact which influenced the learned Member’s decision. There is a reasonable prospect that Mr Cook will obtain substantive relief if the dispute is returned to the Tribunal in its original jurisdiction. I grant leave to appeal and allow the appeal.

8. Mr Cook filed his application in 2011. I do not know whether he engaged other contractors to fix the defects or whether he has waited for this dispute to run its course in the Tribunal. I will hear from the parties about further steps before I return the dispute for rehearing. The application is listed for a directions hearing on 27 March 2013 at 11.30 am.