Samjam Investments Pty Ltd v Chapman - [2022] QCATA 86

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Samjam Investments Pty Ltd v Chapman [2022] QCATA 86

PARTIES: SAMJAM INVESTMENTS PTY LTD

(applicant/appellant)

v

FRASER CHAPMAN

(respondent)

APPLICATION NO/S:

APL045-20

ORIGINATING APPLICATION NO/S:

BDL048-19

MATTER TYPE:

Appeals

DELIVERED ON:

22 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Senior Member Traves

ORDERS:

1. Leave to appeal is refused.

2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - PROCEDURE – QUEENSLAND – HEARING OF APPEAL – NON-APPEARANCE OF PARTIES – where applicant asserted denial of procedural fairness on the basis that the proceedings were determined in the absence of the applicant’s appearance at the hearing - – where grounds of appeal raise questions of fact and questions of mixed law and fact – consideration of whether to grant leave to appeal

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where tribunal found that building work was defective – whether evidence capable of supporting findings

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – consideration of ‘building work’ – whether construction of a cabin, in part at applicant’s premises and in part on site was building work – whether applicant was required to be licensed – where tribunal found applicant was not licensed and not entitled to undertake to perform building work or perform building work or receive remuneration for the performance of building work

Queensland Building and Construction Commission Act 1991 (Qld), s 42(1), s 42(3), s 42(4), s 42B, s 67WA, s 67WB(1)(b), s 67WC(1)(a), s 67WD(1)(a), s 67WE(1)(a), s 67WE(3), s 67WE(5)(b), s 75, Schedule 1A, s 8, s 8(1), s 8(2), Schedule 1B, s 1, s 4(1)(a), s 4(1)(c), s 4(2), s 4(8), s 4(10), s 7(1)(a), s 20(1)(a), s 21, s 22, s 23, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), Sch 1, s 27

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 138, s 142(1), s 142(3)(b), s 146, s 147(1), s 147(2), s 147(3)

Bellgrove v Eldridge (1954) 90 CLR 613
Cachia v Grech [2009] NSWCA 232
Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd)[2009] QCA 75
Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Harrison & Anor v Meehan [2017] QCA 315
Marshall & Anor v Marshall[1999] 1 Qd R 173
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330
Morton Engineering Co P/L v Stork Wescon Aust P/L & Santos Ltd (1999) 15 BCL 192
Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd [2000] 2 Qd R 148

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: [2022] QCATA 86
Decision Date: 22 June 2022

CaseChat Overview and Summary

In Samjam Investments Pty Ltd v Chapman, the Queensland Civil and Administrative Tribunal (QCAT) determined that Samjam Investments Pty Ltd (Samjam) was not entitled to payment for unlicensed building work performed under a contract with Mr Chapman for the construction of a transportable cabin. Samjam sought leave to appeal the QCAT's decision on the grounds that procedural fairness was denied due to the absence of Samjam at the original hearing. Additionally, Samjam argued that the QCAT erred in awarding damages for defective and incomplete work without expert opinion and that the evidence did not support the award of such damages.

The court considered whether to grant leave to appeal, focusing on the nature of the right to appeal and the procedural fairness issue. Given that Samjam was self-represented and the QCAT's mandate to proceed in an accessible and economical manner, the court found it appropriate to consider all the arguments presented by Samjam. The court also addressed the substantive issues raised in the appeal regarding the QCAT's findings on the unlicensed nature of the building work, its defectiveness, and the appropriateness of the damages awarded.

