Sallur v Howse

[2014] QCATA 340

CITATION:

Sallur & Anor v Howse & Anor [2014] QCATA

340

PARTIES:

Karen Ann Sallur
Kenneth John Sallur

(Appellants)

v

Anthony Bruce Howse
Betty May Howse

(Respondents)

APPLICATION NUMBER:

APL310-14

MATTER TYPE:

Appeals

HEARING DATE:

24 November 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

Dr J R Forbes, Member

DELIVERED ON:

10 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1.	The application for leave to appeal is dismissed.
2.	The Applicants shall pay to the

Respondents, by way of their costs of

this application, the sum of $1,200.00.

CATCHWORDS:	APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – building dispute – contract for erection of kit shed – where defects in builder’s performance – whether owner failed
to mitigate damages - whether remedial costs
reasonable – whether evidence of those costs admissible – whether engineering experts qualified to estimate remedial costs – whether appellable error demonstrated – whether leave to appeal should be granted – where leave to
appeal refused
Queensland Building and Construction
Commission Act 1991 (Qld), s 77, Schedule 2
Queensland Civil and Administrative Tribunal
Act 2009 (Qld), s 3, s 4, s 7, s 100, s 142
Aon Risk Services Australia Limited v
Australian National University (2009) 239 CLR 175 Banco de Portugal v Waterlow [1932] AC 452 Bellgrove v Eldridge (1954) 90 CLR 613
Bonny Glen Pty Limited v Country Energy
[2009] NSWCA 26 Clark v Ryan (1960) 103 CLR 486 Fox v Percy (2003) 214 CLR 118
Fulcher & Ors v Knott Investments Pty Ltd &
Ors [2012] QSC 232
Lorca v Holt’s Corrosion Control Pty Ltd [1981]
Qd R 261
Luxer Holdings Pty Ltd v Glentham Pty Ltd
(2007) 35 WAR 254
Minister for Immigration and Citizenship v
SZMDS & Another (2010) 240 CLR 611 Payzu v Saunders [1919] 2 KB 581
Pinehurst Nominees Pty Ltd v Coeur de Lion
Investments Pty Ltd [2014] QSC 25
Rockdale City Council v Micro Developments
Pty Ltd [2008] Aust Torts Reports 81-954; [2008] NSWCA 128
Sacher Investments Pty Ltd v Forma Stereo
Consultants Pty Ltd [1976] 1 NSWLR 5
Secretary of State for Education and Science v
Tameside Metropolitan Borough Council [1977] AC 1014
Simonius Vischer & Co Ltd v Holt & Thompson
[1979] 2 NSWLR 322
St Vincent’s Hospital (Melbourne) Inc v
University of Adelaide [2002] VSC 297
Unity Insurance Brokers Pty Ltd v Rocco
Pezzano Pty Ltd (1998) 192 CLR 603 W (an infant) In Re [1971] AC 682
Watts v Rake (1960) 108 CLR 158

APPEARANCES:

APPLICANT:	Karen Ann Sallur and Kenneth John Sallur
RESPONDENT:	Anthony Bruce Howse and Betty May Howse
REPRESENTATIVES:
APPLICANT:	Karen Ann Sallur and Kenneth John Sallur represented by Mr N Jensen of Jensen & Co,
Toowoomba
RESPONDENT:	Anthony Bruce Howse and Betty May Howse represented by Mr M Wood of Edgar and Wood,
Dalby
REASONS FOR DECISION

SENIOR MEMBER KERRIE O’CALLAGHAN

[1]      I have had the advantage of reading the reasons of Dr J R Forbes, Member, and I agree with these reasons, and the orders he proposes.

DR JOHN FORBES, MEMBER

[2]      On or about 10 November 2010 the Respondents (“the Owner”) engaged

the Appellants (“the Builder”) to erect a “kit shed” on the Owner’s property

on the outskirts of Roma.

[3]      In or about April 2011 the Builder claimed $16,280 as payment for performing that task. The Owner declined to pay that amount, wholly or in part.

[4]      On 6 May 2014 the Builder commenced these proceedings for $16,280, together with filing fees, service fees and interest.

[5]      The Owner denied liability and counterclaimed $39,261.66, with costs.

[6]      On 27 June 2014 the Tribunal ordered the Builder to pay the Owner $9,210, arriving at that result by finding rectification costs of $25,489.33

and setting off that amount against the Builder’s claim of $16,280.

