| CITATION: | Mair Renovations v Miller [2016] QCATA 79 |
| PARTIES: | Jeffrey Mair t/as Mair Renovations Pamela Mair t/as Mair Renovations (Appellant) |
| V | |
| Duncan Thomas Miller Genevieve Kay Miller (Respondent) |
| APPLICATION NUMBER: | APL384-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 15 April 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Hughes |
| DELIVERED ON: | 20 May 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused; and 2. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – whether grounds for leave to appeal established – whether Member erred in not allowing claim for upstairs flooring – whether Member erred in having recourse to ‘order of precedence’ – where documents cannot be read together as a whole – whether Member correctly applied ‘order of precedence’ – where schedule 3 did not contain terms of contract but provided description of documents as aid to interpretation only - whether contract price increased for upstairs flooring – where findings open on evidence - where reasons adequate - whether Member erred in not approving upstairs flooring as variation beyond $8,087.00 – where no evidence to support amount claimed – where finding to not allow amount claimed open on evidence - whether Member erred in not finding indemnity in favour of builder for non-inclusion of upstairs flooring – where open on evidence to find that indemnity did not operate in circumstances of builder’s own failure to comply with statutory and contractual obligations – where indemnity clause cannot operate to confer greater entitlement than allowed under Act of $8,087.00 – where no substantial injustice even if indemnity clause had not been properly applied - whether Member erred in not awarding interest – where variations approved on statutory basis - where Tribunal does not have wide statutory discretion to award interest – where variations arise from statutory right of restitution – where each party must pay contractual interest on any money it ‘owes the other party’ - where ‘Balance contract sum’ not money ‘owed’ under contract – where ‘contract amount’ is adjusted for variations, retentions and defects to calculate amount ‘owed’ – where Member did not err in awarding interest as she did –– where no grounds to grant leave to appeal as no error by Member causing substantial injustice or question of public importance Civil Proceedings Act 2011 (Qld) ss 5, 58, 59 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
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- Mair Renovations v Miller [2016] QCATA 79
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- [2016] QCATA 79
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CaseChat Overview and Summary
The court considered whether the Member had erred in law or made findings that were open on the evidence. The court found that the Member’s reasons were adequate and that the findings were open on the evidence. The court also found that the Member correctly applied the ‘order of precedence’ for interpreting the contract documents, and that the indemnity clause could not operate to confer greater entitlement than allowed under the Act. The court further found that there was no substantial injustice even if the indemnity clause had not been properly applied. The court also found that the Member did not err in not awarding interest because the variations arose from a statutory right of restitution, and each party must pay contractual interest on any money it ‘owes the other party’. The court concluded that there were no grounds to grant leave to appeal as no error by the Member caused substantial injustice or raised a question of public importance.
The appeal was dismissed, and leave to appeal was refused. The decision of the Member was affirmed, and the builder was not entitled to recover the additional costs for the upstairs flooring, an indemnity for the non-inclusion of the upstairs flooring, or interest on the variations. The builder was only entitled to the maximum statutory amount of $8,087.00 for the variations.
Orders
Orders of the court
1. Leave to appeal is refused; and
2. The appeal is dismissed.
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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