| 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: |
|
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 613Bonny Glen Pty Limited v Country Energy [2009] NSWCA 26
Clark v Ryan (1960) 103 CLR 486
Fox v Percy (2003) 214 CLR 118Fulcher & 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 581Pinehurst 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 128Sacher 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 1014Simonius 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 682Watts 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…
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Details
- AGLC
- Sallur v Howse [2014] QCATA 340
- Case
- [2014] QCATA 340
- Decision Date
CaseChat Overview and Summary
The applicants, Sallur, sought leave to appeal a decision from a lower court that found them liable for the cost of rectifying defects in a kit shed they had built under contract. The respondents, Howse, were the homeowners who had entered into the contract with the applicants for the construction of the kit shed. The dispute was heard and determined in the Supreme Court of New South Wales. The applicants argued that the lower court had erred in various respects, including its assessment of whether they were liable for the defects, whether the respondents had failed to mitigate their damages, the reasonableness of the remedial costs claimed, the admissibility of evidence concerning those costs, the qualifications of the engineering experts who estimated the remedial costs, and the demonstration of an error warranting an appeal.
The legal issues before the court were primarily concerned with the criteria for granting leave to appeal and the assessment of the lower court's findings. The applicants contended that the lower court had made several errors in its assessment of liability, mitigation, and the admissibility of expert evidence, which warranted an appeal. The court had to determine whether these alleged errors amounted to an appellable error, which is a legal error that could potentially have affected the outcome of the case. The court also considered whether the evidence presented by the respondents regarding the remedial costs was admissible and whether the experts were qualified to provide their opinions.
In dismissing the application for leave to appeal, the court found that the applicants had not demonstrated that the lower court had made any errors that warranted an appeal. The court held that the lower court's findings regarding liability, mitigation, and the admissibility of evidence were all well-reasoned and supported by the evidence. The court also found that the respondents' experts were qualified to provide their opinions on the remedial costs, and their evidence was properly admitted. The court concluded that the applicants had not satisfied the criteria for leave to appeal, and therefore, the application was dismissed. In addition, the applicants were ordered to pay the respondents' costs of the application in the sum of $1,200.00.
The legal issues before the court were primarily concerned with the criteria for granting leave to appeal and the assessment of the lower court's findings. The applicants contended that the lower court had made several errors in its assessment of liability, mitigation, and the admissibility of expert evidence, which warranted an appeal. The court had to determine whether these alleged errors amounted to an appellable error, which is a legal error that could potentially have affected the outcome of the case. The court also considered whether the evidence presented by the respondents regarding the remedial costs was admissible and whether the experts were qualified to provide their opinions.
In dismissing the application for leave to appeal, the court found that the applicants had not demonstrated that the lower court had made any errors that warranted an appeal. The court held that the lower court's findings regarding liability, mitigation, and the admissibility of evidence were all well-reasoned and supported by the evidence. The court also found that the respondents' experts were qualified to provide their opinions on the remedial costs, and their evidence was properly admitted. The court concluded that the applicants had not satisfied the criteria for leave to appeal, and therefore, the application was dismissed. In addition, the applicants were ordered to pay the respondents' costs of the application in the sum of $1,200.00.
Orders
Orders of the court
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.
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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