After reviewing the arguments and evidence, the court determined that the QCAT's findings were supported by the evidence and that the procedural fairness issue did not warrant interference with the QCAT's decision. The court concluded that Samjam was not entitled to damages for unlicensed building work and that Mr Chapman was entitled to recover certain costs and fees related to the incomplete and defective work. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Samjam appeals the decision in respect of Mr Chapman’s claim. Samjam does not appeal the decision dismissing the counter-application.The decision below The learned member found as follows:(a)Mr Chapman and Samjam entered into a contract for the construction and delivery of a transportable, self-contained cabin;(b)The contract price was $170,000.00;(c)The contract related to the performance of building work within s 75 of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act’);(d)Samjam performed unlicensed building work in contravention of the QBCC Act and as a result was not entitled to payment for the building work it carried out;(e)While Samjam may have been entitled to claim reasonable remuneration for performing the building work the onus was upon Samjam to make such a claim;(f)The evidence did not support a claim by Samjam for any amount of reasonable remuneration pursuant to s 42(4) of the QBCC Act;(g)Mr Chapman was entitled to recover from Samjam $2,500.00 paid by Mr Chapman to Samjam whether as an overpayment of the sale price of $170,000.00 or a payment for cabin upgrades;(h)In the absence of a specified completion date in the contract, it was necessary to imply a term that the building work would be supplied within a reasonable period;(i)The cabin was supplied by Samjam to Mr Chapman within a reasonable period;(j)It was not a term of the contract that the cabin, as delivered by Samjam, would be fit for habitation;(k)Mr Chapman was not entitled to recover any amount for rent paid by him during the period the cabin was not habitable;(l)Mr Chapman was entitled to recover the costs associated with rectification and completion work totalling $13,027.52 comprising:(i) Replacement of non-compliant glass - $4,950.00(ii) Rectification of painting and staining - $4,928.00(iii) Rectification of carpentry work - $1,428.52(iv) Electrical works - $1,721.00(m)Mr Chapman was entitled to recover the filing fees paid in respect of the originating application. The grounds of appeal The single ground of appeal in the application for leave to appeal, or appeal, is expressed in somewhat diffuse terms and is essentially a recitation of the circumstances surrounding Samjam’s failure to attend the original Tribunal hearing. Samjam states: ‘We simply ask for the chance we would have had.’ The ground of appeal asserts no specific error by the learned member in the decision below. Samjam expands upon the ground of appeal in its appeal submissions, asserting the following errors by the Tribunal at first instance:(a)Samjam was not afforded procedural fairness as a result of not being provided with correct details about the date of the hearing;(b)In the absence of expert opinion in support of Mr Chapman’s claim for defective and incomplete building work the Tribunal should not have awarded damages;(c)The evidence otherwise did not support the award of damages for defective and incomplete work; The matters raised in the appeal submissions go well beyond the single ground of appeal. Samjam has not applied to amend its grounds of appeal. Having said this, a self-represented party in Tribunal proceedings cannot be expected to conduct a case with the same degree of skill as would a legal practitioner. The Tribunal must deal with matters in a way that is accessible, fair, just, economical and quick, and must act in a way that is informal and minimises costs to the parties.[1] The Tribunal must also act with as little formality or technicality and with as much speed as the requirements of the QCAT Act or an enabling Act and a proper consideration of the matters before the Tribunal permit.[2] Mr Chapman has raised no objection to Samjam’s expanded grounds of appeal and has had the opportunity to respond to Samjam’s submissions. We perceive no disadvantage to Mr Chapman in the Appeal Tribunal proceeding to consider all the matters raised in Samjam’s submissions. [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 3(b), s 4(c), [2]QCAT Act, s 28(3).Appeals – the statutory framework

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Samjam Investments Pty Ltd v Chapman [2022] QCATA 86
PARTIES:	SAMJAM INVESTMENTS PTY LTD
(applicant/appellant)
v
FRASER CHAPMAN
(respondent)
APPLICATION NO/S:	APL045-20
ORIGINATING APPLICATION NO/S:	BDL048-19
MATTER TYPE:	Appeals
DELIVERED ON:	22 June 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown Senior Member Traves
ORDERS:	1. Leave to appeal is refused. 2. The appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - PROCEDURE – QUEENSLAND – HEARING OF APPEAL – NON-APPEARANCE OF PARTIES – where applicant asserted denial of procedural fairness on the basis that the proceedings were determined in the absence of the applicant’s appearance at the hearing - – where grounds of appeal raise questions of fact and questions of mixed law and fact – consideration of whether to grant leave to appeal APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where tribunal found that building work was defective – whether evidence capable of supporting findings CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – consideration of ‘building work’ – whether construction of a cabin, in part at applicant’s premises and in part on site was building work – whether applicant was required to be licensed – where tribunal found applicant was not licensed and not entitled to undertake to perform building work or perform building work or receive remuneration for the performance of building work Queensland Building and Construction Commission Act 1991 (Qld), s 42(1), s 42(3), s 42(4), s 42B, s 67WA, s 67WB(1)(b), s 67WC(1)(a), s 67WD(1)(a), s 67WE(1)(a), s 67WE(3), s 67WE(5)(b), s 75, Schedule 1A, s 8, s 8(1), s 8(2), Schedule 1B, s 1, s 4(1)(a), s 4(1)(c), s 4(2), s 4(8), s 4(10), s 7(1)(a), s 20(1)(a), s 21, s 22, s 23, Schedule 2 Queensland Building and Construction Commission Regulation 2018 (Qld), Sch 1, s 27 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 138, s 142(1), s 142(3)(b), s 146, s 147(1), s 147(2), s 147(3) Bellgrove v Eldridge (1954) 90 CLR 613 Cachia v Grech [2009] NSWCA 232 Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd)[2009] QCA 75 Ericson v Queensland Building Services Authority [2013] QCA 391 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Harrison & Anor v Meehan [2017] QCA 315 Marshall & Anor v Marshall[1999] 1 Qd R 173 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330 Morton Engineering Co P/L v Stork Wescon Aust P/L & Santos Ltd (1999) 15 BCL 192 Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd [2000] 2 Qd R 148