Richards v Dwyer Corporation P/L - [2004] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

Richards v Dwyer Corporation P/L [2004] QCA 94

PARTIES:

KEVIN FREDERICK RICHARDS
(appellant/applicant)
v
DWYER CORPORATION PTY LTD ACN 010 839 139
(respondent/respondent)

FILE NO/S:

Appeal No 10712 of 2003
DC No 97 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

1 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2004

JUDGES:

McMurdo P, McPherson JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Treat the notice of appeal filed on 25 November 2003 as an application for leave to appeal, making any necessary extension of time in which to file such an application

2. Dismiss the application for leave to appeal with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where notice of appeal filed from decision of District Court judge on appeal from Queensland Building Tribunal – where appeal related to $8,800 held in Building Tribunal's trust account pursuant to settlement agreement – whether party required to make application seeking leave to appeal

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where dispute over building contract settled by way of settlement agreement – whether parties also had to comply with implied conditions of original contract to fulfil settlement agreement – whether parties were attempting to contract out of statutory obligations under the Building Act through settlement agreement – whether builder had to have issued certificate of approval from local authority under Building Act to be entitled to release of funds from Building Tribunal trust account pursuant to compliance with settlement agreement

Building Act 1975 (Qld), s 4
District Court of Queensland Act 1967 (Qld), s 118
Standard Building Regulation 1993 (Qld), Part 8

Praxis Pty Ltd v Hewbridge Pty Ltd & Anor [2004] QCA 79; Appeal No 547 of 2004, 26 March 2004

COUNSEL:

M Morrisey for the applicant
W Dwyer (director of the respondent company), with leave, for the respondent

SOLICITORS:

The applicant appeared on his own behalf
W Dwyer (director of the respondent company), with leave, for the respondent

THE PRESIDENT: On 30 October 2003 a District Court Judge dismissed an appeal from a decision of the Queensland Building Tribunal ("the Tribunal") given on 17 December 2002 ordering that money in the trust account of the Tribunal be dispersed as to $8,800 to Kevin Frederick Richards ("Richards") and as to $1,200 to Dwyer Corporation Pty Ltd ("Dwyer").

Richards lodged a notice of appeal from the decision of the District Court Judge. The appellant's outline of argument contends that an appeal lies under s 118(2)(b) District CourtAct 1967 (Qld). That section provides:

"A party who is dissatisfied with a final judgment of the District Court…

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: [2004] QCA 94
Decision Date: 1 April 2004

CaseChat Overview and Summary

In Richards v Dwyer Corporation P/L, the Court of Appeal was called upon to determine the procedural and substantive issues arising from a dispute over a building contract. The primary issue was whether the appellant was required to seek leave of the court before filing an appeal against a decision of the District Court that itself was an appeal from a decision of the Queensland Building Tribunal. Additionally, the court had to decide whether the settlement agreement between the parties also required compliance with the implied conditions of the original building contract and whether the builder had to obtain a certificate of approval from the local authority under the Building Act before being entitled to the release of funds held in the Building Tribunal's trust account.

The court found that the appellant's notice of appeal needed to be treated as an application for leave to appeal, as the procedural requirement of seeking leave to appeal had not been satisfied. The court also held that the settlement agreement did not relieve the parties of their obligations under the implied conditions of the original contract, and therefore, compliance with those conditions was still necessary. Furthermore, the court determined that the builder had to have obtained the certificate of approval from the local authority as per the Building Act to be entitled to the release of funds from the Building Tribunal trust account. The application for leave to appeal was dismissed with costs to be assessed.

Orders

Orders of the court

1. Treat the notice of appeal filed on 25 November 2003 as an application for leave to appeal, making any necessary extension of time in which to file such an application

2. Dismiss the application for leave to appeal with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Richards v Dwyer Corporation P/L [2004] QCA 94
PARTIES:	KEVIN FREDERICK RICHARDS (appellant/applicant) v DWYER CORPORATION PTY LTD ACN 010 839 139 (respondent/respondent)
FILE NO/S:	Appeal No 10712 of 2003 DC No 97 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	1 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2004
JUDGES:	McMurdo P, McPherson JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Treat the notice of appeal filed on 25 November 2003 as an application for leave to appeal, making any necessary extension of time in which to file such an application 2. Dismiss the application for leave to appeal with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where notice of appeal filed from decision of District Court judge on appeal from Queensland Building Tribunal – where appeal related to $8,800 held in Building Tribunal's trust account pursuant to settlement agreement – whether party required to make application seeking leave to appeal CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where dispute over building contract settled by way of settlement agreement – whether parties also had to comply with implied conditions of original contract to fulfil settlement agreement – whether parties were attempting to contract out of statutory obligations under the Building Act through settlement agreement – whether builder had to have issued certificate of approval from local authority under Building Act to be entitled to release of funds from Building Tribunal trust account pursuant to compliance with settlement agreement Building Act 1975 (Qld), s 4 District Court of Queensland Act 1967 (Qld), s 118 Standard Building Regulation 1993 (Qld), Part 8 Praxis Pty Ltd v Hewbridge Pty Ltd & Anor [2004] QCA 79; Appeal No 547 of 2004, 26 March 2004
COUNSEL:	M Morrisey for the applicant W Dwyer (director of the respondent company), with leave, for the respondent
SOLICITORS:	The applicant appeared on his own behalf W Dwyer (director of the respondent company), with leave, for the respondent