Sottovia v Roos - [2016] QCATA 189

CITATION:

Sottovia & anor v Roos [2016] QCATA 189

PARTIES:	Tiziano Sottovia Nicole Brigg (Applicants/Appellants)
v
Simon Roos (Respondent)

APPLICATION NUMBER:

APL183-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 12 May 2016 is set aside.

4. Claim MCDO1276/15 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ESTOPPEL – ESTOPPEL BY JUDGMENT – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL – IDENTITY OF CAUSE OF ACTION – where claim in building jurisdiction for compensation for defective work – where no response filed – where application for decision by default and unliquidated damages – where builder later filed claim for minor debt – whether builder estopped from making claim – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – ESTOPPEL – ESTOPPEL BY JUDGMENT – ANSHUN ESTOPPEL - where claim in building jurisdiction for compensation for defective work – where no response filed – where application for decision by default and unliquidated damages – where builder later filed claim for minor debt – whether builder estopped from making claim – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5)

Jackson v Goldsmith (1950) 81 CLR 589
Kok Hoong v Leong Cheong Kweng Mines Ltd[1964] AC 993
Pickering v McArthur [2005] QCA 294
Pope v Evans[1968] 3 WLR 97

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Simon Roos agreed to build a retaining wall for Tiziano Sottovia and Nicole Brigg (‘the homeowners’). In December 2014, the homeowners filed an application in the building jurisdiction of the tribunal, claiming a refund of all money they paid to Mr Roos. They claimed that Mr Roos’ building work was defective.
Mr Roos did not file a response to the homeowners’ application. The homeowners requested a decision by default. By order dated 22 January 2015, the tribunal ordered Mr Roos pay the homeowners $9,661.00.
On 16 June 2016, Mr Roos filed a minor debt application for the money the homeowners allegedly owed under the contract. The homeowners referred the tribunal to the previous proceeding and repeated their assertions that the work was defective. Despite this, the tribunal ordered the homeowners pay Mr Roos $7,271.00.
The homeowners want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The homeowners say that the…

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 Sottovia v Roos

Details

AGLC: Sottovia v Roos [2016] QCATA 189
Case: [2016] QCATA 189
Decision Date: 2 December 2016

CaseChat Overview and Summary

In the matter of Sottovia v Roos, the dispute centred around a claim for compensation for defective work within the building jurisdiction. The applicant, Sottovia, sought compensation for defects in construction work performed by the respondent, Roos. After no response was filed to the claim, Sottovia applied for a decision by default and unliquidated damages. Subsequently, Roos filed a minor debt claim, prompting Sottovia to argue that Roos was estopped from pursuing this subsequent claim. The court was required to determine whether Roos was estopped from making the minor debt claim, and whether there were grounds for leave to appeal.

The legal issues before the court involved the application of estoppel by judgment, specifically whether the doctrine of res judicata or cause of action estoppel applied to bar Roos from making the minor debt claim. The court needed to establish whether there was an identity of cause of action between the two claims and if Roos's actions constituted an estoppel by judgment. The court also had to consider whether Anshun estoppel applied, preventing Roos from pursuing a claim that was inconsistent with a prior judgment.

The court found that the identity of cause of action was present, and the subsequent minor debt claim was inconsistent with the prior judgment in favour of Sottovia. The court held that Roos was estopped from pursuing the minor debt claim due to the principles of res judicata and cause of action estoppel. The court also found that Anshun estoppel applied, as the prior judgment had a direct and substantial connection to the subsequent minor debt claim. Consequently, the court granted leave to appeal, allowed the appeal, set aside the decision of 12 May 2016, and dismissed the claim MCDO1276/15.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 12 May 2016 is set aside.

4. Claim MCDO1276/15 is dismissed.

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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