Marsh v Walter Iezzi Property Group

Elaine Janet Marsh applied to the Queensland Civil and Administrative Tribunal (QCAT) for an order requiring Walter Iezzi Property Group to rectify work on her former property that she claims was damaged by Walter during works on a neighbouring property. The Tribunal considered the matter on the papers, and dismissed the application. The key issue for the Tribunal was whether Ms Marsh had provided sufficient evidence to establish a legally binding agreement or deed requiring Walter to perform the work on her property, and whether she had provided sufficient evidence of defective work, breach of duty, causation and loss. Ms Marsh had attached emails to her application which she claimed constituted an agreement, but the Tribunal found that there was no evidence of consideration for this alleged agreement, and therefore it was not legally enforceable. The Tribunal also found that Ms Marsh had not provided sufficient evidence to establish a breach of duty of care, causation and loss. The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate, but it must also act fairly and according to principles of natural justice with as little formality and as much speed as matters permit. Ms Marsh must establish her case against Walter, and she must prove her claim to the reasonable satisfaction of the Tribunal. In the absence of sufficient evidence to prove a legally binding agreement or deed, breach of duty, causation and loss, the Tribunal was not satisfied that Ms Marsh had established her claim to the requisite standard of proof. The application was dismissed.

The Tribunal noted that the onus is always on the applicant to present their case, and in the face of poorly prepared material, the Tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The Tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case. The Tribunal also noted that QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. The Tribunal considered that it would not be fair to order Walter to rectify work without sufficient evidence of the elements required to establish Ms Marsh’s case. The application was dismissed with no orders for costs.