Horner v Unique Design Qld Pty Ltd - [2020] QCATA 182

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Horner v Unique Design Qld Pty Ltd [2020] QCATA 182

PARTIES: ROSALIE HORNER

(applicant/appellant)

v

UNIQUE DESIGN QLD PTY LTD

(respondent)

APPLICATION NO/S:

APL031-19

ORIGINATING APPLICATION NO/S:

BDL146-18

MATTER TYPE:

Appeals

DELIVERED ON:

26 February 2020

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Deane

ORDERS:
1.   Application for miscellaneous matters filed 11 June 2019 to rely upon fresh evidence is dismissed.

2.   Application for miscellaneous matters filed 1 August 2019 to rely upon fresh evidence is dismissed.

3.   Application for leave to appeal is refused.

4.   Appeal otherwise dismissed.

5.   Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to the other party, by 4:00pm on 6 March 2020.

6.   If an application for costs is made in accordance with order number 5:

(a)    the other party is to file in the Tribunal two (2) copies and give one (1) copy to the party making the application, any submissions and evidence in response, by 4:00pm on 27 March 2020; and

(b)   the application will be determined on the papers and without an oral hearing, unless a party requests an oral hearing, not before 4:00pm on 27 March 2020.

CATCHWORDS:
APPEAL AND NEW TRIAL - PROCEDURE – QUEENSLAND – where the applicant sought leave to appeal - where the applicant was ordered to pay a decision sum in the tribunal below – where the applicant seeks to rely upon fresh evidence – where the documents sought by the applicant were not before the tribunal below – where the applicant fails to provide any submissions in support – where the applicant re-agitates a previously decided matter – where no error found in the decision below – where leave to appeal not merited

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - where the parties entered into a building contract for renovation of a bathroom – where disputes arose as to terms of the contract – where no error found in the learned member’s construction of the contract – where leave to appeal not merited

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b)

Cachia v Grech [2009] NSWCA 232

Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Dutta v Guy Kits t/a Design Build Homes [2014] QCATA 280
Fox v Percy (2003) 214 CLR 118
Gemview Jewellery v Florian Stafleu [2011] QCATA 276
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Ryan v Worthington [2015] QCA 201

Unique Design Qld Pty Ltd v Horner

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.

Continue reading Horner v Unique Design Qld Pty Ltd

Details

AGLC: Horner v Unique Design Qld Pty Ltd [2020] QCATA 182
Case: [2020] QCATA 182
Decision Date: 26 February 2020

CaseChat Overview and Summary

The appeal before the Queensland Court of Appeal was brought by Horner against Unique Design Qld Pty Ltd. The primary dispute concerned the renovation of a bathroom under a building contract, which led to disagreements over the contract terms. The Court of Appeal was tasked with reviewing the tribunal's decision and Horner's subsequent application for leave to appeal, which included a request to rely on fresh evidence.

The legal issues encompassed whether the tribunal had erred in its construction of the contract and if the fresh evidence Horner sought could justify an appeal. Additionally, the court had to consider whether the application for leave to appeal was merited, given the lack of new submissions and the reiteration of previously decided matters.

In assessing these issues, the court found no error in the tribunal's interpretation of the contract and determined that Horner had not provided any new submissions or evidence to support the fresh evidence claim. The court further noted that Horner was merely re-arguing matters already decided. Consequently, the application for leave to appeal was dismissed, as was the application for miscellaneous matters seeking to rely on fresh evidence. The appeal was ultimately dismissed, with directives on the process for any subsequent cost applications.

The court's final orders included dismissing Horner's applications to rely on fresh evidence and to appeal, while also outlining the procedure for any future applications for costs, mandating that such applications be submitted in a specified manner and responded to accordingly.

Orders

Orders of the court

1. Application for miscellaneous matters filed 11 June 2019 to rely upon fresh evidence is dismissed.

2. Application for miscellaneous matters filed 1 August 2019 to rely upon fresh evidence is dismissed.

3. Application for leave to appeal is refused.

4. Appeal otherwise dismissed.

5. Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to the other party, by 4:00pm on 6 March 2020.

6. If an application for costs is made in accordance with order number 5:

(a) the other party is to file in the Tribunal two (2) copies and give one (1) copy to the party making the application, any submissions and evidence in response, by 4:00pm on 27 March 2020; and

(b) the application will be determined on the papers and without an oral hearing, unless a party requests an oral hearing, not before 4:00pm on 27 March 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Horner v Unique Design Qld Pty Ltd [2020] QCATA 182
PARTIES:	ROSALIE HORNER
(applicant/appellant)
v
UNIQUE DESIGN QLD PTY LTD
(respondent)
APPLICATION NO/S:	APL031-19
ORIGINATING APPLICATION NO/S:	BDL146-18
MATTER TYPE:	Appeals
DELIVERED ON:	26 February 2020
HEARING DATE:	On the Papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown Member Deane
ORDERS:	1. Application for miscellaneous matters filed 11 June 2019 to rely upon fresh evidence is dismissed. 2. Application for miscellaneous matters filed 1 August 2019 to rely upon fresh evidence is dismissed. 3. Application for leave to appeal is refused. 4. Appeal otherwise dismissed. 5. Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to the other party, by 4:00pm on 6 March 2020. 6. If an application for costs is made in accordance with order number 5: (a) the other party is to file in the Tribunal two (2) copies and give one (1) copy to the party making the application, any submissions and evidence in response, by 4:00pm on 27 March 2020; and (b) the application will be determined on the papers and without an oral hearing, unless a party requests an oral hearing, not before 4:00pm on 27 March 2020.
CATCHWORDS:	APPEAL AND NEW TRIAL - PROCEDURE – QUEENSLAND – where the applicant sought leave to appeal - where the applicant was ordered to pay a decision sum in the tribunal below – where the applicant seeks to rely upon fresh evidence – where the documents sought by the applicant were not before the tribunal below – where the applicant fails to provide any submissions in support – where the applicant re-agitates a previously decided matter – where no error found in the decision below – where leave to appeal not merited CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - where the parties entered into a building contract for renovation of a bathroom – where disputes arose as to terms of the contract – where no error found in the learned member’s construction of the contract – where leave to appeal not merited Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b) Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 Dutta v Guy Kits t/a Design Build Homes [2014] QCATA 280 Fox v Percy (2003) 214 CLR 118 Gemview Jewellery v Florian Stafleu [2011] QCATA 276 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Ryan v Worthington [2015] QCA 201 Unique Design Qld Pty Ltd v Horner