Mackenzie v Leroy Palmer Consulting Engineers Pty Ltd - [2025] QCATA 10

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mackenzie v Leroy Palmer Consulting Engineers Pty Ltd & Anor [2025] QCATA 10

PARTIES:

ROBINA JANE ROSS MACKENZIE

(applicant/appellant)

v

LEROY PALMER CONSULTING ENGINEERS PTY LTD

(First respondent)

ROD GRIEVE RENOVATIONS PTY LTD

(Second respondent)

APPLICATION NO/S:

APL332-23

ORIGINATING APPLICATION NO/S:

BDL167-21

MATTER TYPE:

Appeals

DELIVERED ON:

12 February 2025

HEARING DATE:

30 January 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1.     The application to rely on fresh evidence is refused.

2.     Leave to appeal is refused.

3.     The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant applied for leave to appeal – where applicant applied for leave to rely on fresh evidence – whether evidence reasonably available at first instance – whether error of fact or mixed law and fact – where new matter raised on appeal – whether point is one of law or of mixed fact and law – whether in the interests of justice to consider the point – whether matter should be remitted to original decision-maker for reconsideration

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147

Allen v Queensland Building and Construction Commission [2023] QCATA 66

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404
Crime and Corruption Commission v Lee [2019] QCATA 38
Campbell v Queensland Building and Construction Commission [2021] QCATA 34

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 9 August 2023 a decision was made ordering that Ms Mackenzie’s claims against the respondents for breach of contract and in negligence be dismissed and for her to pay $1,942 to Leroy Palmer Consulting Engineers Pty Ltd and $7,590 to Rod Grieve Renovations Pty Ltd. Oral reasons were given for the decision.
On 9 October 2023 the applicant filed an application for leave to appeal seeking to overturn that decision. On 24 November 2023 the applicant filed an application for leave to rely on fresh evidence. An application to stay the original decision was refused on 31 October 2023.
On 7 February 2024 the Appeal Tribunal directed that the application for leave to appeal and the application for fresh evidence were to be heard and determined together.
Ms Mackenzie states she appeals the original decision on questions of mixed law and fact. An appeal on a question of fact or on mixed law and fact may only be made with the leave of the Appeal Tribunal.[1] Ms Mackenzie has not made any submissions addressing the issue of leave.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(b).
As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an…

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.

Keep reading for free

Create a free CaseChat account to read Mackenzie v Leroy Palmer Consulting Engineers Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] QCATA 10
Decision Date: 12 February 2025

CaseChat Overview and Summary

The case of Mackenzie v Leroy Palmer Consulting Engineers Pty Ltd involved Ms Mackenzie, the appellant, and Leroy Palmer Consulting Engineers Pty Ltd, the respondent. Ms Mackenzie sought to appeal against the decision of the Queensland Civil and Administrative Tribunal (QCAT) which had dismissed her claims against the respondents, Leroy Palmer Consulting Engineers and Bohm Industries, and ordered her to pay the respondents their claimed amounts. The appeal concerned the right to rely on fresh evidence, specifically a desktop analysis by Brad Rimmelzwaan, Principal Engineer, eCoast Engineering, and the general right to appeal.

The legal issues that the court had to decide included whether the fresh evidence was reasonably available at the first instance, whether the point raised on appeal was one of fact or mixed law and fact, and whether it was in the interests of justice to consider the point. Additionally, the court had to determine whether the matter should be remitted to the original decision-maker for reconsideration. The central question was whether the fresh evidence could be considered and if the appeal was warranted.

The court found that the fresh evidence was not reasonably available at the first instance and that the point raised on appeal was one of mixed fact and law. The court determined that it was not in the interests of justice to consider the fresh evidence and that the appeal was not warranted. The court held that the Member's findings were not shown to be wrong and that there was no basis for allowing the appeal. Consequently, the application to rely on fresh evidence and the application for leave to appeal were both refused, and the appeal was dismissed.

In conclusion, the court upheld the QCAT decision, finding that Ms Mackenzie's application for leave to appeal and to rely on fresh evidence was unsuccessful. The court dismissed the appeal and ordered that the appeal be dismissed without any further recourse to fresh evidence or a new trial.

