Gedoun Constructions Pty Ltd v Agius - [2024] QCATA 2

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Agius [2024] QCATA 2

PARTIES:

GEDOUN CONSTRUCTIONS PTY LTD

(applicant/appellant)

v

MARK ELLIOT AGIUS

(respondent)

APPLICATION NO/S:

APL060-22

APL278-22

ORIGINATING APPLICATION NO/S:

BDL308-18

MATTER TYPE:

Appeals

DELIVERED ON:

16 January 2024

HEARING DATE:

12, 13 and 14 July 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

APL060-22

1.     Leave to appeal refused.

2.     Appeal dismissed.

3.    The parties are to file and exchange submissions on costs not exceeding 3 pages in length within 14 days.

4.     The parties are to file and exchange submissions in response not exceeding 3 pages in length within 7 days thereafter.

5.     Costs will be decided on the papers.

APL278-22

1.    Leave to appeal refused

2.    The parties are to file and exchange submissions on costs not exceeding 3 pages in length within 14 days.

3.     The parties are to file and exchange submissions in response not exceeding 3 pages in length within 7 days thereafter.

4.     Costs will be decided on the papers.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where a home owner sued a builder – where the owner claimed the construction was not built to correct cyclone rating standard – where the owner succeeded in his claim and the tribunal ordered the builder to pay costs of rectification to bring the construction to correct cyclone rating standard – where the builder appealed that decision – whether the member erred in construing standards – where standards were construed by the appeal tribunal – whether the member failed to address issues raised by an expert in an early report where the expert later took part in a conclave of experts and signed a joint report – whether the costs of bringing the construction up to higher cyclone rating standard were costs payable by the owner under the contract.

Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B s 19, s 21

Coulton v Holcombe (1986) 162 CLR

Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446
O'Brien v. Komesaroff (1982) 150 CLR 310
Parr v Queensland Police Service [2021] QCA 216
Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

Applicant:

P Somers instructed by Russells, Solicitors

Respondent:

M Cooke instructed by Becker Watt Lawyers

REASONS FOR DECISION

The appellant, Gedoun Constructions Pty Ltd, developed subdivided land in a suburb of Townsville.
The respondent, Mr Agius, bought a block of land in the subdivision and entered into a building contract with the appellant.
Construction finished around August 2018 with the appellant claiming the work was practically complete. Disputes regarding the quality of some of the work arose. The Queensland Building and Construction Commission issued a direction to rectify to the appellant.
An issue arose regarding 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.

Continue reading Gedoun Constructions Pty Ltd v Agius

Details

AGLC: Gedoun Constructions Pty Ltd v Agius [2024] QCATA 2
Case: [2024] QCATA 2
Decision Date: 16 January 2024

CaseChat Overview and Summary

The case of Gedoun Constructions Pty Ltd v Agius involved a dispute between a homeowner and a builder. The homeowner, Mr. Agius, sued Gedoun Constructions, claiming that a residential property constructed by the builder did not meet the required cyclone rating standards. The dispute was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). Mr. Agius was successful in his claim, and the tribunal ordered the builder to pay the costs to rectify the construction and bring it up to the correct cyclone rating standard.

The legal issues that the court had to decide included whether the QCAT member had erred in construing the relevant standards and whether the member failed to address issues raised by an expert in an early report where the expert later took part in a conclave of experts and signed a joint report. Another issue was whether the costs of bringing the construction up to a higher cyclone rating standard were costs payable by the owner under the contract.

The court held that there was no substantial injustice to the appellant that required to be corrected in respect of the costs decision, nor was there a reasonable argument that there is an error to be corrected. The court found that leave is required to appeal a costs order and concluded that leave to appeal was refused. The appeal was dismissed, and the parties were directed to file and exchange submissions on costs not exceeding 3 pages in length within a specified timeframe. Costs were to be decided on the papers.

Orders

Orders of the court

APL060-22

1. Leave to appeal refused.

2. Appeal dismissed.

3. The parties are to file and exchange submissions on costs not exceeding 3 pages in length within 14 days.

4. The parties are to file and exchange submissions in response not exceeding 3 pages in length within 7 days thereafter.

5. Costs will be decided on the papers.

APL278-22

1. Leave to appeal refused

2. The parties are to file and exchange submissions on costs not exceeding 3 pages in length within 14 days.

3. The parties are to file and exchange submissions in response not exceeding 3 pages in length within 7 days thereafter.

4. Costs will be decided on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Leave is required to appeal a costs order.[8] There is no substantial injustice to the appellant required to be corrected in respect of the costs decision nor is there reasonable argument that there is an error to be corrected. [8]QCAT Act, s 142(3)(a)(iii)Conclusion and final orders in proceeding APL278-22 Leave to appeal is refused. Costs in APL060-22 and APL278-22 The parties will be directed to file submissions on costs.

Ratio Decidendi

Legal Principle Established

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