Moose Plastering Pty Ltd v Habul

Case [2014] QCATA 354
CITATION: Moose Plastering Pty Ltd v Habul [2014] QCATA 354
PARTIES: Moose Plastering Pty Ltd
(Appellant)
v
Omar Habul
(Respondent)
APPLICATION NUMBER: APL419-13
MATTER TYPE: Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President
Susan M Burke, Member
DELIVERED ON: 12 December 2014
DELIVERED AT: Brisbane
ORDERS MADE:

1.    Application for leave to appeal granted.

2.    The appeal is allowed.

3.    The decision of the Tribunal made on 22 August 2013 to the extent that it relates to defect items 1, 2, 8 and 9 in the joint experts report filed 4 February 2013 is set aside.

4.    In lieu thereof it is ordered that the Respondent’s claim in relation to defect items 1, 2, 8 and 9 in the joint experts report filed 4 February 2013 is dismissed.
CATCHWORDS:

APPEAL – LEAVE TO APPEAL – BUILDING MATTER – where Appellant entered into contract with Respondent builder to carry out plastering work – whether Member made errors on questions of fact or questions of mixed law and fact - whether decision-maker made errors of fact in interpretation of evidence

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 4(c), s 61, s 62(1), s 142(1), s 142(2), s 142(3)(b), s 147

Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748
Chevalier v Thompkins (1915) 48 CS 53
Fox v Percy (2003) 214 CLR 118
Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421
Lewis v Anchorage Asphalt Paving Company (1975) 535 P 2d 1188
Lida Build Pty Ltd v Miller [2011] QCATA 219
McKone v Johnson [1966] 2 NSWR 471
Parry & Anor v Ewart [2000] QDC 054
Pickering v MacArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

Nature of the Proceedings and Jurisdiction

  1. This is an application for leave to appeal and to appeal a decision of the Tribunal in a domestic building dispute[1] pursuant to s 142(1) and s 142(3)(b) of the QCAT Act.

    [1]Tribunal’s jurisdiction to hear domestic building disputes is pursuant to s 77 of the Queensland Building Services Authority Act 1991 (Qld) (now the Queensland Building and Construction Commission Act 1991 (Qld)).

  2. The dispute arose out of the installation of plasterboard and cornices at a home being constructed at 34 Lapford Circle Drewvale (“the property”).

  3. The Respondent on appeal, Mr Habul, was the owner of the property and also an experienced builder. The Appellant, Moose Plastering Pty Ltd (“Moose Plastering”), was the contractor engaged to carry out the plastering work.

  4. The issues in dispute before the Member concerned the following matters:

    a)    the proper parties to the contract to the extent that the plastering contractor was either Mr Jakupovic, the First Respondent before the Member, or the Second Respondent before the Member, Moose Plastering, which was a…

Continue reading Moose Plastering Pty Ltd v Habul

Sign in free to access the full text

Details
AGLC
Moose Plastering Pty Ltd v Habul [2014] QCATA 354
Case
[2014] QCATA 354
Decision Date

CaseChat Overview and Summary

The appeal in Moose Plastering Pty Ltd v Habul was brought before the court by the Appellant, Moose Plastering Pty Ltd, who sought to challenge a decision made by a Tribunal concerning a building dispute with the Respondent, Habul. The Appellant, a plastering contractor, had entered into a contract with the Respondent to carry out plastering work. The Tribunal had made a determination regarding certain defects identified in the work, leading to the current appeal. The Appellant argued that the Tribunal had erred in its interpretation of the evidence and the application of the law, specifically in relation to defect items 1, 2, 8, and 9 outlined in a joint experts' report.

The legal issues that the court was required to decide centred on whether the Tribunal had made errors of fact, errors of mixed law and fact, or both. The Appellant contended that the Tribunal had misinterpreted the evidence presented and had applied the law incorrectly, resulting in an unjust outcome. The Appellant argued that the Tribunal's determination regarding the defects was flawed and that, as a result, the appeal should be allowed and the decision set aside. The Respondent, on the other hand, maintained that the Tribunal's decision was correct and should be upheld.

The court found that the Tribunal had indeed made errors in its interpretation of the evidence and the application of the law, particularly in relation to the specified defect items. The court determined that the Tribunal had failed to properly consider the evidence and had applied the law incorrectly, leading to an unjust outcome. As a result, the court granted the Appellant's application for leave to appeal and allowed the appeal. The decision of the Tribunal made on 22 August 2013 was set aside to the extent that it related to defect items 1, 2, 8, and 9 in the joint experts' report filed on 4 February 2013. In lieu thereof, the court ordered that the Respondent's claim in relation to these defect items be dismissed.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. The appeal is allowed.

3. The decision of the Tribunal made on 22 August 2013 to the extent that it relates to defect items 1, 2, 8 and 9 in the joint experts report filed 4 February 2013 is set aside.

4. In lieu thereof it is ordered that the Respondent’s claim in relation to defect items 1, 2, 8 and 9 in the joint experts report filed 4 February 2013 is 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.