Holliday v Franklin (Qld) Pty Ltd - [2017] QCATA 8

CITATION:	Holliday v Franklin (QLD) Pty Ltd [2017] QCATA 8
PARTIES:	Fiona Holliday David Holliday (Applicants/Appellants)
v
Franklin (QLD) Pty Ltd (Respondent)
APPLICATION NUMBER:	APL280-15
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Stilgoe OAM Member Howard
DELIVERED ON:	23 January 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The appeal is allowed. 2. (i) Paragraph 1 of the order of the Tribunal about dated 16 June 2015 is confirmed; (ii) Within 7 days of Franklin (QLD) Pty Ltd receiving from Fiona Holliday and David Holliday the full amount awarded by the Tribunal in its orders of 16 June 2015 of $18,448.83 Franklin (QLD) Pty Ltd shall instruct the certifier to perform the final inspection and Fiona and David Holliday shall not unreasonably refuse access to the certifier to undertake such inspections as are necessary; (iii) Franklin (QLD) Pty Ltd must give the final certificate to Fiona Holliday and David Holliday within 7 days of receiving it from the certifier. 3. Paragraph 2 of the decision dated 16 June 2015, dismissing the cross-application of Fiona Holliday and David Holliday about the pool is set aside and returned to the Tribunal differently constituted for consideration with the following directions: (i) Fiona Holliday and David Holliday must file in the Tribunal and serve on Franklin (QLD) Pty Ltd, all further evidence, including expert evidence, upon which they wish to rely at the further hearing of their cross-application in BDL093-14 by 4pm on 28 February 2017; (ii) Franklin (QLD) Pty Ltd must file in the Tribunal and serve on Fiona Holliday and David Holliday all further evidence, including expert evidence, upon which they wish to rely at the further hearing of the cross-application in BDL093-14 by 4pm on 31 March 2017; (iii) The proceeding is listed for a directions hearing in Brisbane on a date to be fixed not before 14 April 2017; (iv) The proceeding is listed for further hearing in Mackay on a date to be fixed by the Tribunal; (v) The Tribunal may make such further or other directions as it sees fit from time to time.
CATCHWORDS:	APPEAL – where party failed to attend scheduled hearing – where decision reserved – where party attended at Tribunal later the same day – where directions hearing subsequently held with parties to discuss further hearing – where cross-application dismissed without hearing on the merits – whether error of law – whether procedural fairness observed APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – construction of clause relating to no adjustment in contract price for different dimensions – whether tribunal erred in construction of clause – whether error of law APPEAL – LEAVE TO APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – CERTIFICATES – whether the principal or the builder should pay for the final certificate – whether an order needed to be made for issue of the final certificate APPEAL – LEAVE TO APPEAL – CONTRACTS – BUILDING,…

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: [2017] QCATA 8
Decision Date: 23 January 2017

CaseChat Overview and Summary

In Holliday v Franklin (Qld) Pty Ltd, the dispute arose between Fiona and David Holliday, the homeowners, and Franklin (Qld) Pty Ltd, the builders, concerning the construction of a house and the subsequent claims for additional payments and variations. The Queensland Civil and Administrative Tribunal (QCAT) made several orders, including that Franklin (Qld) Pty Ltd pay the Hollidays $18,448.83 and provide a final certificate within seven days of receiving it from the certifier. The Hollidays' cross-application regarding the pool was dismissed without a hearing on the merits. The Hollidays appealed against the dismissal of their cross-application and the tribunal's construction of a contract clause.

The primary legal issues in this appeal involved whether the tribunal erred in dismissing the Hollidays' cross-application without a hearing, whether there was an error of law in the tribunal's construction of the contract clause, and whether the tribunal correctly approved the variation without compliance with the contract or the Domestic Building Contracts Act. The appeal also questioned whether the tribunal had procedural fairness and whether the tribunal should have made an order for the issue of the final certificate.

The appeal court found that the tribunal had indeed erred in dismissing the Hollidays' cross-application without a hearing, violating their right to procedural fairness. The court also held that the tribunal had erred in its construction of the contract clause regarding the no adjustment in contract price for different dimensions. Additionally, the tribunal's approval of the variation was found to be incorrect as it did not comply with the contract or the Act. The court concluded that an order needed to be made for the issue of the final certificate.

The appeal was allowed, and the tribunal's orders were varied. Paragraph 1 of the tribunal's order dated 16 June 2015 was confirmed, and the Hollidays were to receive the full amount awarded by the tribunal. Paragraph 2 of the decision, dismissing the Hollidays' cross-application about the pool, was set aside and returned to the tribunal for reconsideration with specific directions for further evidence and a further hearing. The tribunal was also directed to issue the final certificate to the Hollidays within seven days of receiving it from the certifier.

Orders

Orders of the court

1. The appeal is allowed.

2. (i) Paragraph 1 of the order of the Tribunal about dated 16 June 2015 is confirmed;

(ii) Within 7 days of Franklin (QLD) Pty Ltd receiving from Fiona Holliday and David Holliday the full amount awarded by the Tribunal in its orders of 16 June 2015 of $18,448.83 Franklin (QLD) Pty Ltd shall instruct the certifier to perform the final inspection and Fiona and David Holliday shall not unreasonably refuse access to the certifier to undertake such inspections as are necessary;

(iii) Franklin (QLD) Pty Ltd must give the final certificate to Fiona Holliday and David Holliday within 7 days of receiving it from the certifier.

3. Paragraph 2 of the decision dated 16 June 2015, dismissing the cross-application of Fiona Holliday and David Holliday about the pool is set aside and returned to the Tribunal differently constituted for consideration with the following directions:

(i) Fiona Holliday and David Holliday must file in the Tribunal and serve on Franklin (QLD) Pty Ltd, all further evidence, including expert evidence, upon which they wish to rely at the further hearing of their cross-application in BDL093-14 by 4pm on 28 February 2017;

(ii) Franklin (QLD) Pty Ltd must file in the Tribunal and serve on Fiona Holliday and David Holliday all further evidence, including expert evidence, upon which they wish to rely at the further hearing of the cross-application in BDL093-14 by 4pm on 31 March 2017;

(iii) The proceeding is listed for a directions hearing in Brisbane on a date to be fixed not before 14 April 2017;

(iv) The proceeding is listed for further hearing in Mackay on a date to be fixed by the Tribunal;

(v) The Tribunal may make such further or other directions as it sees fit from time to time.

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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