Nicol v Luke
[2017] QCATA 118
•10 November 2017
CITATION: | Nicol v Luke [2017] QCATA 118 |
PARTIES: | John Nicol |
| v | |
| Steve Luke (Respondent) | |
APPLICATION NUMBER: | APL424-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | 23 August 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz |
DELIVERED ON: | 10 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to Appeal as to questions of fact, or of mixed law and fact, is refused. 2. The Appeal is dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a builder appealed a decision dismissing his claim against a bricklayer – where the qualifications and independence of an expert were queried – where the fixing of an amount for costs of an expert were queried – where no error of law or of fact, or of mixed law and fact, was found Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 |
APPEARANCES: | |
APPLICANT: | Mr Nicol (in person) |
RESPONDENT: | No appearance |
REASONS FOR DECISION
The Tribunal made an Order on 15 July 2016 dismissing a claim by Mr Nicol (a builder) against Mr Luke (a bricklayer). Mr Nicol has filed this Appeal against that decision.
The Tribunal made a further order on 10 April 2017 ordering Mr Nicol to pay Mr Luke costs fixed in the amount of $4,080.00, if Mr Luke produced certain receipts. Those receipts were produced, but Mr Nicol has not paid the costs to Mr Luke. Mr Nicol also appeals the amount of the costs awarded to him.
Mr Luke was given written notice of the hearing by the Tribunal in the usual manner. He did not appear on the hearing of this Appeal at the allocated time. An attempt was then made by the Hearing Support Office to telephone him to check if he had been delayed. The HSO believed they were speaking to Mr Luke, and told him that he would be rung back to take part in the hearing on the record. The same number was then rung in the hearing, but the person then answering the telephone advised that Mr Luke was not in the office.
We were satisfied that Mr Luke had Notice of the Appeal Hearing, and the hearing proceeded in his absence.
The Grounds of Appeal were phrased in separate points, rather than in express statements as to errors of law or fact, or mixed law and fact. On the Appeal Hearing, Mr Nicol appeared to identify four grounds which he was relying upon (although his submissions were not clear in particularising these):
a)Issues as to the Industry or Legislative Standards
b)Issues as to the costs decision of 10 April 2017
c)Issues as to the independence of witnesses
d)The acceptance of evidence without documentation
Where Mr Nicol’s grounds of appeal are as to questions of fact or mixed law and fact, he would require leave to appeal on those grounds[1].
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142
The original decision
Mr Nicol sought damages for defective work and/or restitution from Mr Luke for alleged defective brickwork. The learned member noted the history, and Mr Nicol‘s claim, as follows:
[1] Mr Nicol is a licenced builder. Mr Luke is a licenced bricklayer. Mr Nicol engaged Mr Luke to lay the bricks at a home which he had contracted to build. Mr Luke performed the work. Mr Nicol has paid Mr Luke in full for the work, in the amount of $23,032.90.
[2] The homeowners failed to pay Mr Nicol’s final claim in full. He brought proceedings in QCAT against them (File number BDL075-15), seeking a total amount of $123,431.52.
[3] Ultimately, those proceedings were settled at a compulsory conference on 17 June 2015. Mr Nicol agreed to accept the sum of $105,000 in full and final satisfaction of his claim. There is no documentation to indicate the basis for the reduced amount as negotiated with Mr Nicol, although he says it relates to the defective brickwork. Mr Nicol says that the sum was reduced because of the homeowner’s claims that the brickwork is defective. The homeowners relied upon a report of Mr Helisma in relation to the alleged defective works at the premises, including those raised about the brickwork. Mr Nicol says that he had earlier performed some rectification to the brickwork at the premises in response to issues raised by the homeowners. He says he did this work himself, with the assistance of a contract labourer who was paid $40 per hour. He has filed an invoice for $3,461.00 including materials, for the rectification work done.
[4] He says that when he settled BDL075-15, he had paid $18,000.00 to Mr Luke (and he was not intending to pay the balance because the work was defective, but under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIP Act’) an adjudicator subsequently ordered that he pay the balance to Mr Luke).
[5] Mr Nicol filed this (second) domestic building dispute application against Mr Luke on 22 May 2015. Although his documents filed at different stages of the proceedings refer to various other claimed amounts, Mr Nicol seeks damages in the amount of $23,032.90 (being the full amount he paid Mr Luke) and claimed rectification costs of $3,461.00. Further, he seeks the costs of engaging an expert, Mr Chris Boyle to prepare two reports (in the amount of $2,981.25) and the cost for Mr Boyle to attend at the hearing (in the amount of $650.00), as well as interest.
