Edwards v Sovereign Homes (QLD) Pty Ltd

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QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146

PARTIES:

DONALD BRUCE EDWARDS
(appellant)
v

SOVEREIGN HOMES (QLD) PTY LTD

(respondent)

APPLICATION NO/S:

APL244-18; APL356-18

ORIGINATING APPLICATION NO/S:

BDL253-15

MATTER TYPE:

Appeals

DELIVERED ON:

23 October 2020

HEARING DATE:

10 June 2019; On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Burke

ORDERS:

In APL244-18:

1.   Applications for leave to adduce fresh evidence refused.

2.   Leave to appeal refused.

3.   Appeal dismissed.

In APL356-18:

Leave to appeal refused.

In APL244-18 and APL356-18:

1.   The parties are to file and exchange submissions on the question of the costs of the appeals within fourteen (14) days of the date of this decision.

2.   The parties are to file and exchange submissions in reply within seven (7) days thereafter.

3.   A submission must not exceed five (5) pages in length, in 12 pitch font and 1.5 line spacing.

4.   The Appeal Tribunal will thereafter determine the costs of the appeals, on the papers.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – STRONG REASONS FOR INTERFERENCE – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – ADMISSION OF FURTHER EVIDENCE – where appellant sought to appeal on questions of law, questions of fact and questions of mixed law and fact – where appellant sought to adduce fresh evidence – where appellant contended that decision of Development Tribunal was fresh evidence – where the appeal tribunal can receive fresh evidence in relation to a ground of appeal relating to an error of law only 

DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES - where appellant claimed  damages for solatium – where appellant claimed damages for loss of amenity – where appellant claimed damages for inconvenience and distress – where held that damages for loss of amenity not recoverable – where held that damages for non-physical inconvenience and distress only recoverable consequent upon real and substantial physical inconvenience – where appellant failed to discharge requisite onus of proof

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – OTHER MATTERS – where appellant asserted error in finding below regarding practical completion - where appellant claimed building work did not comply with contract – where the finding was open on the evidence

Domestic Building Contracts Act 2000 (Qld) repealed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 143(2)(b), s 146, s 147

Addis v Gramophone Co Ltd [1909] AC 408

Archibald v Powlett [2017] VSCA 259

Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 33

Baltic Shipping Co v Dillon (1993) 111 ALR 289

Bawden v ACI Operations Pty Ltd [2003] QCA 293

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bellgrove v Eldridge (1954) 90 CLR 613

Benham v Gambling [1941] AC 157

Boncristiano v Lohmann [1998] 4 VR 82

Camden v McKenzie [2008] 1…

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Details
Case
[2020] QCATA 146
Decision Date

CaseChat Overview and Summary

Donald Edwards (Edwards) sought to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) and sought leave to adduce further evidence on appeal. The appeal related to a dispute over a contract for the construction of an extension to a property owned by Edwards. Sovereign Homes (Sovereign) as builder, entered into a contract with Edwards to carry out alterations and additions to the property. The dispute arose after the issue of Sovereign’s final claim for the sum of $46,155.20. Edwards denied that practical completion had been reached and made a cross-claim in the sum of $133,379.30, primarily relating to alleged defects in the works. The tribunal found in favour of Sovereign. Edwards sought to appeal the decision of the tribunal. The issues in the appeal related to the admissibility of fresh evidence, the scope of the appeal, the tribunal's finding of fact that practical completion had been achieved, and the damages awarded. The appeal tribunal found that the appeal was not an appropriate means to have the tribunal’s decision reviewed. The tribunal was satisfied that it had correctly exercised its discretion in refusing leave to adduce further evidence. The appeal tribunal was also satisfied that it should not interfere with the tribunal's finding of fact that practical completion had been achieved, as that finding was open on the evidence. In relation to the damages, the appeal tribunal found that damages for loss of amenity were not recoverable. Damages for non-physical inconvenience and distress were only recoverable consequent upon real and substantial physical inconvenience. The appeal tribunal found that Edwards had failed to discharge the requisite onus of proof in relation to damages for non-physical inconvenience and distress. The appeal tribunal dismissed the appeal and refused leave to appeal. The parties were ordered to file and exchange submissions on the question of the costs of the appeals within fourteen days of the date of the decision. The parties were to file and exchange submissions in reply within seven days thereafter. The appeal tribunal would thereafter determine the costs of the appeals on the papers.

Orders

Orders of the court

In APL244-18:

1. Applications for leave to adduce fresh evidence refused.

2. Leave to appeal refused.

3. Appeal dismissed.

In APL356-18:

Leave to appeal refused.

In APL244-18 and APL356-18:

1. The parties are to file and exchange submissions on the question of the costs of the appeals within fourteen (14) days of the date of this decision.

2. The parties are to file and exchange submissions in reply within seven (7) days thereafter.

3. A submission must not exceed five (5) pages in length, in 12 pitch font and 1.5 line spacing.

4. The Appeal Tribunal will thereafter determine the costs of the appeals, on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant seeks the following orders:(a)leave to appeal the substantive decision;(b)if leave is granted, appeal of the substantive decision be allowed;(c)award of the sum of $46,155.20 plus interest awarded to Sovereign be set aside;(d)leave to appeal the costs decision;(e)by way of application filed 14 Decembers 2018, a direction that leave be granted to adduce evidence and documents not before the tribunal at first instance (‘the further evidence application’) or alternatively fresh evidence being a decision of the Development Tribunal dated 4 September 2018 setting aside the certifier’s approval of the alternative solution.Appeal APL244-18 – the substantive decisionBackground The appellant, Donald Edwards (‘Edwards’), is the owner of a residential home located at 35 Cameron Street, Fairfield, Brisbane (‘the property’). The respondent, Sovereign Homes Qld Pty Ltd (‘Sovereign’), as builder, entered into a written contract dated 30 June 2014 with Edwards to carry out alterations and additions to the property. The contract was in the standard form of an HIA Queensland Plain Language Alteration, Addition and Renovation contract. Work commenced on 25 July 2014 and involved the construction of an extension to the existing house adding a fourth level with three bedrooms, a bathroom, separate toilet and a retreat. Work was carried out satisfactorily until the relationship between Edwards and representatives of Sovereign began to deteriorate in November 2014. The dispute arose after the issue of Sovereign’s final claim for the sum of $46,155.20. Edwards denied that practical completion had been reached and made a cross-claim in the sum of $133,379.30, primarily relating to alleged defects in the works in addition to a claim for consolation damages and moneys alleged to be owing arising out of an insurance payment made to Sovereign as a result of two storm events during the construction period. The tribunal delivered its decision on 21 August 2018 and an application seeking leave to appeal and appeal that decision was filed by Edwards on 18 September 2018. On 14 December 2018, Edwards delivered extensive submissions in support of the application for leave to appeal and filed an application seeking leave to adduce further evidence on the appeal. The tribunal delivered its decision in relation to costs and interest on 3 December 2018. An application seeking leave to appeal the costs decision was filed on 21 December 2018. Submissions regarding the appeal of the costs decision were delivered by Edwards on 8 February 2019. On 1 March 2019, Sovereign filed submissions responding to Edwards’ submissions in relation to the appeal of the substantive decision and in relation to Edwards’ application seeking leave to adduce further evidence. Edwards delivered extensive submissions in reply to Sovereign’s submission on 22 March 2019. Objections to the nature of the reply submissions delivered by Edwards were filed by Sovereign on 11 June 2019. Further submissions were delivered by Edwards and Sovereign respectively on 14 June 2019 and 18 June 2019 in relation to the material included in the lengthy submissions.

Ratio Decidendi

Legal Principle Established

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