Franklin (Qld) Pty Ltd v Holliday - [2017] QCAT 339

CITATION:	Franklin (Qld) Pty Ltd v Holliday [2017] QCAT 339
PARTIES:	Franklin (Qld) Pty Ltd (Applicant)
v
Fiona Holliday and David Holliday (Respondent) Francis Paul John Galea (Second Respondent by Counter-Application)
APPLICATION NUMBER:	BDL093-14
MATTER TYPE:	Building matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Deane
DELIVERED ON:	1 September 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Francis Paul John Galea is joined as Second Respondent by Counter-Application. 2. Fiona Holliday and David Holliday must file in the Tribunal and provide to Franklin (Qld) Pty Ltd and Francis Paul John Galea a complete copy of the pool contract, including the general conditions, by 4:00pm on 29 September 2017. 3. Fiona Holliday and David Holliday must file two (2) copies in the Tribunal and give one (1) copy to Franklin (Qld) Pty Ltd and Francis Paul John Galea of their amended counter-application to include the claims made against Francis Paul John Galea, by 4:00pm on 29 September 2017. 4. Fiona Holliday and David Holliday must file two (2) copies in the Tribunal and give one (1) copy to Franklin (Qld) Pty Ltd and Francis Paul John Galea of any further statements of evidence including expert evidence upon which they intend to rely, by 4:00pm on 29 September 2017. 5. Franklin (Qld) Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of its Response to the amended counter-application, by 4:00pm on 27 October 2017. 6. Franklin (Qld) Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of any further statements of evidence including expert evidence upon which it intends to rely, by 4:00pm on 27 October 2017. 7. Francis Paul John Galea must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of his Response to the amended counter-application, by 4:00pm on 27 October 2017. 8. Francis Paul John Galea must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of any statements of evidence including expert evidence upon which he intends to rely, by 4:00pm on 27 October 2017. 9. The application is listed for an experts’ conclave in Brisbane at 1:30pm on 4 December 2017. 10. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required: a. for the conduct of the conclave; and b. for the conduct of the proceeding. 11. The parties must file in the Tribunal two (2) copies of: a. the name, specialisation and contact details of the experts to participate in the Conclave; and b. an agreed list of issues to be considered by the experts at the Conclave; and c. a list of documents provided to their experts, by 4:00pm on 10 November 2017. 12. If the parties are unable to agree on a set of issues,…

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.

Keep reading for free

Create a free CaseChat account to read Franklin (Qld) Pty Ltd v Holliday and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCAT 339
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the case of Franklin (Qld) Pty Ltd v Holliday, the Queensland Civil and Administrative Tribunal (QCAT) addressed issues related to joinder of causes of action, contractual obligations, and remedies for breach of contract. Franklin (Qld) Pty Ltd, the applicant, sought to join Francis Paul John Galea as a second respondent and filed an amended counter-application against the Hollidays, the respondents, for the recovery of outstanding payments and costs associated with the construction of a pool. The Hollidays, in their counter-application, sought relief against both Franklin and Galea for alleged breaches of contract and negligence in the construction of their pool.

The central legal issues in this case revolved around the joinder of causes of action and parties in the proceedings, as well as the interpretation and enforcement of contractual obligations. Specifically, the court had to determine whether it was appropriate to join Galea as a second respondent and whether the Hollidays' amended counter-application should be allowed to proceed with claims against both Franklin and Galea. Additionally, the court needed to address the procedural requirements for expert evidence and the scheduling of the hearing and conclave.

The QCAT held that the joinder of Galea as a second respondent was appropriate as it would allow for the resolution of all claims in one proceeding, ensuring efficiency and avoiding multiplicity of actions. The court also found that the Hollidays' amended counter-application should be allowed to proceed, as it was necessary to include all relevant parties and claims to fully address the dispute. The court set out detailed orders for the exchange of documents and expert evidence, as well as the scheduling of the conclave and hearing. These orders aimed to ensure that all parties had the opportunity to present their evidence and that the proceedings were conducted in an orderly and efficient manner.

Orders

Orders of the court

1. Francis Paul John Galea is joined as Second Respondent by Counter-Application.

2. Fiona Holliday and David Holliday must file in the Tribunal and provide to Franklin (Qld) Pty Ltd and Francis Paul John Galea a complete copy of the pool contract, including the general conditions, by 4:00pm on 29 September 2017.

3. Fiona Holliday and David Holliday must file two (2) copies in the Tribunal and give one (1) copy to Franklin (Qld) Pty Ltd and Francis Paul John Galea of their amended counter-application to include the claims made against Francis Paul John Galea, by 4:00pm on 29 September 2017.

4. Fiona Holliday and David Holliday must file two (2) copies in the Tribunal and give one (1) copy to Franklin (Qld) Pty Ltd and Francis Paul John Galea of any further statements of evidence including expert evidence upon which they intend to rely, by 4:00pm on 29 September 2017.

5. Franklin (Qld) Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of its Response to the amended counter-application, by 4:00pm on 27 October 2017.

6. Franklin (Qld) Pty Ltd must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of any further statements of evidence including expert evidence upon which it intends to rely, by 4:00pm on 27 October 2017.

7. Francis Paul John Galea must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of his Response to the amended counter-application, by 4:00pm on 27 October 2017.

8. Francis Paul John Galea must file two (2) copies in the Tribunal and give one (1) copy to Fiona Holliday and David Holliday of any statements of evidence including expert evidence upon which he intends to rely, by 4:00pm on 27 October 2017.

9. The application is listed for an experts’ conclave in Brisbane at 1:30pm on 4 December 2017.

10. The member of the Tribunal convening the conclave shall have such powers, including making directions or other orders, as are required:

a. for the conduct of the conclave; and

b. for the conduct of the proceeding.

11. The parties must file in the Tribunal two (2) copies of:

a. the name, specialisation and contact details of the experts to participate in the Conclave; and

b. an agreed list of issues to be considered by the experts at the Conclave; and

c. a list of documents provided to their experts, by 4:00pm on 10 November 2017.

12. If the parties are unable to agree on a set of issues, each party must file in the Tribunal two (2) copies and give to each other one (1) copy of a list of issues they propose to be considered by the experts at the Conclave, by 4:00 pm on 17 November 2017.

13. In either case, the Tribunal will settle the list of issues to be considered by the experts at the Conclave and will provide the settled list to each party and to the experts, by 4:00pm on 24 November 2017.

14. The Registrar must provide a copy of the experts’ joint report to the parties within seven (7) days of receipt by the Tribunal.

15. If the experts prepare a joint report, that report will be the experts’ evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.

16. Except with the Tribunal’s leave, a party may not:

a. raise a matter not already mentioned in the joint report.

b. submit evidence from an expert (whether or not they participated in the conclave) that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report.

c. submit evidence from any other expert about matters mentioned in the joint report.

17. The experts may attend the conclave by telephone.

18. The application is listed for a Directions Hearing in Brisbane at 1:30pm on 7 February 2018.

19. The application is listed for a 2 day Hearing in Mackay on a date to be advised.

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.