McCoy Constructions Pty Ltd v Dabrowski

[2002] QCA 77

[2002] QCA 77

COURT OF APPEAL

McMURDO P
WILLIAMS JA
MUIR J

No 31 of 2002

McCOY CONSTRUCTIONS PTY LTD
(ACN 057 812 996)  Appellant/Plaintiff

v.

ALEKO DABROWSKI  Respondent/Defendant

BRISBANE

..DATE 14/03/2002

JUDGMENT

WILLIAMS JA:  This is an application for leave to appeal against the decision of a District Court Judge allowing an appeal from a determination made by the Queensland Building Tribunal.  The litigation arises out of a contract between the parties for the building of a domestic dwelling.  The Court has heard argument on the question of leave for over an hour and the position is not clear, largely because of the fact that the Court does not now have the assistance of a full record of proceedings below.

It is an unfortunate situation, if only because the amounts in issue are relatively small and it is likely that any further litigation will generate costs vastly exceeding the amount in dispute between the parties.  However, I have come to the conclusion that there are some legal issues of importance involved, which can only be answered by this Court once it is in possession of a transcript of all proceedings below. 

There is a question as to whether or not the contract was an entire contract and the consequences flowing from a finding that it was to be so categorised.  There is also an issue as to the appropriate legal test to apply in order to determine whether there has been substantial completion of a contract such as this.  Counsel for the respondent home owner has referred to some authorities and it is not possible to determine their applicability to the facts of this case without recourse to the transcript.

There is then also a question as to the entitlement of the builder to any additional payment given the findings by the Tribunal as to how the contract was terminated.  There is a question as to whether or not, given the finding as to the way in which the contract was terminated, the builder is entitled to anything on a quantum meruit basis and if so whether or not that has been formally asked for.

In the circumstances, but rather reluctantly, it is my view that leave to appeal should be granted.  I would record, however, that the Court suggested to counsel during the course of argument that the most appropriate way of resolving the outstanding issues would be to remit the matter to the Building Tribunal with appropriate directions.

Counsel for the builder indicated agreement with that course being followed but it was vigorously opposed by counsel for the building owner.  In those circumstances it would be inappropriate for the Court to remit the matter without hearing substantive argument; but the suggestion from the Court and the response of the parties should be noted because it may well be a matter which the Court ultimately hearing the appeal would regard as material in determining the costs of the appeal including this application. 

The order of the Court should be grant leave to appeal.  Costs reserved.

THE PRESIDENT:  I agree that leave to appeal should be granted and costs reserved.

MUIR J:  I agree.  There is also in my view a real question of whether the respondent can recover damages for remedying defective tile work without bringing into account moneys which may be owing to the applicant under the contract or, peerhaps more accurately, on a quantum meruit.

THE PRESIDENT:  The order is as outlined by Justice Williams.

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