Hill-Douglas v Area Square Pty Ltd
[2010] QCATA 125
•23 November 2010
| 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 Area Square Pty Ltd v Hill Douglas [2010] QCAT 008, 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 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 and Mrs Hill-Douglas have not addressed these issues on the question of leave. Area Square points out the principles, but takes the argument no further. For our part, we cannot see that there is any question of general importance involved in this appeal where a decision of this Appeal Tribunal would be to the public advantage.
[6] Nor are we able to see any error in the decision sought to be appealed which involves or creates, or establishes, a substantial injustice – or, indeed, any injustice – to Mr and Mrs Hill-Douglas.
[7] In Tyler v Queensland Building Services Authority[1] the appellant argued that, if leave was not given, he would be required to complete work for which he had not been paid. Judge Ryrie did not consider that this amounted to “substantial injustice”. Similarly in Bucknell v Robins[2] the Court of Appeal was of the view that financial disadvantage, in the absence of hardship did not amount to “substantial injustice”.
[1] [2010] QDC 40.
[2] [2008] QCA 214.
[8] Mr and Mrs Hill-Douglas are in no different position; certainly, if leave is refused they will have to pay money to Area Square that they do not want to pay, but there is no evidence that this will cause them financial hardship.
[9] For these reasons, Ieave should not be granted. For completeness, however, we have gone on to consider whether there is any reasonably arguable case of error, and a reasonable prospect that Mr and Mrs Hill-Douglas could obtain substantive relief.
Variation 2
Area Square claimed Variation 2 on 7 September 2006 for “delay due to the DA, alterations to plans as per DA requirements and increase in costs due to time delay with DA”. Mr and Mrs Hill-Douglas paid the variation, but later claimed that it was, in fact, a claim for delay costs pursuant to section 26 of the contract. At the hearing, they argued that the variation was a cost escalation; that they had not agreed to a cost escalation clause; that there were no cost increases because of the delay; and, therefore, Area Square was not entitled to the variation.
Area Square contended that Mr and Mrs Hill-Douglas agreed to the variation, in circumstances where Area Square was entitled to terminate the contract because of the delays.
Mr and Mrs Hill-Douglas have submitted a careful study of the evidence presented at the hearing, pointing out why their view of the evidence should be preferred to that formed by the learned Member. They point to various paragraphs of the learned Member’s decision and suggest that he was in error, and urge this Appeal Tribunal to substitute its own decision.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining them[3].
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case[4]. As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must not ‘shrink from giving effect to its own conclusion’.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (supra) at 209 per Gleeson CJ, Gummow and Kirby JJ.
The findings under attack are not contrary to the compelling inferences to be drawn from the evidence of this case. The particular matters to which this Appeal Tribunal’s attention is drawn were the subject of submissions to the learned Member. The paragraphs of his decision to which Mr and Mrs Hill-Douglas point show that he considered those matters carefully and we are not persuaded his consideration was misguided or that the conclusions he reached were wrong. That he did not agree with Mr and Mrs Hill-Douglas is not, itself, a ground for appeal.
Their primary argument is that because they had not signed the cost escalation clause in the contract, the effect of the variation is to avoid the provisions of s 56 of the Domestic Building Contracts Act 2000 (DBC Act) and that could not be the intention of the legislature.
That argument was not raised before the learned Member. Parties are usually bound by the case they present at first instance except in exceptional circumstances[6]. Mr and Mrs Hill-Douglas do not explain why this issue was not raised, and we can find no exceptional circumstance compelling its consideration now.
6Owners Strata Plan No. 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA; see also Water Board v Moustakas (1988) 180 CLR 491 at 497, Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 41 NSWLR 631 at 645-6 and University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 at 483. All these cases were discussed by Mr Dorney QC (as his Honour then was) in Gardenia Homes Pty Ltd v The Body Corporate for Williams Retreat CTS 23581 [2009] CCT KA006-09, at [33].
