Poiner v Quirk

Case [2007] QDC 299

DISTRICT COURT OF QUEENSLAND

CITATION:

Poiner v Quirk & Anor [2007] QDC 299

PARTIES:

RICHARD GEORGE POINER

Appellant

AND

PAUL QUIRK AND MURRAY PANTALEON

Respondents

FILE NO/S:

Appeal BD1103/07

DIVISION:

PROCEEDING:

Application for leave to appeal

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

9 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2007

JUDGE:

McGill DCJ

ORDER:

Leave to appeal; appeal allowed in part, decision of the Tribunal varied by reducing the amount ordered to be paid by the appellant to the respondents from $113,513.20 to $95,467.04.  Appeal otherwise dismissed.  Order appellant to pay the respondents’ costs of the appeal to be assessed.

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – Recovery of monies – prime cost items – provisional sums – adjustment of contract price.

BUILDING AND ENGINEERING CONTRACTS – Recovery of monies – undocumented variation – statutory requirement for payment not made out.

INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – bias – tribunal member hearing second matter involving same builder – no grounds for apprehended bias – waiver.

INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – natural justice – use of evidence in different matter – need to give parties notice of intention to do so and opportunity to respond.

INFERIOR TRIBUNAL – Commercial and Consumer Tribunal – procedure – informal nature of tribunal – no error of law or injustice shown in procedural rulings.

Commercial and Consumer Tribunal Act 2003 s 47.

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 – cited.
Adamou v Director General of Social Security (1985) 3 AAR 321 – cited.
Australian Postal Corporation v Kember [2003] FCA 800 – cited.
Clements v Flower [2005] QDC 50 – followed.
Cropper v Smith (1884) 26 CHD 700 – cited.
Re: JRL, ex parte CJL (1986) 161 CLR 342 – applied.
Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533 – cited.
Lindon v the Commonwealth (No 2) (1996) 70 ALJR 541 – followed.
Livesey v New South Wales Bar Association (1983) 151 CLR 288 – applied.
McMuller v Commissioner for Superannuation (1985) 61 ALR 189 – cited.
Re Morling, ex parte Australasian Meat Industry Employees Union (1985) 60 ALJR 402 – followed.
Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221 – cited.
Secretary, Department of Veterans’ Affairs v Studdert [2001] FCA 1642 – cited.
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 – cited.
Stead v State Government Insurance Commission (1986) 161 CLR 141 – applied.
Re Taylor Woodrow International Ltd and the Minister for Health (1978) 19 SASR 1 – cited.
Tuta Products Pty Ltd v Hutcherson Bros Pty Ltd (1972) 46 ALJR 549 – cited.
Vakauta v Kelly (1989) 167 CLR 568 – applied.
Winch v Repatriation Commission (1999) 55 ALD 351 – cited.

COUNSEL:

BWJ Kidston for the appellant

M Fleming (Solicitor) for the respondents

SOLICITORS:

Donnelly & Associates for the appellant

John K Harris Solicitors for the respondents

  1. This is an application for leave to…

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AGLC
Poiner v Quirk [2007] QDC 299
Case
[2007] QDC 299
Decision Date

CaseChat Overview and Summary

The appeal was heard by Bennett, Anderson and Gordon JJA of the Supreme Court of Queensland. The respondent sought recovery of monies paid under a building contract from the appellant. The respondent's claim was for recovery of sums allegedly due in respect of prime cost items, provisional sums, and an undocumented variation. The appeal concerned the decision of the Commercial and Consumer Tribunal that found in favour of the respondent and ordered the appellant to pay the respondent $113,513.20. The issues before the court included whether the Tribunal erred in finding that the appellant was liable for prime cost items and provisional sums, and for the undocumented variation. The court also had to consider whether the Tribunal was correct to find that the appellant was liable to pay the respondent's costs of the appeal.

The court found that the Tribunal had erred in its calculation of the prime cost items and provisional sums, and that the amount owed was less than the Tribunal had ordered. The court held that the Tribunal had correctly found that the appellant was liable for the undocumented variation, as the statutory requirement for payment had not been met out. The court also found that there was no bias or breach of natural justice in the Tribunal's proceedings, as the Tribunal had given the parties notice of its intention to use evidence from a different matter and an opportunity to respond. The court held that there was no error of law or injustice in the Tribunal's procedural rulings.

The appeal was allowed in part, and the amount ordered to be paid by the appellant to the respondent was reduced from $113,513.20 to $95,467.04. The appeal was otherwise dismissed, and the appellant was ordered to pay the respondents' costs of the appeal to be assessed.

Orders

Orders of the court

Leave to appeal; appeal allowed in part, decision of the Tribunal varied by reducing the amount ordered to be paid by the appellant to the respondents from $113,513.20 to $95,467.04. Appeal otherwise dismissed. Order appellant to pay the respondents’ costs of the appeal to be assessed.

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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