McAlpine v. Wieland

[2008] QDC 76

DISTRICT COURT OF QUEENSLAND

CITATION:

McAlpine v Wieland [2008] QDC 76

PARTIES:

ROSS MCALPINE

Applicant/Appellant

AND

WILLIAM WIELAND

Respondent

FILE NO/S:

D86/07

DIVISION:

Appellate

PROCEEDING:

Appeal from a decision of the Commercial and Consumer Tribunal

ORIGINATING COURT:

District Court, Rockhampton

DELIVERED ON:

8 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2008

JUDGE:

Nase DCJ

ORDER:

1 Application for leave to appeal refused

2 Appellant pay the respondents costs of and incidental to the appeal assessed on the standard basis

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - whether findings of Commercial and Consumer Tribunal amounted to an error of law

Commercial and Consumer Tribunal Act 2003, s 100

Cases considered

Clements v Flower [2005] QDC 50

R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473

COUNSEL:

Mr S Deaves for the applicant/appellant

Mr T Arnold for the respondent

SOLICITORS:

South and Geldard Solicitors for the applicant/appellant

Simpson and Grant Solicitors for the respondent

1. This is an appeal (and application for leave to appeal) from a decision of the Commercial and Consumer Tribunal constituted by Mr A Collins.  Appeals from the Tribunal are confined to an appeal on an error of law or, excess or want of jurisdiction (s 100 Commercial and Consumer Tribunal Act 2003). Argument on both the substance of the appeal and the separate issue of leave was heard at the same time.

1. A basic narrative of the events leading up to the present appeal is as follows: in November 2004 Mr McAlpine contracted with a builder[1] for the construction of a dwelling.  The builder, in about April 2005, in turn contracted out certain concreting works to Mr Wieland.  Wieland’s contract was for laying slabs for the house and for the veranda.  Shortly after the house slab was laid the builder went into voluntary administration.  At that time the builder owed Wieland $22,000 for laying the house slab.  Later in April 2005 Wieland sent an invoice for $13,000 to McAlpine.  The invoice on its face related to work already done.[2]  On 20 May 2005 McAlpine paid the $13,000.  In October 2005 Wieland completed the concreting on the house site.  What remained to be done was to lay a slab for the veranda.  For that work he rendered an account to McAlpine, who by that stage was registered as an owner/builder of the dwelling.

   [1]In fact, he contracted with two separate entities, who for present purposes I will simply refer to as the builder.

   [2]This much seemed to be accepted by McAlpine at the Tribunal hearing, but it was not concede by Mr Deaves in argument before me.

1. Unfortunately, that was where the goodwill stopped.  McAlpine refused to pay the account for the October work.  Wieland brought a claim before the Commercial and Consumer Tribunal for recovery of $15,500 for those works.  In response, McAlpine counterclaimed seeking recovery of the $13,000 and damages in the amount of $3,045.90 arising out of the October work[3].

   [3]McAlpine…