Moreton Island Development Group v Smith Development Pty Ltd
[2013] QCATA 199
•10 July 2013
| CITATION: | Moreton Island Development Group v Smith Development Pty Ltd [2013] QCATA 199 |
| PARTIES: | Moreton Island Development Group (Appellant) |
| V | |
| Smith Development Pty Ltd (Respondents) |
| APPLICATION NUMBER: | APL057-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Cullinane AM QC, Judicial Member |
| DELIVERED ON: | 10 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal against the decision on the counter-application is dismissed. 2. The Respondent’s claim against the Appellant be returned to the Tribunal for determination. |
| CATCHWORDS: | APPEAL – BUILDING MATTER – where Tribunal found Appellant carried out building work while it was unlicensed – where Tribunal ordered Appellant to pay the Respondent fixed sum – where Appellant seeks to appeal that decision – whether appeal should be granted |
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.
REASONS FOR DECISION
The appellant appeals against a determination of the Tribunal on 8 January 2013 pursuant to which the Appellant was ordered to pay the Respondent the sum of $85,513.37 after taking into account a counter-application by the Appellant.
The notice of appeal raises a number of matters. Some of these are clearly matters of fact. Leave to appeal is required in relation to these. Some however involve questions of law. The first ground alleges that the Tribunal erred in law in considering the wrong question and failed to consider the correct question in that it failed to decide at all the building dispute between the parties by determining the Appellant’s entitlement under the building contract to the amounts claimed.
This claim amounts to a claim that its right to have its defence to the Respondent’s claim dealt with has been denied.
In these circumstances it seems to me the Appellant is entitled to appeal as of right under s 146 of the Queensland Civil and Administrative Act 2009 notwithstanding the existence of other grounds of appeal raising issues of fact.
The matter was heard on the papers.
It has had a long and somewhat tortuous history.
It arises out of a contract to construct a residence on Moreton Island. The Respondent was not the holder of a licence pursuant to the Queensland Building Services Authority Act 1991 as amended.
In earlier proceedings the Tribunal made a finding that the Respondent was unlicensed and in consequence thereof the sum of $528,753.00 already paid was to be repaid subject to any amount the Respondent might have to make a claim under s 42(4) of the Act.
It is from this decision that the Appellant appeal.
The Tribunal made an order by way of directions. In summary the order required the Respondent to provide details of its earlier claim identifying whether each item relates to materials and/or labour and whether any builder’s margin was included and to provide the relevant details.
The Appellant emphasises that no order was made requiring it to respond to those details either in those directions or elsewhere. The appellant’s obligations under these directions were limited to providing particulars of its counter-application.
The Appellant had in its response to the claim denied liability to the Respondent in respect of a number of matters. (See paragraphs 17 and 18.) These matters are also dealt with in a statement of an architect Mr Erlich, dated 25 July 2010, which had been provided to the Respondent.
The Tribunal in its judgment said at paragraph 16:
MIDG, in its response filed on 2 August 2012, say as to Schedule ‘A’, that apart from the amounts for the engineer and the Vacumaid system, the other amounts are not set out in a manner required for a claim under s 42 or in a manner that that enables them to determine whether the claim is within the section, and they dispute the allegations and the claim.
The defences raised to the Respondent’s claim involve a substantial sum and apart from the brief reference above do not appear to have been addressed.
Unfortunately directions orders failed to ensure that these issues emerged and were particularised for the hearings. In one case the Respondent’s failure to provide the statements of issues meant that the Appellant did not come under an obligation to respond to these and the matter proceeded to a hearing on the papers without these issues apparently being averted to.
The effect of all this in my view is that the Appellant has not had part of its defence considered. The appeal must be allowed in so far as it concerns the claim by the Respondent against the Appellant and the decision set aside and the matter returned to the Tribunal to be further dealt with.
So far as the counter-application is concerned the appellant is faced with factual findings here. The Tribunal found that the loss of rent was not made out on the material. The onus rested upon the Appellant to prove this loss which extended over 6 years. The Tribunal pointed to the lack of any explanation for a failure to mitigate. The Tribunal found that the claim for lost rent was not shown not to be too remote.
As to the battens and the painting the Tribunal found that the evidence did not satisfy it that the battens and painting were defective. As I have said these are factual findings and I am not persuaded that they were not open to the Tribunal.
In my view the Appellant’s appeal on the counter-application should be dismissed.
The matter has been characterised by delays and a certain passivity in relation to directions etc. It might have been expected that the Appellant might have taken a more robust attitude to having the matters it raised by defence to the claim dealt with. Perhaps the hearings on the papers would militate against this.
The appeal against the decision on the counter application is dismissed.
I order that the Respondent’s claim against the Appellant be returned to the Tribunal for determination.
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