Forrest & Forrest v Abbott Builders Qld Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Forrest & Forrest v Abbott Builders QLD Pty Ltd [2021] QCATA 148

PARTIES:

PHILLIP FORREST
JAN FORREST

(applicants/appellants)

v

ABBOTT BUILDERS QLD PTY LTD

(respondent)

APPLICATION NO/S:

APL044-21

ORIGINATING APPLICATION NO/S:

BDL280-19

MATTER TYPE:

Appeals

DELIVERED ON:

10 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1.   The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where leave to appeal required before an appeal in relation to order granting leave to be legally represented – where grounds of appeal seek error of law and errors of mixed law and fact and errors of fact – where copy of application not received – procedural fairness – whether tribunal’s exercise of discretion miscarried

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28, s 29, s 31, s 43, s 142(3)(ii), s 146, s 147
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 35(3)

Pickering v McArthur [2010] QCA 341
Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Becker Watt Lawyers

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

REASONS FOR DECISION

1. Abbott Builders Qld Pty Ltd (the builder) sought leave of the Tribunal to be legally represented in proceedings. The Tribunal made an order pursuant to s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘ QCAT Act’) granting leave for the parties to be legally represented in a proceeding concerning a building dispute. Mr and Ms Forrest (the homeowners) seek to challenge the Tribunal’s decision on appeal.

2. The grounds of appeal sought to be agitated concern alleged breaches of procedural fairness; and alleged inaccuracies in the reasons for decision. Leave to appeal is required before an appeal in relation to a decision of the Tribunal, which is not a final decision in a proceeding may advance.[1]  

   [1]QCAT Act s 142(3)(ii).

The Tribunal’s decision

1. In deciding to grant leave for legal representation, the learned Senior Member considered the history of two proceedings for a building dispute that were filed by the Forrest’s, and which had been consolidated by the Tribunal. The first application seeks restitution and costs in respect of defective and incomplete works based on some 20 issues raised by the Forrest’s. The second application involves their claim for liquidated damages for late completion of building works.

2. The parties subsequently filed statements of evidence which more comprehensively identified the issues. The Tribunal summarises the issues for consideration as including the meaning of the properly construed contract; the date for practical completion; any agreed extension of the date for practical completion; whether the…