Karam v Chau's & Son Pty Ltd - [2020] QCATA 139

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Karam v Chau’s & Son Pty Ltd [2020] QCATA 139

PARTIES: ANTHONY KARAM

(applicant/appellant)

v

CHAU’S & SON PTY LTD ABN 59107089752 T/AS HOLIDAY AIR CONDITIONING AND REFRIGERATION ENGINEERING QLD

(respondent)

APPLICATION NO/S:

APL169-20

ORIGINATING APPLICATION NO/S:

0060618/18

MATTER TYPE:

Appeals

DELIVERED ON:

11 September 2020

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:
1. The application to stay a decision dated 23 April 2020 in MCDO60618/20 (Brisbane) is granted pending determination of APL169-20.

CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS- GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where no leave to appeal yet granted – grounds for granting a stay – jurisdictional issues raised by Adjudicator ordering payment of money where claim is a building dispute seeking debt or liquidated demand – no compliance with s 77(2) Queensland Building and ConstructionCommission Act 1991 (Qld) – whether substantive or procedural requirement – observations as to whether s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is available

Acts Interpretation Act 1954 (Qld), s 20(2)

Domestic Building Contracts Act 2000 (Qld), repealed,
s 7, s 8, Schedule 2
Queensland Building and Construction Commission Act 1991 (Qld), s 77(2), Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61

Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Day v Humphrey [2017] QCA 104
Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49
Hamilton v Merck and Co Inc [2006] NSWCA 55
Hessey-Tenny & Anor v Jones [2018] QCATA 131
LKB Holdings Pty Ltd v Gacayn [2019] QCATA 13
Maxwell v Murphy [1957] 96 CLR 261
Redding v Simmons [2016] QCATA 100
Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70

Von Fahland v Virk [2019] QCATA 178

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

The applicant, Mr Karam, seeks a stay of a decision made in a minor civil dispute – minor debt proceeding, on 23 April 2020, that the applicant pay to the respondent the sum of $8,846.60, being the balance owing for a contract to supply and install air conditioning.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58 and s 145.
An application for leave to appeal or appeal was filed in the Tribunal on 19 June 2020.
The applicant has filed submissions in support of his application for a stay. The applicant submits that he has a complete defence to the original claim in that the installation of the air-conditioning system was defective; that he had a counterclaim for rectification arising out of the same set of facts and that he was not given a chance to put his case. The applicant says that material in relation to the defective work had previously been filed.

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: [2020] QCATA 139
Decision Date: 11 September 2020

CaseChat Overview and Summary

The appeal before the court involved Karam as the appellant and Chau's & Son Pty Ltd as the respondent. The nature of the dispute was the appellant's application to stay a decision made by an adjudicator, which had ordered the respondent to pay a sum of money in relation to a building dispute. The Queensland Civil and Administrative Tribunal (QCAT) was the court that heard the appeal.

The primary legal issue before the court was whether the appellant's application to stay the adjudicator's decision should be granted. The court considered whether the grounds for granting a stay were met, specifically whether the adjudicator's decision raised jurisdictional issues. The appellant argued that the adjudicator had ordered payment of money where the claim was a building dispute seeking a debt or liquidated demand, and that the adjudicator had not complied with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld). The court also considered whether section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) was available to the appellant.

The court found that the grounds for granting a stay were met, as the adjudicator's decision raised jurisdictional issues. The court held that the adjudicator had not complied with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld), which required the adjudicator to give reasons for their decision. The court also found that section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) was available to the appellant, as it provided for the stay of proceedings pending the determination of an appeal. The court therefore granted the appellant's application to stay the adjudicator's decision.

The court made an order granting the appellant's application to stay the decision dated 23 April 2020 in MCDO60618/20 (Brisbane) pending the determination of APL169-20. The court also ordered that the respondent pay the appellant's costs of the appeal, to be paid within 14 days.

Orders

Orders of the court

1. The application to stay a decision dated 23 April 2020 in MCDO60618/20 (Brisbane) is granted pending determination of APL169-20.

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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