Hill-Douglas v Area Square Pty Ltd - [2010] QCATA 125

CITATION:

Hill-Douglas v Area Square Pty Ltd [2010] QCATA 125

PARTIES:	Mr Sholto Hill-Douglas and Mrs Louise Hill-Douglas (Applicants/Appellants)
v
Area Square Pty Ltd t/a Graceville Builders (Respondent)

APPLICATION NUMBER:

APL012-10

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Peta Stilgoe, Member

DELIVERED ON:

23 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal refused.

CATCHWORDS :

DOMESTIC BUILDING DISPUTE – LEAVE TO APPEAL – where the applicants appeal against findings of fact in relation to a building contract – where the applicants make no submissions as to substantial injustice or public interest – whether learned member’s findings not open on the evidence – whether leave to appeal should be granted

BUILDING CONTRACT – where no cost escalation clause – where variation for increased costs due to delay – whether variation is valid

Domestic Building Contracts Act 2000, s 56
Queensland Civil and Administrative Tribunal Act 2009, s 142(3)

Area Square Pty Ltd v Hill Douglas [2010] QCAT 008, cited
Bucknell v Robins [2008] QCA 214, applied
Chambers v Jobling (1986) 7 NSWLR 1, cited
Dearman v Dearman (1908) 7 CLR 549, cited

Fox v Percy (2003) 197 ALR 201, cited

Gardenia Homes Pty Ltd v The Body Corporate for Williams Retreat CTS 23581 [2009] CCT KA006-09, applied
Suvaal v Cessnock City Council (2003) 200 ALR 1, cited
Tyler v Queensland Building Services Authority [2010] QDC 40, applied

Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20, applied

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Self-represented
RESPONDENT:	Sawford Lawyers

REASONS FOR DECISION

The Appeal Tribunal

[1] In May 2006 the parties entered into a contract for the construction of a house, which was completed by Area Square Pty Ltd (Area Square) in 2007. Mr and Mrs Hill-Douglas did not pay the final invoice and so Area Square filed proceedings in the Commercial and Consumer Tribunal in January 2008. Mr and Mrs Hill-Douglas filed a counterclaim, and the parties have been in dispute ever since.

[2] When the proceeding finally came on for hearing, the matters of dispute had been reduced to only six issues. Three of those issues are the subject of this appeal:

(a) Variation Two;

(b) The driveway variation;

(c) The cornices.

[3] Mr and Mrs Hill-Douglas concede that the appeal involves questions of mixed fact and law, so leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3).

[4] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?

[5] Mr…

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: [2010] QCATA 125
Decision Date: 23 November 2010

CaseChat Overview and Summary

The case of Hill-Douglas v Area Square Pty Ltd involved a dispute over a domestic building contract. The applicants, Hill-Douglas, sought to appeal against findings of fact made by the court below, which pertained to a building contract between the parties. The appeal was brought before the court to determine whether the applicants' grounds for appeal were sufficient to warrant leave to appeal. The primary issue before the court was whether the learned member's findings were open on the evidence and whether there was a substantial injustice or public interest that warranted the granting of leave to appeal. Additionally, the court had to consider whether the variation for increased costs due to delay was valid in the absence of a cost escalation clause in the building contract.

The court found that the applicants had not made any submissions as to substantial injustice or public interest, which is a critical factor in determining whether leave to appeal should be granted. The court examined the evidence and determined that the learned member's findings were open on the evidence. The court concluded that there was no substantial injustice or public interest that warranted the granting of leave to appeal. Furthermore, the court found that the variation for increased costs due to delay was valid, as the applicants had failed to establish that the variation was unreasonable or unjust.

In light of the above findings, the court refused the applicants' application for leave to appeal. The court held that the applicants had not demonstrated that the learned member's findings were incorrect or that there was a substantial injustice or public interest that warranted the granting of leave to appeal. The court also held that the variation for increased costs due to delay was valid in the absence of a cost escalation clause in the building contract. The court's decision was based on a thorough examination of the evidence and the applicable legal principles. The court's findings and conclusions were clear and well-reasoned, and the applicants' appeal was accordingly dismissed.

Orders

Orders of the court

Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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