[7]      From that order the Builder seeks leave to appeal.[1] His application foreshadows these grounds: (i) That the Owner failed to mitigate damages; (ii) That the cost of rectification was estimated by persons not qualified to do so; and (iii) further and in the alternative to ground (ii), that the estimated rectification amount is excessive.

[1]

[8]      In submissions in support of this application the Builder seeks to add a fourth ground of appeal, to the effect that the owners, by their expert witness Wills, unreasonably excavated a footing or footings for the

purpose of preparing Wills’ report. In the absence of formal amendment

and re-service of a notice of appeal, the submissions in support of it should stay within the four corners of that document. However, as a matter of discretion, the Builder was allowed to raise this further ground.

[9]      As the third and fourth grounds of appeal require little discussion, it is convenient to examine them forthwith.

Ground (iii) The amount awarded for rectification is excessive

[10]     Assuming, without yet deciding, that the Owner’s evidence of quantum is

admissible, this ground is insubstantial. For cogent reasons[2] the learned

Member preferred the evidence of Mr Wills, the Owner’s’ expert, to that of the Builder’s, Mr Payne, and accepted Wills’ estimate of $25,489.33 as the

probable cost of rectification. While Payne disagrees with Wills on the issue of liability, he readily agrees that, if Wills is accepted on that point, his estimate of repair costs is reasonable.[3] Payne recognised that rectification of an existing building is usually very expensive,[4] and agreed that dismantling and re-assembling[5] of the subject shed would cost more than $25,489.[6] There was no other evidence of quantum. As the Member told the Builder: I have nothing from your side to say, `Well, [Wills and

Payne are] wrong. This is what it’s going to cost.’[7]

[2]

[3]

[4]

[5]

[6]

[7]

[11]     Counsel for the Builder refers to the High Court’s decision in Bellgrove v Eldridge.[8] That was a builder’s appeal against a decision that the only

acceptable remedy for defective work was to demolish the building and rebuild it according to the plans and specifications. In dismissing the appeal, the court observed:

As to what remedial work is both “necessary” and “reasonable” in any

particular case is a question of fact. But the question whether demolition ... is a reasonable method ... does not arise when defective foundations seriously threaten the stability of a house and the threat can only be removed by such a course.[9]

[8]

[9]

[12]     The remedies prescribed by Mr Wills are less drastic than those required in Bellgrove, but the failings he describes are serious - incorrect placing of piers, defective footings, inferior concrete, misplaced roof bracing tensioners, and the absence of one half of the specified roof and wall bracings. According to Wills, these defects, are likely to cause instability or increased lateral drift in windy conditions.[10] At the hearing Wills was pointedly asked whether high winds could cause the shed to take off. He replied: the main issue is that it may [word indistinct] or may lean over.[11] The absence of the indistinct word is unfortunate, but the context suggests that Wills did not rule out a structural collapse. On this evidence, which

she accepted, the learned Member found that Wills’ remedies were

appropriate. Expensive as they would be, they would, as Mr Payne

[10]

[11]

[12]13          See paragraph [9], above (Payne).

conceded, cost less than the Bellgrove solution.[12]

[13]     This proposed ground of appeal discloses no appellable error.

Ground (iv) Did excavation unreasonably increase the cost of rectification?

[14]     By exploratory excavation, or destructive examination (as Mr Payne put it) Wills discovered that a pier that should have been sunk to a depth of 1250mm was only 980mm in the ground, and that there and elsewhere the concrete used was sub-standard.13 Payne agreed that selective excavation was a proper procedure,[14] regretting that he did not resort to it himself.[15]

[14] 

[15] 

[15]    In the absence of any independent evidence to the contrary, this submission is untenable.

Ground (i) – Failure to mitigate?

[16]     In support of this submission, the Builder relies upon the Owner’s non-

acceptance of this offer by the Builder on 19 October 2011:

If we receive a cheque for $14,000 by 31 October 2011 we will come and rectify the shed bracing to plan specification and redo caps on two outside piers, even though in my opinion there is nothing wrong with them.

[17]     To which the Owner replied:

We wish to advise that we are waiting on quotes from builders to rectify faults on shed (as per Engineer’s report).[16] We will advise you on receipt of

them.[17]

[16] 

[17] 

[18]    An offer to rectify what is said to be perfect is curious, and less than reassuring. Besides, the offer is conditional upon immediate payment of most of the contract price, although the defects equivocally acknowledged are only some of those identified in the Wills report.[18] The Owner makes it clear that he is in the early stages of seeking independent advice.

