Henley Properties (Qld) Pty Ltd v Salam - [2022] QCAT 273

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Henley Properties (Qld) Pty Ltd v Salam [2022] QCAT 273

PARTIES:

HENLEY PROPERTIES (QLD) PTY LTD

(applicant)

v

MUHAMMAD SALAM AND SEOWMEE SALAM

(respondent)

APPLICATION NO/S:

BDL122-13

MATTER TYPE:

Building matters

DELIVERED ON:

8 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

1. Leave refused.

2. Application is Dismissed.

CATCHWORDS

PRACTICE AND PROCEDURE – Application for leave to make an application under s.84 Domestic Building and Contracts Act 2000 following an appeal, failure to do so after closing case due to the neglect of the party or its legal advisors – Principle of finality – Exercise of discretion in interests of justice

Domestic Building and Contracts Act 2000 (Qld)

Autodesk v Dyason [No2] (1993) 176 CLR 300

Burns v Joseph [1969] Qd R 130

CC Containers Pty Ltd v Lee [No 5] [2013] VSC 619

Di Stasio Pty Ltd v R & K Services [2018] VSCA 340

Smith v NSW Bar Association (1992) 176 CLR 256

Tate v McLeod (1969) Qd R 217

APPEARANCES & REPRESENTATION:

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

I have been asked to consider whether Henley Properties (Qld) Pty Ltd (‘the builder’) should be granted leave to make a claim pursuant to s.84 of the Domestic Building Contracts Act 2000 (DBCA).
This matter has a long history. The Application for domestic building dispute was heard by the Tribunal on 20 and 21 March 2014. A decision was delivered on 3 September 2014. Both parties were successful. Muhammad Salam and Seowmee Salam (‘the homeowners’), appealed the decision whereby the builder succeeded in recovering the cost of variations. They were successful in setting aside that part of the decision which amounted to $17,779.53 after setting off their successful claim for defective work.
The Appeal Tribunal ordered, inter alia, that the matters be remitted to the Tribunal for determination according to law.
Following the appeal, the builder filed an Application for Miscellaneous Matters (“the Application”) seeking orders in respect of the reconsideration. In addition to the relief sought in the original proceedings, it seeks alternative relief as follows:
… pursuant to section 84 (2)(b) and section 84 (6)(a) of the Act, the applicant applies for the Tribunal's approval to recover the amount of $21,417.00 for variation work being the increase in the contract price stated in the appropriate variation documents.
I was asked to determine whether the builder can seek such relief and rely on fresh evidence or whether the learned member who heard the matter should determine the matter on the evidence already before him.
On 21 October 2021 I determined that it could and made the following directions:
(a)The (the builder) file in the Tribunal its statements of evidence addressing:
(a) The reasons for its delay in making its claim under s.84 of the Domestic Building and Contracts Act 2000 (Qld).
(b) All…

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.

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Details

Case: [2022] QCAT 273
Decision Date

CaseChat Overview and Summary

In the matter of Henley Properties (Qld) Pty Ltd v Salam, the builder sought leave to apply for reconsideration of the decision under section 84 of the Domestic Building and Contracts Act 2000 (Qld) after a long-standing dispute with the homeowners over building works. The builder had previously succeeded in recovering the cost of variations in the original proceedings but lost on appeal. The builder now sought to recover the cost of variations through an alternative claim. The tribunal had to determine whether the builder should be granted leave to make such a claim. The builder's general manager provided a detailed statement of evidence explaining the reasons for the delay in making the claim, but the homeowners did not provide any material in response. The tribunal had to consider whether the builder's neglect or inadvertence led to the delay and whether granting leave would be in the interests of justice.

The tribunal considered the principle of finality and the discretion to grant leave to reopen a case after judgment. The tribunal noted that the builder's failure to bring the s.84 application was not due to inadvertence but rather neglect of the builder or its solicitor. The tribunal also noted that there should be finality to litigation and that such an application should have been readily apparent to any lawyer practising in this jurisdiction. The tribunal refused leave to bring the application and dismissed it.

This case highlights the importance of ensuring that all claims are properly pleaded and that there is finality to litigation. It also emphasises the need for parties to take reasonable steps to ensure that their legal advisors are properly briefed and that any potential claims are identified and pursued in a timely manner.

Orders