Links v McMahon - [2016] QCATA 159

CITATION:

Links & anor v McMahon [2016] QCATA 159

PARTIES:	Jon Robert Links Katherine Emma Nuttall (Applicants/Appellants)
v
Philip John McMahon (Respondent)

APPLICATION NUMBER:

APL128 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

25 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – PROCEDURAL FAIRNESS – OPPORTUNITY TO PRESENT CASE – where tribunal determined that minor debt should be heard as a building dispute – whether applicants heard on the issue – where tribunal later dismissed building dispute for lack of jurisdiction - whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s32, s 48, s 62, s 95, s 116, s 122(3), s 230
Queensland Building and Construction Commission Act 1991 (Qld) s 77(2)
Public Records Act 2002 (Qld) s 7
Recording of Evidence Act 1962 (Qld) s 4, s 4A, s 5
Practice Direction 4 of 2011

Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Hassard v McInnes [2016] QCATA 21
Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

In July 2014, Jon Links and Katherine Nuttall (the homeowners) engaged Philip McMahon to do some building work. On 31 October 2014, the homeowners terminated the contract, before all the work had been completed. They engaged new builders to finish the work.
When the work was finished, the homeowners had a meeting with their architect, the new builders and Mr McMahon. Following this meeting, the parties exchanged correspondence which, in the homeowners’ view, amounted to Mr McMahon’s agreement that he would reimburse them for the cost of the new builder.
Despite demand, Mr McMahon did not reimburse the homeowners, so they filed an application for minor debt. Eventually, the claim was listed for mediation in the tribunal. Mr McMahon did not attend mediation, so the claim was referred to an Adjudicator for further action. On 4 February 2016, the Adjudicator determined that the dispute was likely to be a building dispute, not a minor debt claim, so the claim was transferred to the building list.
On 23 March 2016, in the building list, the homeowners’ claim was dismissed.
The homeowners wants to appeal the Adjudicator’s decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294

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 Links v McMahon

Details

AGLC: Links v McMahon [2016] QCATA 159
Case: [2016] QCATA 159
Decision Date: 25 October 2016

CaseChat Overview and Summary

The case of Links v McMahon involved the applicants, Links, appealing against a decision of the Building and Construction Commission, which was the respondent in the matter. The applicants contested the tribunal's determination that a minor debt should be considered as a building dispute and sought to argue their case on this issue. However, the tribunal later dismissed the building dispute due to a lack of jurisdiction, and the applicants sought leave to appeal on the basis that they had not been given the opportunity to present their case on the minor debt issue. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicants had been denied procedural fairness by not being given an opportunity to present their case on the minor debt issue. The court was required to determine whether the applicants' right to be heard was violated, given that the tribunal dismissed the building dispute for lack of jurisdiction before they could argue their case on the minor debt. The court had to examine the nature of the tribunal's error and whether it had a significant impact on the outcome of the proceedings.

In assessing the applicants' grounds for appeal, the court considered the principles of procedural fairness and the impact of the tribunal's error on the outcome of the proceedings. The court held that the applicants had not been denied a fair opportunity to present their case on the minor debt issue, as the tribunal had dismissed the building dispute for lack of jurisdiction, not because of any failure on the part of the applicants. The court found that the tribunal's error did not materially affect the outcome of the proceedings, as the applicants had not demonstrated that they would have succeeded in arguing their case on the minor debt issue. Consequently, the court refused the applicants' application for leave to appeal.

The court's decision was based on the assessment that the applicants had not been deprived of a fair opportunity to present their case, and the tribunal's error did not materially affect the outcome of the proceedings. The court held that the applicants had not demonstrated that they would have succeeded in arguing their case on the minor debt issue, and therefore, the tribunal's dismissal of the building dispute for lack of jurisdiction was not a significant error. As a result, the applicants' application for leave to appeal was refused, and no further appeal was permitted.

Orders

Orders of the court

1. Leave to appeal refused.

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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