Murphy v Number One Quality Homes Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Murphy & Anor v Number One Quality Homes Pty Ltd  [2021] QCATA 128

PARTIES:

DANIEL MURPHY

(first applicant)

JUDITH MURPHY

(second applicant)

V

NUMBER ONE QUALITY HOMES PTY LTD

(respondent)

APPLICATION NO/S:

APL309-20

ORIGINATING APPLICATION NO/S:

BDL364-18

MATTER TYPE:

Appeals

DELIVERED ON:

1 November 2021

HEARING DATE:

22 June 2021

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

The application for leave to appeal or appeal filed 2 October 2020 is dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where primary proceedings involve a building dispute – where applicant withdrew from a building contract – where applicant submitted that whether the withdrawal was valid ought be determined as a preliminary issue – where decision of Senior Member of the Tribunal refused request – where applicant seeks leave to appeal that interlocutory decision – where preliminary issue involves questions of law and fact including whether estoppel arises in the face of a statute – where leave to appeal only granted if it is necessary to correct a substantial injustice and there is a reasonable argument of error – whether the applicant should be granted leave to appeal

Queensland Building and Construction Commission Act 1991 (Qld), schedule 1B, s 35(3)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209
House v The King (1936) 55 CLR 499
In Re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318
Maritime Electric Co v General Dairies Limited [1937] AC 610
McDonald v Queensland Police Service [2017] QCA 255
M J Arthurs Pty Ltd v Isenbert [2017] QDC 85
Number One Quality Homes Pty Ltd v Murphy & Anor [2020] QCAT 339
Pickering v McArthur [2005] QCA 294
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293
Tepko Pty Ltd v Water Board (2001) 206 CLR 1

APPEARANCES & REPRESENTATION:

Applicant:

W LeMass (counsel) instructed by Clinton Mohr Lawyers

Respondent:

M White (counsel) instructed by Butler McDermott Lawyers

REASONS FOR DECISION

1. This is an application for leave to appeal or appeal against an interlocutory decision made by a Senior Member of the Tribunal.  As the decision in question was not the Tribunal’s final decision in the proceeding, leave to appeal is required.[1]  The decision made on 14 July 2020 was, in effect, to refuse an application by the present applicants (“the Murphys”) for orders that stated questions be separately determined as preliminary issues in the primary proceeding.  Reasons for that decision were published on 7 September 2020.[2]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), s…