APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – where builder in breach of contract – where Tribunal allowed further evidence to be filed after the hearing – whether owner permitted to produce fresh evidence – whether conduct amounted to repudiation – whether owner accepted repudiation or terminated contract – whether member erred in assessing cost of defective work – whether owner entitled to legal costs

Queensland Civil and Administrative Tribunal Act2009, ss 102, 142(3)(b)
Queensland Building Services Authority Act1991, ss 77(2)(g), 77(2)(h)

Cachia v Grech [2009] NSWCA 232, cited

Chambers v Jobling (1986) 7 NSWLR 1, cited

Fox v Percy (2003) 214 CLR 118, cited

Dearman v Dearman (1908) 7 CLR 549, cited

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, cited
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, cited

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited

Kerr v Paku & Anor [2011] QCATA 157, cited
Martin v Cahill [2008] QCCTB 37, cited

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

Robinson v Harman (1848) 1 Exch 850, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Justice Alan Wilson

In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

Mr and Mrs Mannix engaged Chris Neale Constructions Pty Ltd to build them a home. As often happens, Mr and Mrs Mannix did not pay the final payment and they have an extensive list of defects which, they say, means that the house will have to be demolished and rebuilt.

After a two-day hearing the learned QCAT Member who heard the matter found that Mr and Mrs Mannix should have paid the builder a final payment of $12,694.60. He also found that the builder was responsible for defects and costs totalling $36,711.74. He therefore ordered that the builder pay Mr and Mrs Mannix $24,017.14.

Mr and Mrs Mannix have sought leave to appeal the learned Member’s decision. Because their grounds for appeal involve questions of fact, or mixed fact and law, leave is necessary.[1]
[1] Queensland Civil…

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 Mannix v Chris Neale Constructions Pty Ltd

Details

AGLC: Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222
Case: [2011] QCATA 222
Decision Date: 22 August 2011

CaseChat Overview and Summary

Mannix was engaged by Chris Neale Constructions Pty Ltd to construct a house. Disputes arose, and the matter was heard by the Victorian Civil and Administrative Tribunal. Mannix sought leave to appeal against the decision, arguing that the Tribunal erred in allowing further evidence to be filed after the hearing, in assessing the cost of defective work, and in denying legal costs. The Tribunal had permitted the builder to present additional evidence after the original hearing, which Mannix contended was unfair. Mannix also argued that the Tribunal's assessment of the cost of the defective work was incorrect and that they were entitled to legal costs.

The court had to determine whether the Tribunal was correct in allowing the builder to file further evidence post-hearing. It also had to consider whether the builder's conduct amounted to a repudiation of the contract and whether Mannix accepted this repudiation or terminated the contract. Additionally, the court needed to assess whether the Tribunal erred in its evaluation of the cost of the defective work and whether Mannix was entitled to legal costs.

The court found that the Tribunal's decision to allow further evidence after the hearing was not an error. It concluded that the builder's conduct did not amount to a repudiation of the contract, and therefore, Mannix had not accepted the repudiation nor terminated the contract. The court also determined that the Tribunal's assessment of the cost of the defective work was not erroneous, and accordingly, Mannix was not entitled to legal costs. The appeal was dismissed.

The court ordered that Mannix pay Chris Neale Constructions Pty Ltd's costs of the appeal, including the costs of the hearing in the Tribunal. This decision reinforces the importance of adhering to procedural fairness in tribunal hearings and the consequences of failing to establish a repudiation of contract.

Orders