M J Arthurs Pty Ltd v Heaysman - [2015] QCA 113

SUPREME COURT OF QUEENSLAND

CITATION:

M J Arthurs Pty Ltd v Heaysman & Anor [2015] QCA 113

PARTIES:

M J ARTHURS PTY LTD
ACN 145 344 056
(appellant)
v
PETER ROBERT HEAYSMAN
(first respondent)
LEONIE COLLEEN HEAYSMAN
(second respondent)

FILE NO/S:

Appeal No 7736 of 2014
DC No 3970 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane – [2014] QDC 160

DELIVERED ON:

23 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2015

JUDGES:

Margaret McMurdo P and Holmes JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is dismissed.

2.   The application to adduce fresh evidence is refused.

3.   The appellant is to pay the respondents’ costs of the appeal.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the appellant and respondents signed a building contract – where the trial judge found that the respondents had validly withdrawn from the contract under s 72 of the Domestic Building Contracts Act 2000 (Qld) – where the appellant argued that the withdrawal notice was not valid as it was not faxed to its last known facsimile number – where the respondents sent the notice to the facsimile number listed for the appellant in the schedule to the building contract – whether the last known facsimile number was that known to the respondents or was the last number objectively ascertainable – whether the withdrawal notice was validly served

Domestic Building Contracts Act 2000 (Qld), s 72, s 75(1)

Civic Video Pty Ltd v Warburton (2013) 216 FCR 61; [2013] FCA 934, distinguished
Drake v Stanton [1999] FCA 1635, cited

Robertson v Banham & Company [1997] 1 WLR 446; [1996] EWCA Civ 860, considered

COUNSEL:

L D Bowden for the appellant
G Handran for the respondents

SOLICITORS:

Quinn & Scattini Lawyers for the appellant
Stephens & Tozer Solicitors for the respondents

MARGARET McMURDO P: I agree with Holmes JA’s reasons for refusing the application to adduce further evidence and for dismissing the appeal with costs.
HOLMES JA: The appellant, M J Arthurs Pty Ltd, is a registered builder which unsuccessfully sued the respondents, Mr and Mrs Heaysman, under a building contract. The trial judge held that the Heaysmans had withdrawn from the contract under s 72 of the Domestic Building Contracts Act 2000 (which provides for a cooling off period) by means of a notice of withdrawal dated 26 September 2013, given by facsimile transmission. M J Arthurs Pty Ltd contends that the trial judge erred in finding the notice of withdrawal was validly given because, it says, the notice was not sent to its last known facsimile number (the form of service for which the building contract provided).
The Heaysmans say that this was not an argument made at first instance; if it had been, they would have put on evidence as to unsuccessful…

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: [2015] QCA 113
Decision Date: 23 June 2015

CaseChat Overview and Summary

In the case of M J Arthurs Pty Ltd v Heaysman, the appellant, M J Arthurs Pty Ltd, sought to appeal a decision regarding the validity of a withdrawal notice under section 72 of the Domestic Building Contracts Act 2000 (Qld). The respondents, Heaysman, had withdrawn from a building contract and argued that they had served a valid withdrawal notice. The appellant contested the validity of this notice, claiming it was not properly served as it was not faxed to their last known facsimile number. Instead, the respondents had sent the notice to the facsimile number listed for the appellant in the schedule to the building contract. The Queensland Court of Appeal was tasked with determining the correct interpretation of "last known facsimile number" and whether the notice was validly served.

The court examined the statutory provisions and the common law principles relevant to the interpretation of the term "last known facsimile number." It considered whether the relevant number was the one known to the respondents or the one that was objectively ascertainable. The court concluded that the term should be interpreted in light of the statute's purpose, which is to protect consumers in domestic building contracts. Given this, the court held that the respondents had validly served the notice by faxing it to the number listed in the building contract. This interpretation aligned with the statutory objective and provided a practical solution to the issue of identifying the correct facsimile number.

The appeal was dismissed, and the application to adduce fresh evidence was refused. The court further ordered that the appellant pay the respondents’ costs of the appeal. This decision underscores the importance of adhering to the statutory framework designed to protect consumers in domestic building contracts and highlights the consequences of failing to do so.

Orders

Orders of the court

1. The appeal is dismissed.

2. The application to adduce fresh evidence is refused.

3. The appellant is to pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	M J Arthurs Pty Ltd v Heaysman & Anor [2015] QCA 113
PARTIES:	M J ARTHURS PTY LTD ACN 145 344 056 (appellant) v PETER ROBERT HEAYSMAN (first respondent) LEONIE COLLEEN HEAYSMAN (second respondent)
FILE NO/S:	Appeal No 7736 of 2014 DC No 3970 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Miscellaneous Application – Civil
ORIGINATING COURT:	District Court at Brisbane – [2014] QDC 160
DELIVERED ON:	23 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2015
JUDGES:	Margaret McMurdo P and Holmes JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is dismissed. 2. The application to adduce fresh evidence is refused. 3. The appellant is to pay the respondents’ costs of the appeal.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the appellant and respondents signed a building contract – where the trial judge found that the respondents had validly withdrawn from the contract under s 72 of the Domestic Building Contracts Act 2000 (Qld) – where the appellant argued that the withdrawal notice was not valid as it was not faxed to its last known facsimile number – where the respondents sent the notice to the facsimile number listed for the appellant in the schedule to the building contract – whether the last known facsimile number was that known to the respondents or was the last number objectively ascertainable – whether the withdrawal notice was validly served Domestic Building Contracts Act 2000 (Qld), s 72, s 75(1) Civic Video Pty Ltd v Warburton (2013) 216 FCR 61; [2013] FCA 934, distinguished Drake v Stanton [1999] FCA 1635, cited Robertson v Banham & Company [1997] 1 WLR 446; [1996] EWCA Civ 860, considered
COUNSEL:	L D Bowden for the appellant G Handran for the respondents
SOLICITORS:	Quinn & Scattini Lawyers for the appellant Stephens & Tozer Solicitors for the respondents