Rosa v Hunterland - [2015] QCATA 20

CITATION:

Rosa v Hunterland & Anor [2015] QCATA 20

PARTIES:	John Rosa (Applicant/Appellant)
v
Vicky Hunterland Jane Hunterland (Respondents)

APPLICATION NUMBER:

APL119-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice D Thomas, President
Acting Deputy President Stilgoe OAM

DELIVERED ON:

5 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The time for filing an application for leave to appeal or appeal is extended to 7 March 2014.

2. John Rosa must file and serve his submissions in support of the application for leave to appeal and appeal by 4:00pm on 19 February 2015.

3. Vicky Hunterland and Jane Hunterland must file and serve any submissions in reply by 4:00pm on 5 March 2015.

4. If John Rosa does not comply with direction 2 by the date specified, the application for leave to appeal or appeal is dismissed without further order of the Tribunal.

5. The application will be listed for a Directions Hearing on a date to be advised by the registry.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – EXTENSION OF TIME – where tribunal decision in early November – where reasons delivered late November – where application for leave to appeal filed March – where application to extend time – whether to grant extension of time

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309
Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

On 5 October 2011, the Hunterlands signed a building contract with Mr Rosa for the renovation of their flood affected home. The contract price was $260,744.
Despite a written building contract, the parties soon found themselves in conflict. On 31 July 2012, the Hunterlands filed an application for a refund of $27,845 for unapproved variations plus interest plus the costs of rectification.
After a hearing on 11 October 2013, the tribunal ordered that Mr Rosa pay the Hunterlands $36,493.26 plus interest and costs.
Mr Rosa filed an application for leave to appeal or appeal on 7 March 2014. He has also filed an application to extend the time in which to file the application for leave to appeal or appeal.
The tribunal may extend a time limit fixed for the start of a proceeding fixed by the QCAT Act[1], even if the time for complying with the relevant requirement has passed.[2] However, the tribunal cannot extend time if to do so would cause prejudice or detriment to a party to a proceeding, not able to be remedied by an appropriate order for costs or damages.[3]
[1]QCAT Act s 61(1)(a).
[2]QCAT Act s 61(2).
[3]QCAT Act s 61(3).
As the appeal tribunal has observed[4], consideration of whether or not an extension should be granted is a two-step process. Firstly, the appeal…

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.

Continue reading Rosa v Hunterland

Details

AGLC: Rosa v Hunterland [2015] QCATA 20
Case: [2015] QCATA 20
Decision Date: 5 February 2015

CaseChat Overview and Summary

In the matter of Rosa v Hunterland, the appellant, John Rosa, sought leave to appeal a decision made by a tribunal in a building dispute. The tribunal's decision was made in early November, with reasons delivered later in the same month. Rosa filed his application for leave to appeal in March, significantly beyond the standard time limit for such applications. Consequently, the respondents, Vicky Hunterland and Jane Hunterland, applied to dismiss the application for being out of time. The primary issue before the court was whether an extension of time should be granted for Rosa to file his application for leave to appeal.

The court considered the timeliness of Rosa's application and the reasons provided for the delay. Rosa argued that the delay was due to his difficulty in obtaining legal representation and the complexity of the case. The court weighed these arguments against the principle of finality and the importance of adhering to procedural timelines. It was noted that while the tribunal's reasons were delivered in late November, Rosa did not file his application until March, which was a substantial delay. The court acknowledged the difficulties Rosa faced but emphasised the need for strict adherence to procedural rules. Ultimately, the court found that an extension was warranted due to the extenuating circumstances presented by Rosa.

In light of the considerations above, the court granted an extension of time for Rosa to file his application for leave to appeal. The time for filing was extended to 7 March 2014, with specific deadlines set for the filing and service of submissions by both parties. The application was to be listed for a Directions Hearing at a later date. The court's decision recognised the importance of procedural fairness while maintaining the need for timely adherence to legal processes.

Orders

Orders of the court

1. The time for filing an application for leave to appeal or appeal is extended to 7 March 2014.

2. John Rosa must file and serve his submissions in support of the application for leave to appeal and appeal by 4:00pm on 19 February 2015.

3. Vicky Hunterland and Jane Hunterland must file and serve any submissions in reply by 4:00pm on 5 March 2015.

4. If John Rosa does not comply with direction 2 by the date specified, the application for leave to appeal or appeal is dismissed without further order of the Tribunal.

5. The application will be listed for a Directions Hearing on a date to be advised by the registry.

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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