Salam v Henley Properties (Qld) Pty Ltd - [2015] QCATA 118

CITATION:

Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118

PARTIES:	Muhammad Salam Seowmee Salam (Applicant/Appellant)
v
Henley Properties (QLD) Pty Ltd (Respondent)

APPLICATION NUMBER:

APL429-14

MATTER TYPE:

Appeals

HEARING DATE:

29 April 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Deane

DELIVERED ON:

11 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Appeal is allowed.

2. The decision of 3 September 2014 is set aside.

3. The decision of 1 May 2015 as to costs is set aside.

4. The matters are remitted to the Tribunal for determination according to law.

5. The proceedings, BDL122-13, is to be listed for a directions hearing on a date to be advised.

6. Muhammad Salam and Seowmee Salam are to file in the Tribunal two (2) copies and provide to Henley Properties (QLD) Pty Ltd one (1) copy of any application for costs of the appeal including evidence as to costs and submissions by 4:00pm on 8 September 2015.

7. If any application for costs is made in accordance with order 6:

a. Henley Properties (QLD) Pty Ltd is to file in the Tribunal two (2) copies and provide to Muhammad Salam and Seowmee Salam one (1) copy of any submissions and evidence in response by 4:00pm on 29 September 2015.

b. the application for costs will be determined on the papers unless a party requests an oral hearing not before 29 September 2015.

8. If no application for costs is made in accordance with order 6 then each party is to bear its own costs of this appeal.

CATCHWORDS:

APPEALS – DOMESTIC BUILDING DISPUTE - whether claim under section 84 of the Domestic Building Contracts Act 2000 (Qld) for non-compliant variations ought to have been allowed – whether failure to afford natural justice where application made after close of evidence – whether builder required to make application – whether late application was an application to amend - whether builder would suffer unreasonable hardship – whether unreasonable hardship equates to concepts of unfairness – whether reasons inadequate

Domestic Building Contracts Act 2000 (Qld), s 84
Queensland Civil and Administrative Tribunal Act (Qld) 2009 ss3, 28, 33, 64, 142, 146, 147

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Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Ricchetti v Lanbuilt Pty Ltd [2011] QCATA 266
Commissioner for Children and Young…

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: [2015] QCATA 118
Decision Date: 11 August 2015

CaseChat Overview and Summary

In the case of Salam v Henley Properties (Qld) Pty Ltd, the appellants, Muhammad Salam and Seowmee Salam, sought to appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) regarding a dispute under the Domestic Building Contracts Act 2000 (Qld). The appellants claimed that the builder, Henley Properties (Qld) Pty Ltd, had failed to comply with the Act by not providing compliant variations, and that the Tribunal had erred in not allowing their claim under section 84 of the Act. Additionally, the appellants argued that the Tribunal had failed to afford them natural justice when it allowed an application made by the builder after the close of evidence. The dispute centred on whether the Tribunal had correctly applied the law in allowing the builder's late application, whether the builder was required to make an application, and whether the late application constituted an application to amend. Furthermore, the appellants contended that the Tribunal's reasons for its decision were inadequate.

The court was required to decide several key legal issues. Firstly, it had to determine whether the claim under section 84 of the Domestic Building Contracts Act 2000 (Qld) for non-compliant variations should have been allowed. Secondly, the court needed to examine whether the failure to afford natural justice, where the application was made after the close of evidence, warranted a different outcome. Thirdly, it had to consider whether the builder was required to make an application under the circumstances, and whether the late application was an application to amend. Fourthly, the court needed to assess whether the builder would suffer unreasonable hardship if the appeal was not allowed, and whether such hardship equated to concepts of unfairness. Lastly, the court had to evaluate whether the reasons provided by the Tribunal were adequate.

The court found that the Tribunal had erred in law by not allowing the appellants' claim under section 84 of the Act. It concluded that the Tribunal's failure to afford natural justice, by allowing the builder's application after the close of evidence, was a significant error. The court held that the builder was not required to make an application, and that the late application did not constitute an application to amend. Additionally, the court found that the Tribunal's reasons were inadequate and did not adequately address the legal issues. Consequently, the appeal was allowed, the decision of 3 September 2014 was set aside, and the decision of 1 May 2015 as to costs was also set aside. The matters were remitted to the Tribunal for determination according to law. The court further ordered that the proceedings be listed for a directions hearing and set out detailed procedures for any application for costs of the appeal.

Orders

Orders of the court

1. The Appeal is allowed.

2. The decision of 3 September 2014 is set aside.

3. The decision of 1 May 2015 as to costs is set aside.

4. The matters are remitted to the Tribunal for determination according to law.

5. The proceedings, BDL122-13, is to be listed for a directions hearing on a date to be advised.

7. If any application for costs is made in accordance with order 6:

b. the application for costs will be determined on the papers unless a party requests an oral hearing not before 29 September 2015.

8. If no application for costs is made in accordance with order 6 then each party is to bear its own costs of this appeal.

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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