[18] 

[19]     While there is no rule that an offer of rectification by the wrongdoer himself may be rejected out of hand,[19] the aggrieved party is entitled to consider the terms and circumstances in which such an offer is made.[20] The defects listed by Wills are numerous, and some are serious. They hardly inspire confidence that their author will set all wrongs right.

[19] 

[20]21 Ibid at 586 per McCardie J.

[20]     As the Builder’s own expert suggested, Roma is a small community, in

which it is not always easy to isolate personal from business relationships.21 The parties admitted at the hearing that their personal relationship is one of such cordial and mutual hostility that neither wishes to deal with the other again.[22] In a flight of rhetorical hyperbole, the Builder

declared: No, I don’t want to go back there. I might commit murder. Fifteen

years is not worth it, hey. The Builder’s counsel suggested that the

atmosphere was less bellicose when the October 2011 offer was made. But that is speculation; there is no evidence to indicate just when the incompatibility evidenced at the hearing came into being. After all, when the offer was written, the Owner was already complaining, and the

Builder’s invoice, almost six months old, was still unpaid.

[22] 

[21]     On an issue of mitigation the onus is upon the wrongdoer to satisfy the judge of fact that the aggrieved party did not take reasonable steps to minimise the damage.[23] That onus is not light; considering that the

allegation comes from a wrongdoer, the aggrieved party’s conduct should

not be examined very critically. As Lord Macmillan said in Banco de
Portugal v Waterlow:

When a sufferer from a breach of contract finds himself in consequence of that breach ... the measures which he may be driven to adopt to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. ... [H]e will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest other measures less burdensome to him might have been taken.[24]

[23] 

[24] 

[22]     Or more succinctly, when a plaintiff rebuts a defendant builder’s plea of

failure to mitigate:

[T]he standard [in rebuttal] is not a high one, since the defendant is a

[25] 

wrongdoer.[25]

[23]     The dicta in Banco de Portugal have been applied by the High Court, and in numerous decisions of State superior courts.[26] On a mitigation issue, reasonable conduct on the plaintiff’s part is purely a question of fact.[27] The

judge of fact is the primary tribunal, and it is not for an appeal tribunal to interfere with such a finding unless it is one that, on the evidence, no reasonable adjudicator could make. In my view that cannot fairly be argued in this case. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[28] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another

possible view.[29] The Member’s view that mitigation could not reasonably

be achieved by a return of the Builder to the scene of his mistakes is consonant with the Banco de Portugal doctrine, and views of the many courts that have adopted it. This ground discloses no appellable error.

[26] 

[27] 

[28] 

[29] 

Ground (ii) Was the evidence of rectification costs admissible?

[24]     While Messrs Payne and Wills disagreed on the need for rectification, they

did agree that, if it proceeded, it would cost no less than Wills’ estimate of

$25,489.33,[30] as meticulously detailed in his report. However, the Builder submits that this evidence is inadmissible, because Wills (a consultant engineer, assisted by a structural and geophysical engineer) and Mr Payne, a registered professional engineer and building certifier) are not qualified to estimate the cost of repairing the shed. This Clark v Ryan[31] point was not taken at the trial, and more pertinent, there is no evidence to

displace the experts’ clear representations that such evidence is in the

field of their professional training and experience. Mere assertions to the contrary by the Builder or his representative do not constitute such evidence, and it was certainly not incumbent upon the Member to decide, in some remarkable exercise of judicial notice, that the expertise of Wills

and Payne does not extend to estimating costs. Indeed, Wills’ carefully

detailed list of remedies suggests otherwise.

[30] 

[31] 

[25]     Counsel for the Builder submitted that the Member, of her own motion, in the absence of any countervailing evidence for the Builder, should have declared the available evidence unsatisfactory, and adjourned the hearing until better information was available. Precisely who was to obtain and pay for such evidence, and what profession would provide it, were not revealed. At a time when trial courts and tribunals are hard pressed, and expedition is encouraged in the interests of other litigants[32] and the public,[33] that is a courageous proposition, less attuned to the spirit of

modern civil litigation than to the procedural miasma of Dickens’ Jarndyce

v Jarndyce. The learned Member was entitled to accept the uncontradicted estimates of two engineers, absent any evidence that they were not qualified to tender them.

