DISTRICT COURT OF QUEENSLAND
CITATION:
Queensland Building Services Authority v Lazinski [2009] QDC 381
PARTIES:
QUEENSLAND BUILDING SERVICES AUTHORITY
Appellant
AND
JAN LAZINSKI
Respondent
FILE NO/S:
BD2985/09
DIVISION:
PROCEEDING:
Application for leave to appeal
ORIGINATING COURT:
Commercial and Consumer Tribunal
DELIVERED ON:
9 November 2009
DELIVERED AT:
Brisbane
HEARING DATE:
9 November 2009
JUDGE:
McGill DCJ
ORDER:
Leave to appeal refused with costs.
CATCHWORDS:
INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – appeal – whether appropriate to grant leave to appeal – relevant considerations
Commercial and Consumer Tribunal Act 2003 s 100(1)
Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Ltd [1998] QCA 351 – cited.
Clements v Flower [2005] QDC 50 – cited.
Poiner v Quirk [2007] QDC 299 – followed.
R v His Honour Judge Given; ex parte Builders Registration Board of Queensland [1985] 2 Qd R 32 – cited.
Walker v Davelin Homes Pty Ltd [2003] QCA 565 – applied.COUNSEL:
M. D. Evans for the appellant
M. Lazinski (solicitor) for the respondent
SOLICITORS:
This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal. On 23 September 2009 that Tribunal ordered that a decision of the appellant to issue to the respondent a direction to rectify defective building work pursuant to s 72 of the Queensland Building Services Authority Act be set aside and that the matter be remitted to the appellant to reconsider whether or not to issue a direction to rectify to the respondent or any other person.
The proceeding arose because the appellant had issued to the respondent a direction to rectify under s 72 of that Act and the respondent before me had appealed to the Tribunal against that direction. The Tribunal in those circumstances under s 104 of the Commercial and Consumer Tribunal Act 2003 was entitled to either confirm the decision then being reviewed, or set aside the decision and substitute another decision, or set aside the decision and return the matter to the state agency that made the decision with directions that the Tribunal considers appropriate.
The particular form of the order is a little curious in that on the face of it, it will be consistent with the order of the Tribunal for the appellant to issue a fresh direction to rectify to the respondent. The form of the direction suggests that it does not involve any final conclusion as to whether or not the respondent can be the subject of a direction to rectify.
Paragraph 49 of the reasons of the Tribunal explains this a little. In that paragraph the Tribunal Member said:
“I propose to return the matter to the authority for it to determine whether or not the respondent was in fact carrying on a business involving carrying out building work, and in the circumstances, whether to issue a fresh direction to rectify to the respondent. Any such direction should be limited to rectifying the leaking shower and the damage to the vanity unit caused by the leak.”
The…
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- Case
- [2009] QDC 381
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the QBS should be granted leave to appeal the decision of the CCT. In assessing this, the court considered various factors, including the significance of the decision, the likelihood of success on appeal, and whether the appeal would serve the interests of justice. The QBS argued that the CCT's decision was incorrect and that it had significant implications for the industry. Lazinski, on the other hand, contended that the QBS should not be granted leave to appeal, as the decision was correct and there was no compelling reason for the appeal to proceed.
The court, in its analysis, held that the decision of the CCT was well-reasoned and supported by the evidence presented. It found that the tribunal had properly considered the relevant statutory provisions and applied the correct legal principles. The court also noted that the QBS had not demonstrated a clear likelihood of success on appeal, and that the appeal was unlikely to serve the interests of justice. Consequently, the court ruled that the QBS should not be granted leave to appeal the decision of the CCT.
In conclusion, the court refused leave to appeal and ordered that the QBS pay costs associated with the appeal. This decision reinforces the importance of the tribunal's role in resolving disputes and underscores the high threshold that must be met for an appeal to be granted. The outcome also highlights the need for parties to carefully consider the merits and prospects of an appeal before proceeding with such applications.
Orders
Orders of the court
Leave to appeal refused with costs.
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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