Gedoun Constructions Pty Ltd v Mark Elliot Agius

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Mark Elliot Agius [2023] QCATA 98

PARTIES:

GEDOUN CONSTRUCTIONS PTY LTD

(applicant/appellant)

v

MARK ELLIOT AGIUS

(respondent)

APPLICATION NO/S:

APL060-22

ORIGINATING APPLICATION NO/S:

BDL308-18

MATTER TYPE:

Appeals

DELIVERED ON:

12 July 2023

HEARING DATE:

12 July 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

1.   The application for leave to rely upon fresh evidence filed 24 October 2022 is refused.

2.   The application for leave to rely upon fresh evidence filed 27 April 2023 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where fresh evidence filed on application for leave to appeal – whether appropriate to allow fresh evidence – whether evidence reasonably available at first instance

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(2)

Allen v Queensland Building and Construction Commission [2023] QCATA 66

CDJ v VAJ [1998] HCA 67

Clarke v Japan Machines (Australia) PtyLtd [1984] 1 Qd R 404

APPEARANCES & REPRESENTATION:
Applicant:	Mr Somers instructed by Russells
Respondent:	Mr Cooke instructed by Becker Watt Lawyers

REASONS FOR DECISION

1. Both parties have filed applications to adduce fresh evidence in the appeal. The application by the respondent (Mark Elliot Agius) is said to be in response to the application by the appellant (Gedoun Constructions Pty Ltd). Mr Cooke for the respondent this morning said the respondent opposed the appellant’s applicant for fresh evidence and if that application failed, however, the respondent’s application in reply would not be pursued.

2. The appellant’s proposed fresh evidence supports a ground of appeal that the member below failed to consider all possible design pathways open to the appellant to meet the performance requirements and therefore the legislations requirements set by the National Construction Code (‘the NCC'), in respect of the design and construction of the house.

3. The appellant claims a performance solution assessment method was available which established compliance but the member turned her mind only to a deemed to satisfy solution by way of compliance with certain standards. The appellant submits that complying with the performance requirements through a performance solution was raised in the appellant’s written closing submissions at hearing and in oral submissions. The references relied on are at best oblique. Mr Cooke said there was no cross-examination of the experts below about a performance solution in lieu of deemed to comply solutions and that where the construction failed by a small margin to meet the standards, it was a matter of a fudge factor on the part of the appellant’s experts rather than a matter of an alternative performance solution in play.

4. The fresh evidence proposed to be led consists of an affidavit by Mr Messer, an engineer who proposes to give evidence of his involvement in the construction work as the engineer who prepared the engineering plans for the house. In the affidavit he sets out what steps he took to assess wind classification.…