Coolican v Bokam (NQ) Pty Ltd - [2008] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

Coolican v Bokam (NQ) Pty Ltd [2008] QDC 248

PARTIES:

CARY ELLEN COOLICAN
(Appellant)
v
BOKAM (NQ) PTY LTD Trading as OZONE TROPICAL DESIGNS & CONSTRUCTION
(Respondent)

FILE NO/S:

12 of 2008

DIVISION:

Trial Division

PROCEEDING:

Appeal

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

10 October 2008

DELIVERED AT:

Cairns

HEARING DATE:

19 August 2008

JUDGE:

Everson DCJ

ORDER:

1. That the appeal be allowed in part;
2. That the case be remitted to the Tribunal for further hearing as to what set-off, if any, the appellant has pursuant to s 553C of the Corporations Act 2001 which arises pursuant to a cause of action for breach of contract in respect of the construction of the deck.

CATCHWORDS:

CONTRACTUAL ISSUE – CONSTRUCTION OF CONTRACT – BREACH OF CONTRACT - where an error of law was made by the Commercial and Consumer Tribunal when categorising a construction contract as a separate contract pursuant to s17A of the Domestic Building Contracts Act 2000 – where a further error of law regarding a potential set-off claim pursuant to s553C of the Corporations Act 2001.

COUNSEL:

R M Lilley Counsel for the Applicant/appellant
M Jonsson Counsel for the Respondent

SOLICITORS:

Bottoms English Lawyers for the applicant/appellant
Williams Graham & Carmen Solicitors for the Respondent

Introduction

This is an appeal against part of the decision of the Commercial and Consumer Tribunal dated 19 December 2007 pursuant to which the appellant was ordered to pay the respondent $49,671 (“the decision”).

Pursuant to s 100 of the Commercial and Consumer Tribunal Act 2003 (“CCTA”) an appeal of this type may only be brought with the Court’s leave and only on the ground of either error of law or excess or want of jurisdiction. When the matter came before me I was informed that the Court’s leave had been obtained in a Consent Order filed on 28 March 2008. This order is headed “Consent to Judgment or Order of Registrar”. It purports to be made pursuant to R 666 of the Uniform Civil Procedure Rules 1999. R 666 states that the Registrar may give judgment or make another order if the parties consent in writing and the Registrar considers it appropriate. This procedure does not obtain the Court’s leave. Accordingly, the leave of the Court was never properly obtained for the bringing of this appeal.

On the hearing of this matter both parties were represented by experienced counsel, the appellant being represented by Senior Counsel. Some of the grounds of appeal do not appear to me to fall within the concept of either errors of law or excess or want of jurisdiction. One aspect of the appeal concerns a claim for $200 in respect of tiles which the appellant’s counsel concedes is de minimus. Had the question of leave expressly come before the Court, leave would in all likelihood have only been granted in limited terms. However, given the advanced state of the appeal and the resources expended by the…

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: [2008] QDC 248
Decision Date: 10 October 2008

CaseChat Overview and Summary

Coolican sued Bokam (NQ) Pty Ltd in the Queensland Supreme Court after a dispute concerning a building contract. Bokam (NQ) Pty Ltd had entered into a contract with Coolican to construct a deck at Coolican’s property, and Coolican claimed that Bokam (NQ) Pty Ltd had breached the terms of the contract. The Commercial and Consumer Tribunal had previously found in favour of Coolican and awarded damages, but also determined that Coolican’s claim for damages should be reduced by an amount owed to Bokam (NQ) Pty Ltd under a separate contract. Coolican appealed this decision, arguing that the Tribunal had erred in categorising the construction contract as a separate contract under section 17A of the Domestic Building Contracts Act 2000. Bokam (NQ) Pty Ltd also argued that the Tribunal had erred in determining that Coolican could not claim a set-off against the amount owed under the separate contract.

The court found that the Tribunal had indeed erred in categorising the construction contract as a separate contract under section 17A of the Domestic Building Contracts Act 2000, and that this error had resulted in an incorrect calculation of the damages owed to Coolican. The court also found that the Tribunal had erred in determining that Coolican could not claim a set-off against the amount owed under the separate contract. The court noted that section 553C of the Corporations Act 2001 provides that a creditor may claim a set-off against a debt owed to them by the debtor, and that this provision applied to Coolican’s claim for breach of contract. The court held that the Tribunal had not considered whether Coolican was entitled to a set-off under section 553C of the Corporations Act 2001, and that the case should be remitted to the Tribunal for further hearing on this issue.

The court allowed the appeal in part, and remitted the case to the Tribunal for further hearing as to what set-off, if any, Coolican has pursuant to section 553C of the Corporations Act 2001 which arises pursuant to a cause of action for breach of contract in respect of the construction of the deck. The court did not address the issue of the amount of damages owed to Coolican, as this was a matter for the Tribunal to determine on remand.

Orders

Orders of the court

1. That the appeal be allowed in part;

2. That the case be remitted to the Tribunal for further hearing as to what set-off, if any, the appellant has pursuant to s 553C of the Corporations Act 2001 which arises pursuant to a cause of action for breach of contract in respect of the construction of the deck.

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:	Coolican v Bokam (NQ) Pty Ltd [2008] QDC 248
PARTIES:	CARY ELLEN COOLICAN (Appellant) v BOKAM (NQ) PTY LTD Trading as OZONE TROPICAL DESIGNS & CONSTRUCTION (Respondent)
FILE NO/S:	12 of 2008
DIVISION:	Trial Division
PROCEEDING:	Appeal
ORIGINATING COURT:	Commercial and Consumer Tribunal
DELIVERED ON:	10 October 2008
DELIVERED AT:	Cairns
HEARING DATE:	19 August 2008
JUDGE:	Everson DCJ
ORDER:	1. That the appeal be allowed in part; 2. That the case be remitted to the Tribunal for further hearing as to what set-off, if any, the appellant has pursuant to s 553C of the Corporations Act 2001 which arises pursuant to a cause of action for breach of contract in respect of the construction of the deck.
CATCHWORDS:	CONTRACTUAL ISSUE – CONSTRUCTION OF CONTRACT – BREACH OF CONTRACT - where an error of law was made by the Commercial and Consumer Tribunal when categorising a construction contract as a separate contract pursuant to s17A of the Domestic Building Contracts Act 2000 – where a further error of law regarding a potential set-off claim pursuant to s553C of the Corporations Act 2001.
COUNSEL:	R M Lilley Counsel for the Applicant/appellant M Jonsson Counsel for the Respondent
SOLICITORS:	Bottoms English Lawyers for the applicant/appellant Williams Graham & Carmen Solicitors for the Respondent