ORDERS MADE: That the applicant to paythe respondent’s costs of and incidental to the applicant’s applications fixed at $3,760, within 14 days
CATCHWORDS :
DOMESTIC BUILDING DISPUTE – PROCEDURE –APPLICATION TO EXTEND TIME FOR LEAVE TO APPEAL AND APPLICATION TO STAY DECISION – where Learned Member decided that the respondent was entitled to terminate the Domestic Building Contract between it and the applicant – where the Learned member thereafter assisted the parties in reaching a settlement agreement – where the terms of the settlement agreement reflected in consent decision– where applicant later applied for leave to appeal and stay the operation of both decisions – where applicant out of time to apply for leave to appeal and sought extension of time – where applicant’s grounds for leave to appeal limited to new evidence – whether applicant able to show reasonable excuse for delay in filing for leave to appeal
DOMESTIC BUILDING DISPUTE – PROCEDURE – LEAVE TO APPEAL – NEW EVIDENCE – where applicant sought to introduce new evidence and did not allege error in the primary decision based on original evidence before the Tribunal – whether new evidence relevant to the determination of the issues in the primary decision and consent decision
DOMESTIC BUILDING DISPUTE – PROCEDURE –SETTLEMENT AGREEMENT – Queensland Civil and Administrative Tribunal Act 2009, s 137 – REOPENING PROCEEDINGS – where parties reached a negotiated settlement – where applicant later sought to appeal and stay the operation of the settlement agreement – where applicant did not apply to reopen the matter – whether applicant established grounds for reopening
PROCEDURE – COSTS – Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(3) – DISCRETION TO AWARD COSTS - where applicant’s applications did not raise any reasonably arguable grounds – whether prima facie position in s 100 should be displaced and costs ordered against applicant pursuant to s 102(3)
APPEARANCES and REPRESENTATION (if any):
APPLICANT:
Self-Represented
RESPONDENT:
Taylor Edwards Lawyers
REASONS FOR DECISION
The parties were involved in a building dispute[1] commenced in the former Commercial and Consumer Tribunal (now subsumed into QCAT). The dispute concerned their respective rights to validly terminate a domestic building contract between them dated 27 June 2007 under which Barker Builders Pty Ltd was to carry out certain construction works at Mr McEwen’s premises at Hunter Street in Ingham (the Contract).
A hearing was conducted on 22 February 2010 by a Member of QCAT, who firstly determined that Barker Builders had been entitled to terminate the Contract and made an order to that effect. Thereafter the parties, assisted by the member, negotiated an agreed outcome to the balance of their dispute under which Mr McEwen would pay Barker Builders a fixed sum…
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.
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Details
AGLC
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
Case
[2010] QCATA 49
Decision Date
CaseChat Overview and Summary
In McEwen v Barker Builders Pty Ltd, the applicant, Mr McEwen, sought to appeal and stay the decisions of the Queensland Civil and Administrative Tribunal (QCAT) that determined the respondent, Barker Builders Pty Ltd, was entitled to terminate a domestic building contract. The tribunal had also facilitated a settlement agreement between the parties, which was incorporated into a consent decision. Subsequently, Mr McEwen applied for leave to appeal and to stay the operation of these decisions, arguing that new evidence justified his appeal. However, he was out of time to apply for leave to appeal and thus sought an extension of time.
The court had to decide whether Mr McEwen could show a reasonable excuse for his delay in filing for leave to appeal. Additionally, it needed to determine if the new evidence was relevant to the issues in the primary decision and consent decision. The court also considered whether the applicant had grounds for reopening the proceedings after the settlement agreement and whether costs should be awarded against Mr McEwen.
The court found that Mr McEwen did not provide a reasonable excuse for his delay in applying for leave to appeal. The new evidence he sought to introduce did not pertain to the original evidence considered in the primary decision. The court noted that even if the new evidence was relevant, it would not have altered the outcome. Moreover, the applicant did not apply to reopen the matter under the Queensland Civil and Administrative Tribunal Act 2009, section 137, and thus did not establish grounds for reopening. Finally, the court found that Mr McEwen's applications did not raise any reasonably arguable grounds and that the costs provision under the Act should be applied, ordering Mr McEwen to pay the respondent's costs.
Orders
Orders of the court
That the applicant to pay the respondent’s costs of and incidental to the applicant’s applications fixed at $3,760, within 14 days