[6] Mr Luke responds that the application should be dismissed. He argues that he has done the work and should be paid for it. Other than in relation to some minor works in the period immediately after he had completed the bricklaying, which both parties acknowledge he did, he says that he has not been requested by Mr Nicol to rectify any work. He disputes that any further rectification has occurred having regard to the reports of experts engaged by him in the proceedings, namely Mr Clive Whyman and Mr Peter Alexander. He argues that Mr Nicol has not supported his claim of loss with any appropriate documents, such as invoices. He also claims that he was engaged as a labourer on piece meal rates by Mr Nicol and was not required to use his licence as a bricklayer. Mr Nicol being responsible for site supervision. Mr Luke seeks his costs of engaging experts (in a currently unqualified amount).
[7] For reasons to be explained, I have concluded that Mr Nicol’s claim should be dismissed.
Industry or legislative standards
Mr Nicol submitted that Mr Luke ‘did not do the brickwork to the building code or to Australian Standards’.[2]
[2]Submissions of Applicant – John Nicol filed 10 May 2017, p 2, [5].
The learned member considered whether the brickwork was defective, and had particular regard to the expert witnesses and relevant guides and standards. For example, in the course of consideration of the clearance between window frames and brick sills, she made reference to the QBCC Guide to Standards and Tolerances, the BCA, and an industry guide produced by the Australian Window Association.[3]
[3]Reasons, [30].
The Appeal Tribunal is not a forum for a re-hearing of a matter. It is necessary to show that an error of law or fact, or mixed law and fact, has been made in the original decision for the decision to be interfered with.
The Learned Member gave due consideration to the issue of whether the brickwork accorded with the Building Code or applicable standards, with due consideration to the facts, and no error appears on this ground.
The costs decision
No reference was made in the Grounds of Appeal to the costs decision. At the Tribunal Hearing, Mr Nicol wished to appeal the Order that he pay costs of $4,080.00 to Mr Luke.
The basis of Mr Nicol’s appeal appeared to be that the Tribunal should not have accepted that Mr Clive Whyman was an expert, and that no amount should have been allowed for his consultancy fees (which formed the basis of the Order).
The Learned Member considered the qualifications of Mr Whyman in her decision, and noted:[4]
As Mr Whyman is both an experienced builder and a quantity surveyor, he was in a position to provide all of the opinion evidence that might have reasonably been required in the proceeding, despite the lack of clarity about the claim.
[4]Ibid, [17].
The Learned Member considered the qualifications of Mr Whyman, and was satisfied that he was a professional expert to whom a rate of fees of $170.00 per hour could be validly attributed,[5] and no error appears on this ground.
[5]Ibid, [22].
Independence of witnesses
Mr Nicol submitted that ‘the qualifications of Whyman have not been proven’.
The learned member noted as to the issue of independence that:[6]
[19] I accept that Mr Luke met Mr Whyman and engaged him on Mr Foggo’s recommendation in the proceedings. Although Mr Whyman was introduced through Mr Luke’s association with Mr Foggo, I am not satisfied, based on the evidence, that he has a relationship with Mr Luke which casts doubt upon his independence as an expert in the proceedings.
[6]Ibid, [19].
The Learned Member considered, and was satisfied as to, the role and qualifications of Mr Whyman. Her conclusion was based on the material before her, and there is no material to suggest that she was in error in doing so, and no error appears on this ground.
The acceptance of evidence without documentation
Mr Nicol submitted that ‘I do not think it is right for Member Howard to work out a new account for Whyman to the sum of $4,080.00’.[7]
[7]Submissions of Applicant – John Nicol filed 10 May 2017, p 2, [6].
The Learned Member considered the claim for fees in respect of Mr Whyman by Mr Luke in the amount of $7,337.00, and only partially allowed the claim as follows:
[22] It is uncontroversial that $170.00 per hour is reasonable for a quantity surveyor. I would consider reasonable costs to be, as follows: 6 hours for reading a brief and conducting an initial site visit (including an onsite conference with Mr Luke); 2 hours to prepare his report; 6 hours for the conclave including preparation and joint report; 2 hours for a follow-up site visit and conference; and 8 hours to attend the hearing, including conferring with Mr Luke before the hearing. That is a total of 24 hours. At $170.00 per hour, this is a total of $4,080.00.
It is a regular occurrence for Courts and Tribunals to assess the amount of costs allowed to witnesses or lawyers. The Learned Member in this instance applied an uncontested rate, and gave a clear basis for her assessment.
Mr Nicol has not shown any basis to conclude that the calculation by the Learned Member was not reasonably made, or was not supported by the facts. No error appears on this ground.
Conclusion
Mr Nicol has not demonstrated any error of law or fact, or mixed law and fact, made by the Learned Member in making her decision.
Leave to appeal as to questions of fact, or of mixed law and fact, is refused.
The Appeal is dismissed.
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