Sovereign Homes Qld Pty Ltd v Edwards - [2016] QCAT 461

CITATION:

Sovereign Homes Qld Pty Ltd v Edwards [2016] QCAT 461

PARTIES:	Sovereign Homes Qld Pty Ltd (Applicant)
v
Donald Bruce Edwards (Respondent)

APPLICATION NUMBER:

BDL253-15

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

6 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for miscellaneous matters filed 16 June 2016 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - OTHER MATTERS - TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - PARTICULAR CASES – BUSINESS ACTIVITIES – where building contact – where builder filed claim for payment of final instalment – where homeowner counterclaimed – where counterclaim included pleading of Australian Consumer Law – where builder applied to strike out references to Australian Consumer Law on the basis the tribunal lacked jurisdiction

EVIDENCE – ADMISSIBILITY – EXCLUSIONS:PRIVILEGE – PUBLIC INTEREST PRIVILEGE – SETTLEMENT NEGOTIATIONS – where respondent referred to, and exhibited, ‘without prejudice’ correspondence – where applicant applied to strike out references and evidence – whether documents protected by public interest privilege

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), 28(3)(a), 28(3)(d), s 62, Schedule 3
Queensland Building and Construction Commission Act 1991 (Qld) Schedule 2
Domestic Building Contracts Act 1995 (Vic) s 124A

Delab Construction Service Pty Ltd v Olivares t/as Matador Tapas Bar [2013] QCAT 723 (distinguished)
Field v Commissioner for Railways for New South Wales (1957) 99 285 CLR (applied)
Harrington v Lowe (1996) 190 CLR 311 (applied)
Lauer & Ng v Corner [2015] NSWCATCD 114 (distinguished)
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd [2001] 1 Qd R 276 (applied)

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

In June 2014, Sovereign Homes Qld Pty Ltd and Donald Edwards signed a contract for additions and renovations to Mr Edwards’ home. Sovereign carried out the work and issued a notice of practical completion on 11 December 2014. Mr Edwards accepted practical completion but there were matters requiring rectification. The notorious Brisbane storm of November 2014 complicated matters, as some ‘rectification’ was, in fact, repair of storm damage.
Sovereign formed a view that it had completed its work and called for final payment. Mr Edwards formed the view that some work was outstanding. Sovereign brought the dispute to the tribunal.
In his response and counterclaim, Mr Edwards has repeatedly referred to principles contained within Schedule 2 of the Competition and Consumer Act 2010 (Cth) [the Australian Consumer Law (Queensland)]. Sovereign has applied to strike out those references or, if the references remain, to transfer the dispute to a court of competent jurisdiction.

Some comments about the nature of the response and counterclaim

Mr Edwards’ response, counterclaim and submissions are a…

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: [2016] QCAT 461
Decision Date: 6 December 2016

CaseChat Overview and Summary

Sovereign Homes Queensland Pty Ltd filed a claim against Ms. Edwards for the payment of a final instalment under a building contract. In her defence, Ms. Edwards counterclaimed, alleging that the company's conduct constituted misleading or deceptive conduct under the Australian Consumer Law. The company subsequently sought to have the counterclaim struck out, contending that the Queensland Civil and Administrative Tribunal lacked the jurisdiction to hear matters concerning the Australian Consumer Law. The central legal issues were whether the tribunal had the authority to adjudicate on claims under the Australian Consumer Law and whether certain evidence, including 'without prejudice' correspondence, was admissible.

The tribunal dismissed the application to strike out the Australian Consumer Law claims, ruling that it indeed possessed the jurisdiction to hear such matters. The tribunal also found that the 'without prejudice' correspondence was not protected by public interest privilege, allowing it to be considered in the proceedings. The tribunal's reasoning was based on the broad interpretation of its jurisdictional powers under the Queensland legislation and the specific criteria for public interest privilege, which did not extend to the correspondence in question.

The outcome of the case was that the application for miscellaneous matters, including the attempt to strike out references to the Australian Consumer Law and the 'without prejudice' correspondence, was dismissed. This decision affirmed the tribunal's jurisdiction over consumer protection claims and clarified the scope of public interest privilege in the context of the proceedings. No further orders were made beyond the dismissal of the application for miscellaneous matters.

Orders

Orders of the court

1. The application for miscellaneous matters filed 16 June 2016 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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