Nicol v Queensland Building and Construction Commission
[2023] QCATA 126
•11 October 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Nicol v Queensland Building and Construction Commission & Anor [2023] QCATA 126
PARTIES:
JOHN NICOL (applicant/appellant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent)
JENNIFER VALES (second respondent)
APPLICATION NO/S:
APL217-22
ORIGINATING APPLICATION NO/S:
BDL297-18 & GAR122-19
MATTER TYPE:
Appeals
DELIVERED ON:
11 October 2023
HEARING DATE:
7 August 2023
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D Reid
ORDERS:
1. The application for leave to appeal and appeal is dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – GENERALLY – where the applicant appealed a decision of the Tribunal at first instance to confirm the decision of the first respondent with respect to the statutory insurance scheme – where the reasons for the application for leave to appeal or appeal were difficult to discern – whether the applicant contended that the Tribunal erred in law – where the applicant had not sought to support the admission of fresh evidence – whether there was any basis for granting leave to appeal with respect to error of fact or mixed fact and law
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 143, s 147
Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, cited
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
First respondent:
M Robinson, solicitor of Robinson Locke Litigation Lawyers
Second respondent:
Self-represented
REASONS FOR DECISION
Introduction
The applicant, John Nicol, has filed an application for leave to appeal the decision of Member Paratz of 3 June 2022. On that day the Member affirmed a decision of the first respondent of 5 March 2019 to allow an insurance claim by the second respondent under the statutory insurance scheme related to the applicant’s building work at the second respondent’s residency in Coorparoo.
The Appeal
Leave to appeal is necessary pursuant to section 142(1) and (3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) because it is an appeal on the question of fact, or question of mixed fact and law. Under section 143(2) of the Act the application must state the reasons for the application or appeal.
It is important also to understand that under section 147(2) of the Act, the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal.
The nature of such an appeal was considered by the Court of Appeal in Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 where in his judgment, Muir JA said:
A characteristic of an appeal “by way of rehearing” is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal “by way of rehearing” under r 765(1) of the Uniform Civil Procedure Rules 1999, observed:
It is well settled that a provision that characterises an appeal to this Court as a ‘rehearing’ ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …
It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.” On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.
Although section 143(2) of the Act requires the application to state the reasons for the application for leave to appeal or appeal, it is difficult to discern from the application for leave to appeal, the reasons in this case. The grounds of appeal are stated as follows:
Both Milan and Jenny Vales claim that the igor design plans were sent to me for pricing. they have no documentary evidence of this. My quote to Jenny Vales shows pricing for the plans sent to me for quoting. Both Milan and Jenny Vales say that the engineering plans were part of the contract inspite of there being no mention of engineering in the contract
The Member has said that it makes no sence to have specifications by igor design in the contract. I say it makes no sense to sign up for costly engineerig details that i have never seen before and not priced for. [as per original]
It appears to me, therefore, that the applicant relies on:
(a)lack of documentary evidence that the engineering plans were sent to him;
(b)his quote “shows pricing for the plans sent to me for quoting”;
(c)there was no mention of engineering plans as part of the contract; and
(d)the Member has said that “it makes no [sense] to have [the engineering] specifications in the contract, [but] I say it makes no sense to sign up for costly [engineering] details that [I] have never been seen before and not priced for”.
Decision Below
It is necessary to consider the decision of the Member.[1] It is not a particularly lengthy judgement.
[1]Nicol v Queensland Building and Construction Commission & Anor [2022] QCAT 236.
Member Paratz first sets out some of the background including reference to the first respondent’s standard Level 2 Renovation Extension and Repair Contract of 22 April 2018, made between the applicant and the second respondent and the ultimate termination of the contract on 29 October 2018.
In his judgement, the Member found:
(a)the second respondent’s father, Milan Vales (Mr Vales) was a Draughtsman who produced drawings for the project and was present at and a co-signatory to the signing of the contract (paragraph 12 of his judgment);
(b)the original design was altered, but this was prior to the signing of the contract on 22 April 2018 (paragraph 13) and resulted in the revised drawings being prepared;
(c)Mr Vales gave evidence that his plans were submitted to an engineer who produced engineering plans (paragraph 14). The engineer, Mr Djakovic of Igor Designs Pty Ltd said this was done in July 2017, so well prior to the signing of the contract in April 2018; and
(d)the engineering plans, as drawn, were for a lift of the existing house and building under (paragraph 17).
