Miller v Lida Build Pty Ltd - [2013] QCA 332

SUPREME COURT OF QUEENSLAND

CITATION:

Miller & Anor v Lida Build Pty Ltd [2013] QCA 332

PARTIES:

SUSAN MARY MILLER
(first applicant)
PETER JOHN FRANCIS MILLER
(second applicant)
v
LIDA BUILD PTY LTD
(respondent)

FILE NO/S:

Appeal No 4760 of 2013
QCAT No 123 of 2012
QCAT No 146 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

5 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2013

JUDGES:

Gotterson and Morrison JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal refused.1.

Applicants to pay the respondent’s costs of and incidental to the application on the standard basis until 7 August 2013 and thereafter on the indemnity basis.2.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent contracted to construct a pool house for the applicants – where litigation ensued in the Queensland Civil and Administrative Tribunal (QCAT) – where the applicants were ordered by a decision on 26 March 2012 to pay the respondent $11,820.34 by 23 April 2012 – where the respondent appealed to the appeal tribunal of QCAT which set aside the tribunal’s decision and ordered the applicants to pay the respondent $25,795.78 by 30 May 2013 – where the appeal tribunal in those proceedings remitted the determination of one legal issue to the tribunal which remains to be determined – where the applicants wish to appeal to this Court against the whole of the decision of the appeal tribunal – where the applicants contend that the QCAT appeal tribunal erred in remitting part of the appeal back to the tribunal for determination in accordance with the decisions and orders made in the appeal decision, that the learned member erred in allowing the respondent to adduce new evidence, that the learned member erred by ignoring contract terms and erred by not correcting award summaries – whether the QCAT appeal tribunal erred in law in their findings on those issues

Queensland Building Services Authority Act 1991 (Qld), s 77(1)(c)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2)(b), s 150(3)

Chapman v State of Queensland[2012] QCA 134, cited
McEvoy and Anor v The Body Corporate for No 9 Port Douglas Road[2013] QCA 168, cited
Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252; [2012] QCA 158, cited

COUNSEL:

The second applicant appeared on his own behalf and on behalf of the first applicant
S N McNeil for the respondent

SOLICITORS:

The second applicant appeared on his own behalf and on behalf of the first applicant
No appearance for the respondent

GOTTERSON JA: Susan Mary Miller and Peter John Francis Miller have applied for leave to appeal to this Court from a decision of the appeal tribunal of the Queensland Civil…

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 Miller v Lida Build Pty Ltd

Details

AGLC: Miller & Anor v Lida Build Pty Ltd [2013] QCA 332
Case: [2013] QCA 332
Decision Date: 5 November 2013

CaseChat Overview and Summary

The matter of Miller v Lida Build Pty Ltd involved the applicants, the Millers, who had engaged the respondent, Lida Build Pty Ltd, to construct a pool house. The dispute arose from the quality of the construction work and culminated in litigation in the Queensland Civil and Administrative Tribunal (QCAT). The applicants sought to appeal the decision of the appeal tribunal of QCAT, which had set aside the original tribunal's decision and ordered the applicants to pay the respondent a specific sum. The applicants contended that the QCAT appeal tribunal had erred in remitting part of the appeal back to the tribunal, allowing the respondent to present new evidence, ignoring contract terms, and not correcting award summaries.

The central legal issues before the court were whether the QCAT appeal tribunal erred in remitting part of the appeal back to the tribunal for determination, allowing the respondent to adduce new evidence, ignoring contract terms, and not correcting award summaries. The applicants argued that these actions constituted errors of law and procedural unfairness, warranting the appeal to be reconsidered. The court needed to determine whether the QCAT appeal tribunal had correctly exercised its discretion and whether the errors alleged by the applicants warranted setting aside the appeal tribunal's decision.

The court found that the QCAT appeal tribunal had not erred in remitting part of the appeal back to the tribunal for further determination. The court held that the tribunal was entitled to manage the proceedings in this manner and that the remittal did not constitute an error of law. Regarding the admission of new evidence, the court determined that the tribunal had the discretion to allow such evidence and had not abused this discretion. The court also found that the tribunal had not ignored the contract terms or made errors in the award summaries. The court concluded that the applicants had not demonstrated that the tribunal's decision contained any errors of law that warranted the appeal being allowed.

The applicants' application for leave to appeal was refused, and they were ordered to pay the respondent's costs of and incidental to the application on the standard basis until 7 August 2013, and thereafter on the indemnity basis.

Orders

Orders of the court

Application for leave to appeal refused.1.

Applicants to pay the respondent’s costs of and incidental to the application on the standard basis until 7 August 2013 and thereafter on the indemnity basis.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Miller & Anor v Lida Build Pty Ltd [2013] QCA 332
PARTIES:	SUSAN MARY MILLER (first applicant) PETER JOHN FRANCIS MILLER (second applicant) v LIDA BUILD PTY LTD (respondent)
FILE NO/S:	Appeal No 4760 of 2013 QCAT No 123 of 2012 QCAT No 146 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	5 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2013
JUDGES:	Gotterson and Morrison JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal refused.1. Applicants to pay the respondent’s costs of and incidental to the application on the standard basis until 7 August 2013 and thereafter on the indemnity basis.2.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent contracted to construct a pool house for the applicants – where litigation ensued in the Queensland Civil and Administrative Tribunal (QCAT) – where the applicants were ordered by a decision on 26 March 2012 to pay the respondent $11,820.34 by 23 April 2012 – where the respondent appealed to the appeal tribunal of QCAT which set aside the tribunal’s decision and ordered the applicants to pay the respondent $25,795.78 by 30 May 2013 – where the appeal tribunal in those proceedings remitted the determination of one legal issue to the tribunal which remains to be determined – where the applicants wish to appeal to this Court against the whole of the decision of the appeal tribunal – where the applicants contend that the QCAT appeal tribunal erred in remitting part of the appeal back to the tribunal for determination in accordance with the decisions and orders made in the appeal decision, that the learned member erred in allowing the respondent to adduce new evidence, that the learned member erred by ignoring contract terms and erred by not correcting award summaries – whether the QCAT appeal tribunal erred in law in their findings on those issues Queensland Building Services Authority Act 1991 (Qld), s 77(1)(c) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2)(b), s 150(3) Chapman v State of Queensland[2012] QCA 134, cited McEvoy and Anor v The Body Corporate for No 9 Port Douglas Road[2013] QCA 168, cited Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252; [2012] QCA 158, cited
COUNSEL:	The second applicant appeared on his own behalf and on behalf of the first applicant S N McNeil for the respondent
SOLICITORS:	The second applicant appeared on his own behalf and on behalf of the first applicant No appearance for the respondent