Lemar Nominees Pty Ltd v Shuttlewood

[2000] QCA 205

[2000] QCA 205

COURT OF APPEAL

PINCUS JA
WHITE J
CHESTERMAN J

No 2715 of 2000

LEMAR NOMINEES PTY LTD              Appellant (Applicant)

and

RONALD DOUGLAS SHUTTLEWOOD        Respondent (Respondent)

and

AMANDA JANE SHUTTLEWOOD           Respondent (Respondent)

BRISBANE

..DATE 29/05/2000

JUDGMENT

PINCUS JA:  This is an application for leave to appeal from the decision of the District Court refusing leave to appeal to that Court from the decision of the Queensland Building Tribunal.

The Tribunal's decision concerned a damages claim relating to the construction of a house at Mackay and one issue which was determined by the Tribunal in favour of the claimants there, Mr and Mrs Shuttlewood, had to do with an alleged variation of the building contract so as to shift the location of the house by about one metre.

It is not absolutely clear to me on the reasons which the Tribunal gave that the Tribunal member rejected altogether the proposition that such a variation was agreed.  But the general tenor of the reasons given, particularly at page 3, was that there was not sufficient detail to constitute a variation in the true sense.  That is, I understand the Tribunal member took the view that to determine whether or not the house should be shifted by one metre, one would have to consider what consequential changes in the design of the house would be necessary if that were done, and that there was, it appears, no agreement on that issue, at least.

When the matter went to the District Court, the learned District Court Judge concerned himself with the question whether or not there was a variation complying with section 59 of the Queensland Building Services Authority Act 1991, that being the provision which affects the validity of a variation to a contract for carrying out major domestic building work unless it is in writing and signed by the parties. There has been discussion before us today as to whether or not the District Court Judge correctly applied the provisions of section 59 to a document entitled "Site instruction" dated 13 July 1998. We have a copy of that document, and it certainly contemplates moving the house one metre, but it does not contain any detail as to what consequential changes in the design would be necessary.

The argument which has been advanced by Mr Howe as to the District Court Judge's reasons are that the District Court Judge erred in a number of respects in dealing with the application of section 59 to the site instruction, that the site instruction was in fact a variation within the meaning of the statute and was correctly executed as the statute required. The difficulty, however, which emerged during the course of discussion with Mr Howe is that it is conceded, I think, that it is by no means clear that if these arguments succeeded, leave to appeal from the District Court having been given, that would in any way ultimately advantage the builder.

It seems clear enough from the reasons given by the member of the Tribunal that he rejected the builder's evidence and accepted that of the claimants in so far as there was any conflict.  It seems, looking at the matter rather broadly, quite unlikely that remitting the case to the Tribunal would achieve anything so far as the builder is concerned.  At the least it must be said that there is grave doubt whether allowing the appeal and remitting the matter would get the builder into any better position than that in which it was left by the decision of the Tribunal.

Another matter which has influenced me in approaching the application made by Mr Howe on behalf of the builder is that it does not appear that, if the Tribunal's conclusions are accepted, any unjust result was achieved; it is not a case in which the outcome of the dispute between the parties was determined on some technicality which has unjustly deprived the builder of his rights.  On the broad merits of the case, as expounded by the Tribunal, it seems plain enough that if the findings are correct the order made by the Tribunal is not an unjust one. 

Therefore, the application faces two difficulties. Assuming in its favour, without deciding, that there were errors made in the District Court, it is not at all clear that the establishment of those errors by allowing an appeal would achieve anything for the applicant. Secondly, it does not seem to be a case in which it is necessary to correct an evident injustice. But one must add to that, of course, that it does not seem at all plain that any significant question of law of general application is raised. One is simply concerned with the application of section 59 to a particular site instruction.

In the circumstances then, it appears to me that we should exercise our discretion against the application and I would, for myself, dismiss it with costs.

WHITE J:  I agree.

CHESTERMAN J:  I agree.

PINCUS JA:  The application is dismissed with costs.

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