Queensland Building Services Authority v Wyatt - [2002] QDC 326

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Wyatt [2002] QDC 326

PARTIES:

Queensland Building Services Authority (Appellant) and

Byron Wyatt (Respondent)

FILE NO/S:

D1192 of 2002

DIVISION:

District Court, Brisbane

PROCEEDING:

ORIGINATING COURT:

Queensland Building Tribunal

DELIVERED ON:

9 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2002

JUDGE:

Skoien SJDC

ORDER:

Appeal allowed in part.

CATCHWORDS:

Whether appeal from Building Tribunal a re-hearing in the traditional sense; category 1 and 2 defects; exercise of discretion.

COUNSEL:

P J Davis for the appellant

F G Forde for the respondent

SOLICITORS:

Atherton Lawyers for the respondent

This is an appeal from a decision of the Queensland Building Tribunal brought pursuant to s.92 of the Queensland Building Tribunal Act 2000 (“the QBT Act”).

The appellant is a statutory body incorporated under the provisions of the Queensland Building Services Authority Act 1991 (the “QBSA Act”) and the respondent is a builder who holds a licence under the QBSA Act.

On 16 August 2001, the appellant issued Direction to Rectify 22850 (“the DTR”) pursuant to s.72 of the QBSA Act. The DTR directed rectification of building work in five particulars, three of which are presently relevant and are set out in para [19] below.

A review of the DTR was sought pursuant to s.104 of the QBT Act and, as a result, four aspects of the DTR were challenged.

Over four days between 4 and 11 February 2002, the Queensland Building Tribunal (“the Tribunal”) heard the application for review by the respondent and on 27 February 2002 the Tribunal set aside the DTR in relation to all four defects.

The appellant appeals that decision pursuant to s.92 of the QBT Act but seeks the reinstatement only of the DTR in the three respects set out in para [13] below.

Nature of the Appeal

S.92 of the QBT Act relevantly provides:-

“92(1) A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal that finally decides matters the subject of the proceeding.

…..

(3) An appeal must –

(a) be accompanied by the tribunal’s decision and reasons for decision, if any; and

(b) refer to the tribunal’s decision and reasons for decision, if any, and any other relevant material and state the grounds for the application.

(4) The appeal is by way rehearing, unaffected by the tribunal’s decision, on the material before the tribunal and any further evidence allowed by the District Court.

…

(6) On an appeal, the District Court may do any of the following –

(a) confirm, annul, vary or reverse the tribunal’s decision; or

(b) remit the case to the tribunal for further hearing or rehearing; or

(b) make consequential or ancillary orders or directions.”

The first point to be decided is the nature of the appeal, the difficulty arising from the extraordinary insertion in subsection (4) of the phrase “unaffected by the tribunal’s decision”, a phrase which would seem to negate…

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: [2002] QDC 326
Decision Date: 09 December 2002

CaseChat Overview and Summary

In the District Court of Queensland, the Queensland Building Services Authority (QBSA) appealed a decision of the Queensland Building Tribunal (the Tribunal) to set aside a Direction to Rectify issued by the QBSA in respect of building work carried out by the respondent, Byron Wyatt. The Tribunal had set aside the Direction to Rectify in respect of four defects. The QBSA sought to have reinstated the Direction to Rectify in respect of three of those defects. The court found that the Tribunal had erred in setting aside the Direction to Rectify in respect of two of the three defects. The appeal was allowed in part. The court ordered that the respondent pay two-thirds of the costs of the appeal and one-half of the professional costs of the Authority and all of the witness expenses related to the issues under paragraphs 4 and 5 of the Direction to Rectify.

Orders