Orders

Orders of the court

1. The application to rely on fresh evidence is refused.

2. Leave to appeal is refused.

3. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The learned Member found in favour of the respondents, dismissing Ms Mackenzie’s claims and ordering she pay the respondents the claimed amounts. In arriving at that decision the learned Member found:(i) There was insufficient evidence that the agreement between Ms Mackenzie and either the first respondent or the second respondent contained a term that the bracing to be installed was to match the existing bracing.(ii) The building works performed by the second respondent were to comply with an implied term that the works complied with legal requirements and were not defective.(iii) The evidence from the QBCC was that the work performed by the second respondent was not defective.(iv) Given that Ms Mackenzie had the onus of proof and that there was no evidence there had been a breach of contract or any negligence by the second respondent, Ms Mackenzie’s claim against the second respondent must fail.(v) Any claim that Ms Mackenzie was somehow “corralled” into entering the contract with the second respondent or that the contract was otherwise unenforceable had not been made out.(vi) The second respondent was contracted to provide an assessment of issues affecting the structural integrity of the dwelling which were relevant to the movement issues being experienced by Ms Mackenzie at the dwelling.(vii) There was insufficient evidence to demonstrate that issues such as wind factors, soil types and, for example, the absence of tie-downs to a roof, were matters an engineer should inspect in the context of a brief to report on movement issues at a dwelling or that it would be reasonable for an engineer to do so.(viii) There was no expert evidence from an engineer or other evidence sufficient to show any negligence on the part of the first respondent, including that showed the report provided was deficient.(ix) In relation to the placement of sand around the piers, the document from Osbourne Lane Consulting Engineers did not establish that the use of sand was not appropriate for the stumped premises in question and, in circumstances where the author of the document was not available for cross-examination and the first respondent’s evidence was that the use of sand was appropriate, Ms Mackenzie’s onus has not been satisfied.(x) There was insufficient evidence to establish a breach of contract or a breach of duty of care by the first respondent had occurred.(xi) Further, even if a breach had been established, there was insufficient evidence to show that the cost of restumping (as provided by Bohm Industries) was in any way linked to any failure of either respondent, for example, that any work performed or recommended by either of them had caused or exacerbated issues at the dwelling.Application for leave to rely on fresh evidence Ms Mackenzie made an application to rely on fresh evidence on 24 November 2023. The application sought to rely on: (a)a desktop analysis by Brad Rimmelzwaan, Principal Engineer, eCoast Engineering dated 19 September 2023.

Decision

Reasons for decision

Accompanying Ms Mackenzie’s application for leave to appeal is a document headed “Response to Reasons for Decision for QCAT Case No BDL167-21”. The document is over 80 pages in length, not including attachments. The document is set out by reference to broad headings which are not formulated as grounds of appeal. Decision of the Member Ms Mackenzie is the owner of a property in Killarney which had been moved from the front of her property towards the back. In 2020, due to the movement she had been experiencing at her dwelling, she engaged the first respondent consultant engineers to provide a report about the issues affecting the structural integrity of the dwelling and any rectification work required to address those issues. The first respondent recommended tightening loose subfloor rod braces, adding extra subfloor rod braces, and filling soil cracks with sand to reduce voids. The second respondent was engaged to do the rectification work. The parties were self-represented and, understandably, were unable to formulate their cases with strict or obvious adherence to legal principle. The Member said that, effectively, Ms Mackenzie was seeking damages, payment for rectification work and relief from payment of outstanding moneys to the first and second respondent. The first respondent counter claimed for the outstanding amount of $1,584 and the second respondent counter claimed for the outstanding amount of $7,590. The learned Member found in favour of the respondents, dismissing Ms Mackenzie’s claims and ordering she pay the respondents the claimed amounts. In arriving at that decision the learned Member found:(i) There was insufficient evidence that the agreement between Ms Mackenzie and either the first respondent or the second respondent contained a term that the bracing to be installed was to match the existing bracing.(ii) The building works performed by the second respondent were to comply with an implied term that the works complied with legal requirements and were not defective.(iii) The evidence from the QBCC was that the work performed by the second respondent was not defective.(iv) Given that Ms Mackenzie had the onus of proof and that there was no evidence there had been a breach of contract or any negligence by the second respondent, Ms Mackenzie’s claim against the second respondent must fail.(v) Any claim that Ms Mackenzie was somehow “corralled” into entering the contract with the second respondent or that the contract was otherwise unenforceable had not been made out.(vi) The second respondent was contracted to provide an assessment of issues affecting the structural integrity of the dwelling which were relevant to the movement issues being experienced by Ms Mackenzie at the dwelling.(vii) There was insufficient evidence to demonstrate that issues such as wind factors, soil types and, for example, the absence of tie-downs to a roof, were matters an engineer should inspect in the context of a brief to report on movement issues at a dwelling or that it would be reasonable for an engineer to do so.(viii) There was no expert evidence from an engineer or other evidence sufficient to show any negligence on the part of the first respondent, including that showed the report provided was deficient.(ix) In relation to the placement of sand around the piers, the document from Osbourne Lane Consulting Engineers did not establish that the use of sand was not appropriate for the stumped premises in question and, in circumstances where the author of the document was not available for cross-examination and the first respondent’s evidence was that the use of sand was appropriate, Ms Mackenzie’s onus has not been satisfied.(x) There was insufficient evidence to establish a breach of contract or a breach of duty of care by the first respondent had occurred.(xi) Further, even if a breach had been established, there was insufficient evidence to show that the cost of restumping (as provided by Bohm Industries) was in any way linked to any failure of either respondent, for example, that any work performed or recommended by either of them had caused or exacerbated issues at the dwelling.Application for leave to rely on fresh evidence

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.