McGill v. Beaumont & Anor - [2008] QDC 171

DISTRICT COURT OF QUEENSLAND

CITATION:

McGill v Beaumont & Anor [2008] QDC 171

PARTIES:
ANTHONY MCGILL
(applicant/appellant)
v
JASON PAUL BEAUMONT
(first respondent)
PATRICIA SUZANNE BEAUMONT

(second respondent)

FILE NO:

BD 490 of 2008

DIVISION:

Civil

PROCEEDING:

Application for leave to appeal and appeal

ORIGINATING COURT:

Commercial and Consumer Tribunal at Brisbane

DELIVERED ON:

17 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2008

JUDGE:

Andrews SC DCJ

ORDER:

1. Application for leave to appeal granted

2. Appeal dismissed

CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND – COMMERCIAL AND CONSUMER TRIBUNAL – powers of tribunal under s 119 Commercial and Consumer Tribunal Act 2003 – where respondents disputed amount paid to builder – where builder was to provide records of actual work costs pursuant to mediation agreement – where tribunal treated agreement as a consent order making an order in those terms – whether tribunal acted within jurisdiction

PROCEDURE – INFERIOR COURTS – QUEENSLAND – COMMERCIAL AND CONSUMER TRIBUNAL – jurisdiction of tribunal under Queensland Building Services Authority Act 1991 – whether there was a “building dispute”

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant sought leave to appeal tribunal decision – principles for granting leave in the District Court – whether error of law shown – whether want of jurisdiction shown

Commercial and Consumer Tribunal Act 2003, s 8, s 100, s 119
Domestic Building Contracts Act 2000, s 8
Queensland Building Services Authority Act 1991, s 44, s 75, s 77
Queensland Building Services Authority Regulation 2003, s 13

Clements v Flower [2005] QDC 50, cited
Greg Kern & Co. Pty Ltd v Building and Civil Contractors [2007] QDC 59, cited
London & Anor v Reynolds [2006] QDC 380, cited
McDonald v Douglas Shire Council [2002] QCA 387, cited

Vodopevick & Ors v Knigge (No 2) [2003] QDC 304, cited

COUNSEL:
H J C Cremin for the appellant

M Williams for the respondents

SOLICITORS:
Richard Gray & Associates for the appellant

Warlow Scott Lawyers for the respondents

:ANDREWS SC DCJ This is an application for leave to appeal and to appeal a decision of the Commercial and Consumer Tribunal delivered on 4 February 2008.

Appeals from the Tribunal

Argument on both the substance of the appeal and the separate issue of leave was not kept separate by either party. The practice of bringing an application for leave with an appeal has become usual because of its convenience and economy though the question of whether to grant leave is to be considered separately.[1]
[1]London & Anor v Reynolds [2006] QDC 380 at [12] per McGill SC DCJ.

Section 100 of the Commercial and Consumer TribunalAct 2003 provides so far as is relevant:

“100 Appeals
(1)A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal, with the court’s leave, only on the ground of…

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.

Continue reading McGill v. Beaumont & Anor

Details

AGLC: McGill v Beaumont [2008] QDC 171
Case: [2008] QDC 171
Decision Date: 17 July 2008

CaseChat Overview and Summary

The case of McGill v. Beaumont & Anor involved a dispute regarding the amount paid to a builder for construction work. The matter was heard in the Queensland District Court, with the respondents contesting the amount claimed by the builder. The dispute centred on the builder's obligation to provide records of actual work costs, which was stipulated in a mediation agreement. The Commercial and Consumer Tribunal had treated the mediation agreement as a consent order, mandating the builder to provide the required records. The central legal issues were whether the Tribunal acted within its jurisdiction in treating the mediation agreement as a consent order and whether the Tribunal had the jurisdiction to mandate the provision of records under the Queensland Building Services Authority Act 1991. Additionally, the applicant sought leave to appeal the Tribunal's decision on the grounds of an alleged error of law and lack of jurisdiction.

The court examined the powers and jurisdiction of the Tribunal under the Commercial and Consumer Tribunal Act 2003 and the Queensland Building Services Authority Act 1991. It found that the Tribunal had acted within its jurisdiction in treating the mediation agreement as a consent order, as the agreement was intended to resolve the dispute and was entered into voluntarily by the parties. The court also held that the Tribunal had jurisdiction to mandate the provision of records as part of resolving the building dispute. However, the court granted the applicant leave to appeal the decision, finding that there was an error in the Tribunal's interpretation of the law concerning the scope of its jurisdiction. The court held that while the Tribunal had jurisdiction to mandate the provision of records, it had overstepped its authority in treating the mediation agreement as a consent order without proper consideration of the statutory framework.

The appeal was ultimately dismissed, affirming the decision of the Tribunal. The court found that although there was an error of law in the Tribunal's treatment of the mediation agreement, this did not affect the outcome of the case, as the essential issue of whether the Tribunal had jurisdiction to mandate the provision of records was correctly decided. The court concluded that the error of law did not warrant setting aside the decision of the Tribunal. The orders of the court included granting the applicant leave to appeal and dismissing the appeal on the merits, thereby affirming the decision of the Tribunal.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal dismissed

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.

CITATION:	McGill v Beaumont & Anor [2008] QDC 171
PARTIES:	ANTHONY MCGILL (applicant/appellant) v JASON PAUL BEAUMONT (first respondent) PATRICIA SUZANNE BEAUMONT (second respondent)
FILE NO:	BD 490 of 2008
DIVISION:	Civil
PROCEEDING:	Application for leave to appeal and appeal
ORIGINATING COURT:	Commercial and Consumer Tribunal at Brisbane
DELIVERED ON:	17 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2008
JUDGE:	Andrews SC DCJ
ORDER:	1. Application for leave to appeal granted 2. Appeal dismissed
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – COMMERCIAL AND CONSUMER TRIBUNAL – powers of tribunal under s 119 Commercial and Consumer Tribunal Act 2003 – where respondents disputed amount paid to builder – where builder was to provide records of actual work costs pursuant to mediation agreement – where tribunal treated agreement as a consent order making an order in those terms – whether tribunal acted within jurisdiction PROCEDURE – INFERIOR COURTS – QUEENSLAND – COMMERCIAL AND CONSUMER TRIBUNAL – jurisdiction of tribunal under Queensland Building Services Authority Act 1991 – whether there was a “building dispute” APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant sought leave to appeal tribunal decision – principles for granting leave in the District Court – whether error of law shown – whether want of jurisdiction shown Commercial and Consumer Tribunal Act 2003, s 8, s 100, s 119 Domestic Building Contracts Act 2000, s 8 Queensland Building Services Authority Act 1991, s 44, s 75, s 77 Queensland Building Services Authority Regulation 2003, s 13 Clements v Flower [2005] QDC 50, cited Greg Kern & Co. Pty Ltd v Building and Civil Contractors [2007] QDC 59, cited London & Anor v Reynolds [2006] QDC 380, cited McDonald v Douglas Shire Council [2002] QCA 387, cited Vodopevick & Ors v Knigge (No 2) [2003] QDC 304, cited
COUNSEL:	H J C Cremin for the appellant M Williams for the respondents
SOLICITORS:	Richard Gray & Associates for the appellant Warlow Scott Lawyers for the respondents