Mascord v i8LM Pty Ltd - [2020] QCATA 121

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mascord & Anor v i8LM Pty Ltd [2020] QCATA 121

PARTIES:
TERRI MASCORD

BERNIE MASCORD

(appellants)

v

I8LM PTY LTD

(respondent)

APPLICATION NO/S:

APL337-19

ORIGINATING APPLICATION NO/S:

MCDO 61234/18 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

21 August 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:
1.   Leave to appeal is granted.

2.   The appeal is allowed.

3.   The decision made on 18 March 2019 in MCDO 61234/18 (Brisbane) is set aside.

4.   MCDO 61234/18 (Brisbane) is to be relisted in the Minor Civil Dispute List for reconsideration in a remitted hearing.

5.   At the remitted hearing, the transcript of the hearing of 6 March 2019 shall be admitted in evidence.

6.   For the remitted hearing, each party shall prepare a plan showing the following information:

(a)    the route of the track as it was made by i8LM;

(b)   (if different) the route of the track as it should have been made by i8LM;

(c)    where the photograph was taken showing the steps made by i8LM;

(d)   where the photograph was taken showing the steps made by Matthew Brooke;

(e)    any other relevant features.

7.   Each party must bring three photocopies of the plan and any other material on which they rely, to the remitted hearing. If a physical hearing is not permitted by the relevant QCAT Practice Direction, then in accordance with the Hearing Advice, the plan and other material must be filed in the tribunal and given to the other side in good time for the remitted hearing either by email or post.

8.   The parties are asked to contact each other to discuss possible settlement of this dispute. If the parties do reach settlement they should inform the tribunal immediately so that the remitted hearing can be vacated.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where tribunal panel found that landowners were liable to pay the full contract price for landscaping works even if the works were done in the wrong place, on the basis that the landowners’ method of marking the ground for the works was flawed – where the panel failed to make a finding about the contractual obligation to do the landscaping works and other issues necessary to determine the dispute – whether there was an error of law requiring remission on appeal

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where tribunal panel refused to hear from one of the parties – whether so procedurally unfair that the appeal should be allowed on that basis

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 95

Assistant Commissioner Brian JA Wilkins & Anor v Gunter [2020] QCATA 101

REPRESENTATION:

Appellants:

Self-represented

Respondent:

Self-represented by a director, Daryl Baumgartner

APPEARANCES:

This matter was heard and determined on the papers…

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 Mascord v i8LM 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: [2020] QCATA 121
Decision Date: 21 August 2020

CaseChat Overview and Summary

The applicant, Mascord, sought to appeal a decision of a tribunal panel which found that they were liable to pay the full contract price for landscaping works to the respondent, i8LM. The dispute centred on whether the landscaping works had been performed correctly, and if not, whether this entitled the applicant to withhold payment. The tribunal panel found that the applicant’s method of marking the ground for the works was flawed, leading to the works being done in the wrong place, but nevertheless ruled that the applicant was liable to pay the full contract price. The appeal was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue was whether there was an error of law in the tribunal panel’s decision that necessitated an appeal. Specifically, the tribunal panel had not made findings on the contractual obligation to do the landscaping works and other issues that were necessary to determine the dispute. The applicant argued that this omission constituted an error of law. Additionally, the applicant claimed that the tribunal panel’s refusal to hear from one of the parties was procedurally unfair, denying natural justice, and that this alone should be a ground for allowing the appeal.

The tribunal found that the panel’s failure to make certain findings constituted an error of law. The tribunal panel did not address the contractual obligation to do the landscaping works correctly or other essential issues, which meant that the panel had not fully examined the merits of the dispute. The tribunal also found that the refusal to hear from one party was indeed procedurally unfair, denying natural justice. These errors warranted setting aside the original decision and remitting the matter for reconsideration. The tribunal granted leave to appeal, allowed the appeal, and set aside the original decision. It ordered that the case be relisted for a remitted hearing, with specific instructions for the preparation and submission of plans and other materials. The parties were also encouraged to attempt to settle the dispute before the remitted hearing.

The tribunal ordered that the original decision be set aside and the matter relisted for a remitted hearing. The tribunal provided detailed instructions for the preparation and submission of plans and other materials for the remitted hearing. The tribunal also encouraged the parties to attempt to settle the dispute before the remitted hearing.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision made on 18 March 2019 in MCDO 61234/18 (Brisbane) is set aside.

4. MCDO 61234/18 (Brisbane) is to be relisted in the Minor Civil Dispute List for reconsideration in a remitted hearing.

5. At the remitted hearing, the transcript of the hearing of 6 March 2019 shall be admitted in evidence.

6. For the remitted hearing, each party shall prepare a plan showing the following information:

(a) the route of the track as it was made by i8LM;

(b) (if different) the route of the track as it should have been made by i8LM;

(d) where the photograph was taken showing the steps made by Matthew Brooke;

(e) any other relevant features.

7. Each party must bring three photocopies of the plan and any other material on which they rely, to the remitted hearing. If a physical hearing is not permitted by the relevant QCAT Practice Direction, then in accordance with the Hearing Advice, the plan and other material must be filed in the tribunal and given to the other side in good time for the remitted hearing either by email or post.

8. The parties are asked to contact each other to discuss possible settlement of this dispute. If the parties do reach settlement they should inform the tribunal immediately so that the remitted hearing can be vacated.

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.