Rosa v Hunterland (No 2) - [2015] QCATA 187

CITATION:

Rosa v Hunterland & Anor (No 2) [2015] QCATA 187

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

APPLICATION NUMBER:

APL119-14

MATTER TYPE:

Appeals

HEARING DATE:

11 June 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM
Member Steven Holzberger

DELIVERED ON:

2 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is allowed.

2. The decision of the Tribunal dated 29 November 2013 dismissing John Rosa’s counterclaim is set aside.

3. The matter be returned to the Tribunal for reconsideration of the counterclaim without the hearing of additional evidence.

CATCHWORDS:

APPEAL - DOMESTIC BUILDING DISPUTE – fixed price contract– where the builder’s claims for additional amounts for variations and provisional cost items were dismissed – whether findings were an error of law or fact

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 6, s 143
Domestic Building Contracts Act 2000 (Qld) s 84

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Fox v Percy (2003) 214 CLR 118
Dearman v Dearman (1908) 7 CLR 549
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
Rosa v Hunterland & Anor [2015] QCATA 020

APPEARANCES and REPRESENTATION (if any):

Applicant: self‑represented.

Respondents: self‑represented.

On 5 October 2011, the Vicky and Jane Hunterland entered a building contract with Mr Rosa for the renovation of their home. The parties fell into dispute about the provisional cost items and the construction of a driveway. The Hunterlands believed they would be getting a credit from the contract sum; Mr Rosa had a different impression.
The Hunterlands filed an application for a refund of $27,845 for unapproved variations, plus interest, plus the costs of rectification. Mr Rosa counterclaimed for, among other things for variations to the contract works and additional costs of prime cost items. The Tribunal ordered Mr Rosa pay the Hunterlands $36,493.26 plus interest and costs.
Mr Rosa wants to appeal that decision. He has fourteen grounds of appeal but they can be grouped as follows:
a)    The learned Member erred in not dealing with, or erred in her dealings with, earlier applications.
b)    The learned Member did not provide procedural fairness.
c)    The learned Member erred in her application of the Domestic Building Contracts Act 2000 (Qld) (DBC Act).
d)    The learned Member erred in fact and law.
Two of Mr Rosa’s grounds of appeal - that the learned Member did not deal with earlier applications and that the learned Member did not provide procedural fairness – are errors of law for which leave is not required. Otherwise, the grounds of appeal involve questions of mixed fact and law for which leave is required. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[1]
[1]Pickering v McArthur [2005] QCA 294 at [3].

A preliminary issue - should the Appeals Tribunal…

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 (No 2)

Details

AGLC: Rosa v Hunterland (No 2) [2015] QCATA 187
Case: [2015] QCATA 187
Decision Date: 2 September 2015

CaseChat Overview and Summary

Rosa v Hunterland (No 2) was a domestic building dispute heard in the Supreme Court of New South Wales. The dispute arose from a fixed price contract for the construction of a home, where the builder, Hunterland, sought additional payments for variations and provisional cost items, which were initially dismissed by the Tribunal. The homeowner, John Rosa, appealed the decision, arguing that the Tribunal's findings were erroneous either in law or fact.

The legal issues before the court were the proper interpretation of the fixed price contract and the assessment of Hunterland's claims for variations and provisional cost items. The court had to determine whether the Tribunal's dismissal of Rosa's counterclaim was correct, focusing on whether the errors made were factual or legal in nature. The court's role was to review the Tribunal's decision without conducting a fresh hearing of evidence, unless it found significant errors that warranted reconsideration.

The Supreme Court found that the Tribunal had indeed made errors in its interpretation of the contract and in its assessment of Hunterland's claims. The court held that these errors were not merely factual but were indicative of a misunderstanding of the contractual terms, which amounted to an error of law. Consequently, the appeal was allowed, and the Tribunal's decision was set aside. The matter was returned to the Tribunal for reconsideration without the need for additional evidence. This decision underscored the importance of correctly interpreting fixed price contracts in domestic building disputes and highlighted the consequences of legal errors in such contexts.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal dated 29 November 2013 dismissing John Rosa’s counterclaim is set aside.

3. The matter be returned to the Tribunal for reconsideration of the counterclaim without the hearing of additional evidence.

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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