During the course of negotiations leading up to the signing of the contract, a decision was made not to lift the house. Mr Vales said revised architectural drawings were prepared to reflect this change (paragraph 15).
This change was it seems not approved by the certifier and was not approved by the engineer. This is a matter to which I shall refer later.
Mr Djakovic said he only became aware of the changed nature of the work when the work was almost completed. He said part of the original engineering document was still relevant to the work as constructed but that amended documentation should have been prepared. He described the work performed as structurally inadequate.
The applicant said that during construction he discovered that support posts were in poor condition and said that as a result changes to construction were required. He said also that although Mr Vales prepared revised plans, including the use of steel beams to support a rear cantilever, it was agreed at a site meeting on 4 May 2018 that a timber cantilever would be built instead. He said that on that day he therefore ordered the timber which was delivered to the site on 9 May and construction completed using that timber.
The applicant seemed to accept that this change was not discussed with the engineer or certifier but says that to do so was Mr Vales’ responsibility.
That is a matter of significant dispute.
On Friday, 12 October 2018, the second respondent’s then solicitor, Australian Law Group, sent a letter to the applicant requiring him to remedy a number of breaches of the contract within 10 business days and gave notice of otherwise intending to terminate the contract. Those breaches are set out in paragraph 22 of the judgement.
Subsequently, the solicitor sent a Notice of Termination. Although the document was dated 25 October, it seems common ground it was sent on 28 October, a Sunday, and the applicant, in submissions for the appeal, agreed he received it on 29 October, that is the Monday immediately after.
The applicant in his evidence was dismissive of the engineering drawings saying he felt confident to do the work without engineering drawings. He said he signed the first page of the engineering drawings, as is apparent, at the time of signing the contract. He said he only did this as an indication he had seen that page and not to incorporate the drawings into the contract. He accepts he priced the job using steel beams as they were shown in the architectural as prepared by Mr Vales. He said he changed to wood as the support posts, when revealed during construction, were inadequate to support steel.
The applicant said at the site meeting on 4 March that Mr Vales approved the use of the timber cantilever that he proposed and ultimately built.
I interpose that at T1-68 of the transcript of the hearing below, Mr Vales was asked “did you actually… approve that he use the timber”, and Mr Vales responded “I have said go ahead, but you will have to justify this to engineer and/or certifier”.
I also note that nowhere in Mr Vales’ cross-examination can I see that it was ever suggested to him by the applicant, who was admittedly self-represented, that he agreed that the applicant could simply build it in timber.
The second respondent said she had emailed all pages of the architectural plans to the applicant, both the original plans with lift design and the version without the house being lifted. She said that at the meeting in May 2018, the applicant had simply said timber will be fine for the cantilevered beams.
Both the second respondent and Mr Vales said that at the time of the signing of the contract, the applicant signed both the architectural plans, and the front page of the engineering drawings, all of which were available at that meeting. Mr Vales said all plans required steel beams and that he told the applicant if he wanted to use timber he would have to get approval from the engineer and certifier. This is consistent with the passage in the transcript I early sent out.
This was of course never done, as the applicant said, it was simply agreed between he and Mr Vales that timber would be used. He accepted in his submissions below that “no engineers or certifiers were consulted” about this issue. He submitted that this was a result of the actions of the second respondent and Mr Vales, who said the second respondent accepted his work by moving into the home.
In this judgement Member Paratz noted irreconcilable differences between the evidence of the second respondent and her father on the one hand, and of the applicant on the other, concerning incorporation of the engineering drawings into the contract, and about the May 2018 site meeting. Importantly, the Member found:
(i) that the applicant was unrealistic in asserting that only the first page of the engineering plans formed part of the contract;
(ii) that the full engineering plans were provided to the applicant at the time the contract was signed;
(iii) the contract plans provided for the use of steel beams;
(iv) the applicant formed the view that the work was best done with timber;
(v) there was no paperwork supporting the adoption of timber and both the second respondent and Mr Vales denied agreement to use timber;
(vi) there was no documented variation supporting the use of timber;
(vii) the engineer did not support the use of timber that the applicant in fact constructed the house with;
(viii) the applicant’s use of timber supported the second respondent’s termination of the contract in accordance with clause 26 of the written contract;
(ix) the use of timber and resulting refusal by the builder to remedy the defect was a substantial breach of the contract as defined in clause 26.4; and
(x) consequently, the provisions of the statutory insurance scheme were enlivened and the decision of the first respondent should be confirmed.
