Pivovarova v Michelsen - [2015] QCATA 73

CITATION:

Pivovarova v Michelsen [2015] QCATA 73

PARTIES:	Tatiana Pivovarova (Applicant/Appellant)
v
Peter B. Michelsen trading as Peter Michelsen Building Service ABN 84003506297 (Respondent)

APPLICATION NUMBER:

APL337-13

MATTER TYPE:

Appeals

HEARING DATE:

26 March 2014

HEARD AT:

Brisbane

DECISION OF:

Justice David Thomas, President
Member Deane

DELIVERED ON:

10 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is allowed.

2. The decision of 24 July 2013 is set aside.

3. The name of the party is corrected and changed to Peter B. Michelsen trading as Peter Michelsen Building Service ABN 84003506297

4. The matter is remitted to the Tribunal for determination according to law.

5. Tatiana Pivovarova is to file in the Tribunal two (2) copies and provide to Peter B. Michelsen trading as Peter Michelsen Building Service ABN 84003506297 one (1) copy of any further submissions and evidence as to costs by 4:00pm on 1 July 2015.

6. Peter B. Michelsen trading as Peter Michelsen Building Service ABN 84003506297 is to file in the Tribunal two (2) copies and provide to Tatiana Pivovarova one (1) copy of any submissions and evidence as to costs (if any) in response by 4:00pm on 22 July 2015.

7. The application for costs will be determined on the papers without an oral hearing, unless a party requests an oral hearing, not before 22 July 2015.

8. The proceeding BDL245-12 is listed for a directions hearing on a date to be fixed.

9. The proceeding BDL245-12 is listed for a further hearing on a date to be fixed.

CATCHWORDS:

APPEALS – DOMESTIC BUILDING DISPUTE – whether leave to appeal required – whether Practical Completion reached – whether builder entitled to Practical Completion Stage Payment less deductions – whether sufficient or adequate reasons provided

Queensland Civil & Administrative Tribunal Act 2009 (Qld) ss 3(b), 135, 142, 146, 147
Domestic Building Contracts Act 2000 (Qld) ss 67, 84

Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 37

Chambers v Jobling (1986) 7 NSWLR 1

Combined Building Services Pty Ltd v Springall and Anor [2011] QCAT 674
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Dearman v Dearman (1908) 7 CLR 549
Ericson v Queensland Building Services Authority [2013] QCA 391

Fraser v The Irish Restaurant & Bar Company Pty Ltd [2008] QCA 270
Fox v Percy (2003) 214 CLR 118
Go & MJ Nominees Pty Ltd v Hollywells Homewares Pty Ltd [2010] QSC 169
Hoenig v Isaacs [1952] 2 All ER 176

Homewares Pty Ltd [2010] QSC 169
Kurnnan & Anor v Pivovarova [2012] NTSC 48
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Pickering v McArthur [2005] QCA 294
Radcliff and Anor v Walker [2011] QCAT 435
Ricchetti v Lanbuilt Pty Ltd [2011] QCATA 266 Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18
Seymour v Racing Queensland [2013] QCATA 139

Sumpter v Hedges

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.

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Details

Case: [2015] QCATA 73
Decision Date: 10 June 2015

CaseChat Overview and Summary

The case of Pivovarova v Michelsen involved a dispute between the plaintiff, Tatiana Pivovarova, and the defendant, Peter B. Michelsen trading as Peter Michelsen Building Service. The crux of the dispute was over the completion of a domestic building project and the associated payments. This matter came before the court as an appeal against a decision made by a tribunal on 24 July 2013. The primary issues that the court needed to resolve were whether leave to appeal was required, whether the building project had reached practical completion, and if the builder was entitled to the practical completion stage payment less certain deductions. Additionally, the court had to determine whether the reasons provided for these deductions were sufficient or adequate.

The court found that the appeal did not require leave and proceeded to examine the issues of practical completion and the stage payment. It was determined that the tribunal had erred in its interpretation of practical completion, and the builder's entitlement to the stage payment needed re-evaluation. The reasons provided for the deductions were found to be inadequate. Consequently, the decision of 24 July 2013 was set aside, and the matter was remitted back to the tribunal for a fresh determination in accordance with the law. The court also corrected the name of the defendant to reflect the correct trading name and ABN.

The court's decision mandated that specific timelines be followed for the submission of further evidence and submissions relating to costs. It also directed that the application for costs would be determined based on the submitted papers, unless an oral hearing was requested by a party. The court further scheduled a directions hearing and a further hearing to be determined at a later date. This comprehensive approach aimed to ensure that all aspects of the dispute were adequately addressed and resolved.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of 24 July 2013 is set aside.

3. The name of the party is corrected and changed to Peter B. Michelsen trading as Peter Michelsen Building Service ABN 84003506297

4. The matter is remitted to the Tribunal for determination according to law.

7. The application for costs will be determined on the papers without an oral hearing, unless a party requests an oral hearing, not before 22 July 2015.

8. The proceeding BDL245-12 is listed for a directions hearing on a date to be fixed.

9. The proceeding BDL245-12 is listed for a further hearing on a date to be fixed.

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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