In any event, their argument might have validity if the parties were some way into the performance of the contract. Here, the learned Member accepted that the contract was voidable at Area Square’s option due to the delay. He found that the variation was agreed to in an arm’s length transaction[7] and was probably formulated in lieu of a fresh contract. We acknowledge that Mr and Mrs Hill-Douglas dispute this version of events but, as we have observed, the learned Member’s conclusion was clearly open on the evidence and we can see no compelling reason to overturn it. In those circumstances, we do not consider that the variation falls foul of s 56 of the DBC Act.
The Driveway
[7] Area Square Pty Ltd v Hill Douglas [2010] QCAT 008 at paragraph 36.
The cost of the driveway was not included in the contract. Two variations issued which relate to that work. Variation 5, in the amount of $10,010, was for the cost of retaining walls. Variation 6, which recorded a “nil” balance, stated that Variation 5 was to be paid from an unspent tile supply PC allowance.
The learned Member found[8] that Mr and Mrs Hill-Douglas had not allowed Variation 5 to be paid from the unspent tile allowance. He did not accept their argument that invoice 46 takes up and adjusts those invoices because “this invoice makes no reference to Variations 6 or 7”. An examination of invoice 46 shows, however, that the learned Member was in error in this finding: the unspent tile allowance was deducted and Variations 5 and 7 were credited.
[8] Supra at paragraph 25.
That error does not, however, determine the issue[9]. Area Square argued, and the learned Member accepted, that because the Hill Douglas’s had not paid invoice 46 they had breached the agreement reached in Variation 6 and Area Square was not therefore bound by that agreement, and was entitled to claim payment for the construction of the driveway.
[9] See Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20.
Mr and Mrs Hill-Douglas say that they did not refuse to pay invoice 46 because, pursuant to the contract, they paid this amount into the Queensland Master Builders Trust Account in December 2007. They say, therefore, that they did not repudiate the agreement reached in Variation 6.
Clause 17.7 of the contract provides that the owner may pay any disputed amount into the Queensland Master Builders Trust Account. If, as is clear from the evidence, the amount was disputed, it was reasonable to conclude that Hill-Douglas’s had repudiated the agreement and did not intend to be bound by it. The finding is clearly open on the evidence and we can find no compelling reason to set it aside.
The Cornice
Mr and Mrs Hill-Douglas provided a detailed analysis of the evidence with a view to showing that a particular cornice was wrongly located. The learned Member accepted that the cornice was in the wrong place[10]. Mr and Mrs Hill-Douglas also provided detailed submissions as to why Area Square was responsible for the misplaced cornice. The learned Member determined that he did not need to decide whether the misplaced cornice was due to Area Square’s default because he accepted the evidence of a witness, Mr Thompson, that the defect did not sound in damages.
[10] Supra at paragraph 58.
The learned Member had the benefit of evidence from two real estate agents as to the impact the misplaced cornice may have on the value of the Hill-Douglas’s home. As he was entitled to do, the learned Member preferred the evidence of one of them (Mr Thompson) to the evidence of another, Mr Rowland. He carefully explained his reasons for doing so[11]. This Appellate tribunal’s ability to make a contrary finding in such circumstances is constrained[12] and is not attracted here.
[11] Supra at paragraphs 62 and 63.
[12] Suvaal v Cessnock City Council (2003) 200 ALR 1 at [76].
Mr and Mrs Hill-Douglas say that Area Square’s negligence should not go unaddressed and that they are entitled to compensation which, although not rectifying the fault, will “encourage a reasonable standard of workmanship by the builder and some recompense to the client.” They say that the failure to award damages for this defect “simply mandates poor workmanship”.
The tribunal can only award damages if it is satisfied that a party has suffered loss. The learned Member was not satisfied that any loss had been suffered. In this jurisdiction there is no room for punitive damages as suggested by the applicants.
Conclusion
Mr and Mrs Hill-Douglas have not been able to establish the necessary elements to persuade this Appeal Tribunal to grant leave to appeal. There may be, at the highest for them, an arguable case of error but they have not been able to establish a reasonable prospect that they will obtain substantive relief.
More importantly, they have not been able to establish that leave is necessary to correct a substantial injustice or that there is a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage. Leave to appeal should be refused.
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