[32] 

[33]34 QCAT Act, s 3(b), s 4(b) and (c).

[26]     This is not a viable ground of appeal.

Limits of an application for leave

[27]     The legislative purpose of a leave-to-appeal provision is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error,

which, if left uncorrected, will result in substantial injustice. “Error” means

an error of law, or a finding of fact that is not merely debateable, but rationally indefensible. Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes answer that description.

[28]     An essential, but often misunderstood point is that an application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been (but was not) put before him or her.34 Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[35]

[35] 

[29]     It is not an appellable error to prefer one version of the facts, or one expert

opinion to another, or to give less weight to one party’s case than he

thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[36] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[37]

[36] 

[37] 

Conclusion

[30]     As no appellable error has been demonstrated, leave to appeal must be refused.

Costs

[31]     The Owner seeks an order for costs of this application. This is a minor commercial building dispute within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld),[38] which gives the Tribunal a costs discretion[39] in such cases, section 100 of the QCAT Act notwithstanding.[40] The Owner has obtained, and successfully defended, an award of $9,210. In the light of the Magistrates Court scale of professional costs in the $5,000-$10,000, category, the Builder should pay the Owner, by way of costs, the sum $1,200.

[38] 

[39] 

[40] 

ORDERS

1.      The application for leave to appeal is dismissed.

2.      The Applicants shall pay to the Respondents, by way of their costs of this application, the sum of $1,200.00.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s

142(3)(a)(i).

Decision dated 27 June 2014 paragraphs [21]-[32].

Transcript of hearing 23 June 2014 (Transcript) page 51 lines 1-2, 13.

Ibid page 66 line 13.

As suggested by the Builder: ibid page 62 line 21.

Ibid page 64 line 32 (Wills); page 64 line 36 (Payne: “significantly more”).

Ibid page 7 lines 24-25.

(1954) 90 CLR 613.

Ibid at [7].

Wills report pages 5, 6, 8, 9,11; Transcript page 49 lines 32-46.

Transcript page 50 lines 32-43.

Exhibit 4 page 4; Transcript page 49 lines 35-44.

Transcript page 56 line 32.

Ibid page 67 lines 14-17.

i.e an early report by the Building Services Authority, in October 2011.

Letter A B Howse to Builder 28 October 2011.

See paragraphs [11] and [13], above.

Payzu v Saunders [1919] 2 KB 581 at 589 per Scrutton LJ.

Transcript page 67 lines 1-2.

Ibid page 6 lines 30-43; page 65 lines 18-20.

Lorca v Holt’s Corrosion Control Pty Ltd [1981] Qd R 261; Watts v Rake (1960) 108

CLR 158 at 159; Pinehurst Nominees Pty Ltd v Coeur de Lion Investments Pty Ltd
[2014] QSC 25.

[1932] AC 452 at 506.

Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 at 9 per Yeldham J; cited with approval by the Court of Appeal in Rockdale City Council v Micro Developments Pty Ltd [2008] Aust Torts Reports 81-954; [2008] NSWCA 128 at [55].

E.g. Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 at [36]; Bonny Glen Pty Limited v Country Energy [2009] NSWCA 26 at [48]; Simonius

Vischer & Co Ltd v Holt & Thompson [1979] 2 NSWLR 322 at 355; St Vincent’s

Hospital (Melbourne) Inc v University of Adelaide [2002] VSC 297 at [35]; Luxer Holdings Pty Ltd v Glentham Pty Ltd (2007) 35 WAR 254 at [61]; Fulcher & Ors v Knott Investments Pty Ltd & Ors [2012] QSC 232 at [112].

Payzu v Saunders [1919] 2 KB 581 at 588, 589; Rockdale City Council v Micro Developments Pty Ltd, above at [55]; Luxer Holdings Pty Ltd v Glentham Pty Ltd, above, at [61].

Fox v Percy (2003) 214 CLR 118 at 125-126.

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.

Wills report page 15; Transcript page 51, lines 1-2, 13 (Payne).

(1960) 103 CLR 486.

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR
175 at [26]-[27].

Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd
[2012] QCATA 246 at [28].

Robinson v Corr [2011] QCATA 302 at [7].

Fox v Percy (2003) 214 CLR 118 at 125-126.

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.

Schedule 2.

Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)(h).

QCAT Act, s 7(2).