Consideration of the Application for Leave to Appeal
The Application for Leave to Appeal and the applicant’s submissions are not easily reconcilable. The submissions appear to raise a significant number of matters not relied on in the application for leave to appeal. The solicitor for the first respondent helpfully set out issues raised in both, reading them together, and identified four identifiable grounds on which the applicant relies. These are set out in the first respondent’s submissions as follows:
Ground #1: That the Tribunal [had] erred in fact in finding that the Igor Engineering Design plans and a revised version of the architectural plans formed part of the contract, on the basis that the Applicant’s evidence was that they did not form part of the contract.
…
Ground #2: That the Tribunal erred in mixed fact and law in finding that the applicant was in substantial breach of the contract, on the basis that his evidence was that he was in compliance with the contract (being the contract in accordance with his evidence).
Ground #3: That the Tribunal erred in fact and law in that the decision is against the weight of facts regarding the scope of the contract, the work performed under it, and the termination.
Ground #4: Various other matters:
i.The standing of QBCC to give opinion (i.e., to make a decision) and whether the Member should have considered the decision under review;
ii. Certification aspects;
iii. Certain witnesses lied (Milan Vales and Dan Djakovic)
It can be seen the grounds are very clearly not solely matters of law as I earlier referred to. This is, of course, consistent with the applicant seeking leave to appeal as he has done.
The first respondent’s solicitor helpfully identifies the following principles relevant to consideration of such applications.
The question whether or not leave to appeal should be granted is usually considered according to the following established principles:
(a)Is there a reasonably arguable case of error in the prime decision?
(b)Is there a reasonable prospect that the Applicant will obtain substantive relief?
(c)Is leave necessary to correct a substantial injustice to the applicant caused by some error?
(d)Is there a question of general importance upon which further argument, and the decision of the Appellant (sic), Court or Tribunal, would be to public advantage?
Findings of fact by a Tribunal would it was also said not usually be disturbed on appeal if the facts inferred by the Tribunal upon which the finding is based are capable of supporting its conclusion, and there is evidence capable of supporting any inferences underlying it.
It is also necessary to observe that the appeal book prepared in this matter contains a great many documents. Some were tendered at the initial hearing. Some may be new. Nowhere does the applicant seek to support their admission as fresh evidence on the basis that they were not able to be identified below, and that their effect is likely to be of a decisive nature.
In relation to the first rationalised ground of appeal, it is clear there was evidence, especially that of the second respondent and Mr Vales, as to the fact that the contract included both the architectural and engineering drawings and in particular the use of steel beams. Indeed, the applicant accepted that steel beams were quoted on and agreed-upon. His case was that this was varied in the May 2018 meeting. There was evidence from both Mr Vales and the second respondent that the alleged variation was not agreed in the way that the applicant asserted.
They both said, as I have indicated, the applicant was to get engineering or certification approval which was, it is common ground, not done. On that basis this ground fails.
So too the ground concerning there being error in finding a substantial breach is without foundation. It depends on factual findings about the use of timber. This has been already referred to. This ground should be refused.
The third ground, if it is to be successful, would require findings that the evidence of Mr Vales and the second respondent, and indeed that of the engineer Mr Djakovic, and the architect is inherently improbable. There can be no basis for such findings. Their evidence is on its face credible and coherent and was accepted by Member Paratz.
The third ground, therefore, should also should be rejected.
The fourth rationalised ground raises a number of miscellaneous matters all without any proper legal basis.
In essence, the application for leave to appeal is based on the applicant’s dissatisfaction with the findings of fact by Member Paratz. Those findings were all based on evidence of witnesses, contrary to that of the applicant. That does not allow the applicant to successfully appeal.
In the circumstance I therefore refuse the application for leave to appeal and consequently the appeal itself.
I shall hear any argument as to further matters, such as to the form of the order or as to costs, by any party giving 7 days written notice to my associate, and to all other parties, of the need for that to occur. My associate will then list the matter for a directions hearing before me about those issues and will advise the parties of the form of that hearing.
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