Lu v Emerson (No 2) - [2024] QCAT 494

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lu v Emerson (No 2) [2024] QCAT 494

PARTIES:

YI LU

(applicant)

v

LEIGH EMERSON

(respondent)

APPLICATION NO/S:

REO019-24

MATTER TYPE:

Building matters

DELIVERED ON:

4 November 2024

HEARING DATE:

On the papers

DECISION OF:

Member Taylor

ORDERS:

1. The application for reopening, correction, renewal or amendment filed 19 July 2024 is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – where a home owner contracted with a brick & block-laying trade contractor for the construction of hard-landscaping works - where there was no written contract between the parties – where under statute the contract was of no effect – where the owner claimed damages – where the decision in the first instance was that the owner could not pursue a claim for breach of contract in the absence of a contract that was of effect – where the owner sought to have the proceeding reopened asserting he had evidence of the formation of the contract not previously provided such that it showed the contract was of effect

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY - where a home owner contracted with a brick & block-laying trade contractor for the construction of hard-landscaping works - where there was no written contract between the parties – where under statute the contract was of no effect – where the owner claimed damages – where the proceeding at first instance was determined on the papers - where the decision in the first instance was that the owner could not pursue a claim for breach of contract in the absence of a contract that was of effect – where the owner sought to have the proceeding reopened asserting he had evidence of the formation of the contract not previously provided such that it showed the contract was of effect – whether the owner was prejudiced by way of the proceeding being determined on the papers – whether the owner had new evidence – whether the owner would suffer a substantial injustice - where the owner had fundamentally misunderstood the reasons for decision in the first instance

Electronic Transactions (Queensland) Act 2001 (Qld), s 14

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B s 14

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32, s 138

Chandra v Queensland Building and Construction Commission [2014] QCA 335

King Developments Pty Ltd v Mayne [2015] QCATA 29
Lu v Emerson [2024] QCAT 249

R (West) v Parole Board [2005] 1 WLR 350

APPEARANCES & REPRESENTATION:

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

On 14 June 2024 I gave my decision and reasons therefore in terms of the applicant’s Application for a Domestic Building Dispute…

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 Lu v Emerson (No 2)

Details

AGLC: Lu v Emerson (No 2) [2024] QCAT 494
Case: [2024] QCAT 494
Decision Date: 4 November 2024

CaseChat Overview and Summary

In Lu v Emerson (No 2), the applicant, Mr Lu, sought to reopen a proceeding against the respondent, Mr Emerson, who is a brick and block-laying trade contractor. The dispute originated from a contract for hard-landscaping works for which there was no written agreement between the parties. The original decision held that Mr Lu could not pursue a claim for breach of contract due to the absence of a legally binding contract, as mandated by statute. Mr Lu then sought to reopen the proceeding, asserting he had new evidence in the form of SMS messages that demonstrated the existence of a contract.

The legal issues before the court included whether Mr Lu had a reasonable excuse for not appearing at the original hearing and whether he would suffer substantial injustice if the proceeding was not reopened due to the emergence of significant new evidence. The court had to consider whether the new evidence provided by Mr Lu was available at the time of the original hearing and if the reopening of the case would result in a substantial injustice to the respondent.

The court found that Mr Lu had not demonstrated a reasonable excuse for not appearing at the original hearing as no hearing actually took place. Moreover, the court determined that Mr Lu's assertion of new evidence did not meet the criteria for reopening under section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The court held that the evidence was not new or significant enough to warrant a reopening of the case, as Mr Lu had fundamentally misunderstood the reasons for the original decision. The court also noted that Mr Lu had not demonstrated that he would suffer a substantial injustice if the proceeding was not reopened.

In conclusion, the court dismissed Mr Lu's application for reopening, affirming the original decision that he could not pursue a claim for breach of contract due to the absence of a legally binding contract.

Orders

Orders of the court

1. The application for reopening, correction, renewal or amendment filed 19 July 2024 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 14 June 2024 I gave my decision and reasons therefore in terms of the applicant’s Application for a Domestic Building Dispute filed 22 December 2021. [1] (the Original Decision) [1]See Lu v Emerson [2024] QCAT 249. On 19 July 2024, the applicant filed an Application for Reopening of that proceeding wherein he asserted:(a)he did not appear at the hearing and had a reasonable excuse for not doing so, because no hearing took place; and(b)he would suffer a substantial injustice of the proceeding was not reopened because significant new evidence has arisen that was not reasonably available when the proceeding was first heard and decided. In support of those assertions, in his application and his submissions which followed it in satisfaction of directions I gave for same,[2] he states:(a)The scheduled hearings were cancelled, the first without explanation, the second as a result of the responded not appearing / attending; and(b)The asserted ‘new’ evidence is a copy of SMS messages that is said to show that a contract existed between the parties, and in the absence of a hearing he was “unable to fully discuss and clarify the contractual details”.[2]Those are the directions issued 28 August 2024. As to the asserted substantial injustice, he submits:Upon QCAT’s request for supporting documents, we submitted a document from the builder that he told us was used as a contract. However, QCAT determined it did not establish the essential elements of a contract and based their decision on this finding. Whilst we appreciate the Tribunal’s examination of the case, we believe this new evidence demonstrates the existence of an effective contract that warrants further consideration. If a hearing had been conducted, we should have demonstrated this. Our objective is only to ensure the contracted work is completed, including addressing the damages inflicted on our property by the builder and recovering the additional expenses incurred in hiring a replacement contractor. The respondent did not file any material or otherwise contact the Tribunal in response to the application for reopening. Under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), a party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party. A ‘reopening ground’ means:[3](a)the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or(b)the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[3]QCAT Act - Schedule 3. Under s 28 of the QCAT Act, the procedure for a proceeding is at the discretion of the Tribunal, subject to that Act, an enabling Act, and the rules. However in all proceedings the Tribunal must act fairly and according to the substantial merits of the case, and in conducting a proceeding, the Tribunal must, inter-alia:(a)observe the rules of natural justice; (b)act with as little formality and technicality and with as much speed as the requirements of the Act, an enabling Act, or the rules, and a proper consideration of the matters before the Tribunal permit; and(c)ensure, as far as practicable, that all relevant material is disclosed to the Tribunal to decide the proceeding with all the relevant facts.

Ratio Decidendi

Legal Principle Established

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