Peckham v Rosa - [2024] QCAT 366

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Peckham v Rosa [2024] QCAT 366

PARTIES:

MATHEW PATRICK PECKHAM

(applicant)

v

JACK DANIEL ROSA

(respondent)

APPLICATION NO/S:

BDL 402-23

MATTER TYPE:

Building matters

DELIVERED ON:

5 September 2024

HEARING DATE:

On the papers

DECISION OF:

Member Taylor

ORDERS:

1. The Application for Domestic Building Dispute filed 27 November 2023 is dismissed.

CATCHWORDS:

ADMINISTRATIVE TRIBUNALS – QUEENSLAND ADMINISTRATIVE TRIBUNAL – where an application to the Tribunal had been made and purportedly served on the respondent – where the respondent did not provide any response to the application or otherwise contact the Tribunal – where the applicant filed an Affidavit of Service purporting to show service had been effected on the respondent – where the Affidavit of Service did not comply with the requirements of the Tribunal’s rules in terms of proving service – where the evidence provided in support of Affidavit of Service was otherwise inadequate to prove service

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where a homeowner asserted he entered into a contract with a building trade contractor – where the homeowner asserted the trade contractor performed work under the contract – where the trade contractor was not licenced to perform such work – where the homeowner sought restitution of money asserted to have been paid under the contract to the trade contractor – where the homeowner failed to adduce relevant and requisite evidence to prove the existence of the contract, the performance of the work, or the payment said to have been made

EVIDENCE – PROOF – STANDARD OF PROOF – STANDARD OF SATISFACTION – SUFFICIENCY – GENERALLY – where an application to the Tribunal had been made and purportedly served on the respondent – where the respondent trade contractor did not provide any response to the application or otherwise contact the Tribunal – where the applicant homeowner filed an Affidavit of Service purporting to show service had been effected on the respondent – where the Affidavit of Service did not comply with the requirements of the Tribunal’s rules in terms of proving service – where the evidence provided in support of Affidavit of Service was otherwise inadequate to prove service - where the homeowner asserted he entered into a contract with the trade contractor – where the homeowner asserted the trade contractor performed work under the contract – where the trade contractor was not licenced to perform such work – where the homeowner sought restitution of money asserted to have been paid under the contract to the trade contractor – where the homeowner failed to adduce relevant and requisite evidence to prove the existence of the contract, the performance of the work, or the payment said to have been made

Electronic Transactions (Queensland) Act 2001(Qld), s 23, s 24, s 25, s 26

Queensland Building and Construction Commission Act 1991 (Qld), s 42, Schedule 1 A s 8, Schedule 2 Schedule 1B s 13(5), s 19, s 22, s 19
Queensland Building and Construction Commission…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peckham v Rosa

Details

AGLC: Peckham v Rosa [2024] QCAT 366
Case: [2024] QCAT 366
Decision Date: 5 September 2024

CaseChat Overview and Summary

In the matter of Peckham v Rosa, the applicant, Mr. Peckham, sought relief through the Queensland Administrative Tribunal, alleging that he had entered into a contract with Mr. Rosa, a building trade contractor, for work to be performed on his property. Mr. Peckham further claimed that the work was carried out by Mr. Rosa, who was unlicensed to perform such tasks, and requested restitution of the money paid to Mr. Rosa. The Tribunal was tasked with determining whether service of the application was properly executed on Mr. Rosa and whether the applicant could substantiate his claims under the contract.

The legal issues before the Tribunal included whether the application was correctly served on Mr. Rosa and whether Mr. Peckham could establish the existence of a contract, the performance of the work, and the payment made to Mr. Rosa. The Tribunal found that the Affidavit of Service submitted by Mr. Peckham did not comply with the procedural requirements of the Tribunal's rules, and the evidence provided was insufficient to demonstrate that service had actually been effected on Mr. Rosa. Additionally, Mr. Peckham failed to provide the necessary evidence to substantiate his claims of a contractual agreement, the completion of the work, and the payment made to Mr. Rosa.

Consequently, the Tribunal dismissed the application for domestic building dispute on the basis that the service was not properly proven and that Mr. Peckham did not provide sufficient evidence to support his claims. The Tribunal concluded that the applicant had not met the burden of proof required to establish the existence of a valid contract, the performance of the work, or the payment made. The dismissal of the application resulted in no relief being granted to Mr. Peckham.

Orders

Orders of the court

1. The Application for Domestic Building Dispute filed 27 November 2023 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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