Heaver v Tyrrell - [2016] QCATA 107

CITATION:

Heaver & Anor v Tyrrell [2016] QCATA 107

PARTIES	Peter Heaver Yolande Heaver (Applicants/Appellants) v Michael Tyrrell (Respondent)
APPLICATION NUMBER:		APL 013-16

MATTER TYPE:

Minor Civil Dispute

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

5 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. The application for leave to appeal is allowed.

2. The appeal is partially allowed.

3. The original decision is amended down by the amount of $90.71.

4. Accordingly, the applicants are to pay the respondent the amount of $12,140.98.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicants seek to adduce new evidence – whether the applicants were afforded natural justice – whether the tribunal made a finding unsupported by evidence

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the parties entered a verbal agreement for the provision of building services – where the budget was exceeded – where the home owner refuses to pay the builder the excess amount – whether it was open to the tribunal to award the builder the claimed amount

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 138

Fox v Percy (2003) 214 CLR 118

Nadalini v RJW Developments Pty Ltd [2013] QCATA 23

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

This application for leave disputes the decision of a Magistrate in Nambour sitting as the tribunal to award the respondent builder the amount of $12,231.69 for building costs owed by the applicant homeowners.
The applicants entered into a verbal agreement with the respondent for the provision of building services. The original budget for the work was $20,000. During the course of the work, this budget was exceeded. Now, the applicants refuse to pay the extra amounts as they were incurred beyond the scope of the verbal agreement.
The leave application
The applicants expressly seek a “review of the case”. This is not the appeal tribunal’s role. To be eligible for leave to appeal, the applicants must demonstrate a legal or factual error that infected the original tribunal decision which, if not corrected on appeal, is likely to cause them substantial injustice.
The applicants’ ground of appeal is not immediately apparent in the application, but appears to be that the tribunal did not take relevant considerations taken into account because the applicants were not given enough time to state their case thoroughly.
Procedural fairness
Having read the transcript from the tribunal hearing in Nambour on 17 August 2015, it is true that the Magistrate did not ask the applicants if there was anything further they wished to add. However, at 1-6:20, Mr Heaver does say, “[T]hat’s about it”. The Magistrate also had the full written submissions of both parties at her disposal,…

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 Heaver v Tyrrell 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: [2016] QCATA 107
Decision Date: 5 July 2016

CaseChat Overview and Summary

The applicants in this case, Heaver and his wife, sought leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) that had awarded Tyrrell, a builder, $12,231.69 in unpaid works under a verbal contract for the provision of building services. The applicants contested the amount, claiming that the budget had been exceeded and that they had not been properly informed of the decision-making process. They also sought to present new evidence that they claimed would have been relevant to the original tribunal's decision.

The primary legal issue before the court was whether the applicants had been denied natural justice in the original tribunal's proceedings, and whether the tribunal had made a finding that was unsupported by evidence. The applicants argued that they had not been given an opportunity to respond to new evidence presented by the builder and that the tribunal's decision was therefore flawed. They also argued that the amount awarded was unreasonable and not supported by the evidence.

The court found that the applicants had not been denied natural justice, as the magistrate had considered all the evidence before making her decision. The court also found that the amount awarded was reasonable and supported by the evidence. The court noted that the applicants had not provided any evidence that would have changed the outcome of the original decision, and that the new evidence they sought to present was not reasonably available at the time of the original hearing. The court did, however, find that the tribunal had made an arithmetical error in calculating the amount owed, and reduced the award by $90.71.

The court allowed the application for leave to appeal, but partially allowed the appeal, reducing the award by $90.71. The applicants were ordered to pay the builder the amount of $12,140.98.

Orders

Orders of the court

THE APPEAL TRIBUNAL ORDERS THAT:

1. The application for leave to appeal is allowed.

2. The appeal is partially allowed.

3. The original decision is amended down by the amount of $90.71.

4. Accordingly, the applicants are to pay the respondent the amount of $12,140.98.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Having read the transcript from the tribunal hearing in Nambour on 17 August 2015, it is true that the Magistrate did not ask the applicants if there was anything further they wished to add. However, at 1-6:20, Mr Heaver does say, “[T]hat’s about it”. The Magistrate also had the full written submissions of both parties at her disposal, before handing down her decision ex tempore four months later. There is no evidence that this was not properly considered.Additional evidence It becomes apparent on reading the applicants’ submissions that the “thorough case” they seek to present to this appeal tribunal involves the presentation of new evidence they consider to be relevant but was not considered at first instance. The appeal tribunal usually only accepts fresh evidence on appeal that was not reasonably available at the first instance.[1][1] cf QCAT Act s 138; Nadalini v RJW Developments Pty Ltd [2013] QCATA 23 [15]. Despite the apparent arithmetical inconsistency, the amounts the applicants say they have paid so far ($8,187.50 for materials and $25,187.50 on the renovation project all up) may well be true, but even if they are, they either were impliedly rejected (or should have been claimed and verified)[2] at the first instance.[2]Their offer to bring the total renovation cost up to the budgeted amount of $20,000. See post, [17]. In any case, the award in question was a finding by the tribunal of an amount owing based on her acceptance of the evidence of Mr Tyrrell that he had not yet been paid for outstanding work that had been previously agreed to. As the new evidence relates to past work, it would not alter the result or justify disturbing findings of fact or inferences otherwise open on the evidence presented.[3][3] See, for example, Fox v Percy (2003) 214 CLR 118 [29]. As to the claim that the applicants “have spoken to one of Michaels Tyrrells (sic) contractors who has stated that Michael Tyrrell has a habit of telling his contractors to “GO SLOW as the client has plenty of money. We believe that he has fabricated the total hours spent on our job”; although the tribunal is not bound by the normal rules of evidence and has a discretion to ignore hearsay (what somebody says to a party out of court) and admit and act on any information from a reliable source according to its assessed weight, the applicants have not proposed any way of presenting the evidence (orally or by affidavit) so it can be tested and safely acted on and, if required, tested by the respondent. Nor is there any explanation of what the amount of any alleged difference is or how that accepting the evidence would practically change the order. The applicants also dispute the reasonableness of various charges and works. Again, however, they have not provided sufficient evidence for this appeal tribunal to conclude that they were not reasonably available to the original tribunal, or would have made any difference to the decision.Quantum The applicants claim that they “have not been given information as to how the Member reached her decision in favour of Michael Tyrrell for the amount of $12,231.69”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.