Edwards v Sovereign Homes Qld Pty Ltd - [2022] QCAT 244

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Edwards v Sovereign Homes Qld Pty Ltd [2022] QCAT 244

PARTIES:

DONALD BRUCE EDWARDS

(applicant)

v

SOVEREIGN HOMES QLD PTY LTD

(respondent)

APPLICATION NO/S:

REO004-22

MATTER TYPE:

Building matters

DELIVERED ON:

28 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Application to reopen BDL235-15 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY – where the applicant claims new evidence has been discovered – whether the applicant would suffer substantial injustice – whether the reopening discretion should be exercised

Queensland Civil and Administrative Tribunal Act 2009 (Qld).

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Edwards v Sovereign Homes Qld Pty Ltd [2020] QCTA 146

Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4

Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 410
Sovereign Homes Qld Pty Ltd v Edwards [2018] QCAT 276

Stanton v Electrics Downunder Pty Ltd [2019] QCAT 158

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

Self-represented

Respondent:

P W Evans Solicitor

REASONS FOR DECISION

In 2015, Sovereign Homes Qld Pty Ltd (‘Sovereign’) commenced proceedings against Donald Bruce Edwards to recover monies owing pursuant to a building contract for renovations to his home completed in December 2014. Mr Edwards counter-applied for damages for defective work.[1]
[1]Sovereign Homes Qld Pty Ltd v Edwards [2018] QCAT 276
After 3 days of hearing I delivered my decision in this matter on 21 August 2018. On 3 December 2018 I delivered a decision in respect to costs of the initial proceedings.[2]
[2]Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 410
Mr Edwards unsuccessfully appealed both decisions. The Appeal Tribunal delivered its decision on 23 October 2020.[3]
[3]Edwards v Sovereign Homes Qld Pty Ltd [2020] QCTA 146
Mr Edwards then unsuccessfully appealed to the Court of Appeal.[4] The Court of Appeal handed down its decision on 4 February 2022.
[4]Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4
Mr Edwards now seeks to reopen the costs part of the proceedings pursuant to s. 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). (‘the QCAT Act’).
The decision for which a reopening is sought relates to the following orders I made:
(c) Mr Edwards pay 70% of Sovereign’s costs to be agreed and failing agreement to be assessed on the Magistrates Court scale appropriate to amounts exceeding $50,000 on a standard basis;
(d) Sovereign to pay Mr Edwards 30% of his costs of the cross-application to be agreed and failing agreement to be assessed on the Magistrates Court scale appropriate to amounts exceeding $50,000 on a standard basis;
In Stanton v Electrics Downunder Pty Ltd

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: [2022] QCAT 244
Decision Date

CaseChat Overview and Summary

In this matter, Donald Bruce Edwards applied for the reopening of proceedings relating to costs. Sovereign Homes Qld Pty Ltd opposed the application. The case originated from a building contract for renovations to Mr Edwards' home completed in December 2014. The parties disputed the quality of the work, leading to Mr Edwards counter-applying for damages. The Tribunal held hearings over three days and delivered its decision on 21 August 2018. The matter was subsequently appealed and determined by the Court of Appeal on 4 February 2022. Mr Edwards now seeks to reopen the costs part of the proceedings on the basis of alleged new evidence, which he claims would have led to a different outcome.

The key legal issue for the Tribunal was whether the application to reopen the costs orders should be granted. The Tribunal considered the statutory criteria under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for reopening proceedings, particularly whether the applicant would suffer substantial injustice if the proceeding was not reopened because significant new evidence had arisen that was not reasonably available when the proceeding was first heard and decided. The Tribunal noted that the evidence relied upon by Mr Edwards was not truly new evidence but rather an interpretation of existing evidence that was already available during the original hearing. The Court of Appeal had considered the same evidence and reached a different conclusion, but this did not constitute fresh evidence. The Tribunal also found no evidence that the respondent or its legal advisors acted with any intention to mislead the Tribunal.

The Tribunal concluded that the application to reopen the costs orders should be refused. The findings of the Court of Appeal were not fresh evidence, and the application did not meet the criteria for reopening under the QCAT Act. The application was ultimately unsuccessful.

Orders