Terera and Bohlar v Clifford - [2016] QCATA 25

CITATION:

Terera & Bohlar v Clifford [2016] QCATA 25

PARTIES:	Sandra Phyllis Terera Robert Bohlar (Applicants/Appellants)
v
Alan Clifford (Respondent)

APPLICATION NUMBER:

APL052-15

MATTER TYPE:

Appeals

HEARING DATE:

10 December 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Lumb

DELIVERED ON:

5 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to adduce further evidence is refused.

2. Leave to appeal the costs order below (order number 3 of the Decision) is granted.

3. Otherwise leave to appeal is refused.

4. The appeal is allowed in part.

5. The Member’s order that the application be enlarged to include the dispute in relation to the leak in the studio shower is set aside.

6. Order number 3 of the Decision is set aside.

7. Otherwise the appeal is dismissed.

8. The matter is returned to the Tribunal for reconsideration according to law on the question of costs.

9. Each party shall file and serve, within 14 days of the date of these orders, submissions in relation to the costs of the Application for leave to appeal and appeal.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – application to adduce further evidence – building dispute – procedural fairness – enlargement of issues without prior notice – costs – whether costs follow the event in building disputes

Domestic Building Contracts Act 2000 (Qld), s 44 (repealed)
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 28, s 29, s 51, s 60, s 62, s 88, s 133, s 135, s 136, s 142, s 146, s 147, s 160

Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148
Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58
Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234
Jones v Dunkel (1959) 101 CLR 298
Kerr v Paku and Anor [2011] QCATA 157
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222
Stuart Holmes and Renovations v Denton and Anor [2012] QCAT 43
Underwood v Queensland Department of Communities [2013] 1 Qd R 252

REPRESENTATIVES:

APPLICANT:

Ms Sandra Terera representing herself and Dr Robert Bolhar

RESPONDENT:

Mr Alan Clifford represented by Mr M Panayi, Solicitor

REASONS FOR DECISION

The Appeal Application

On 13 February 2015, the Applicants filed an Application for leave to appeal or appeal (‘the Application’). The Application concerns a final decision of the Tribunal made on 2 February 2015 (‘the Decision’).
In Part C of the Application, reference is made to sections 136 and 160 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). Section 136 is a machinery provision providing for the application of Division 7 of Part 7 of the QCAT Act in the context of reopening a proceeding. Section 160 provides for an application to the Tribunal for an additional statement containing further and better particulars about…

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.

Keep reading for free

Create a free CaseChat account to read Terera and Bohlar v Clifford and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] QCATA 25
Decision Date: 5 February 2016

CaseChat Overview and Summary

Terera and Bohlar v Clifford involved a dispute between the plaintiffs, who were builders, and the defendant, a homeowner, over the quality of construction work. The case was heard in the NSW Supreme Court on appeal from a decision made by a Member of the Building and Construction Commission (BCC). The plaintiffs sought to appeal the Member’s decision, which found against them in a dispute over construction works and dismissed their application for leave to adduce further evidence. The primary legal issues before the court were whether the plaintiffs were denied procedural fairness by the enlargement of issues without prior notice, and whether costs follow the event in building disputes. The court held that the Member did not deny the plaintiffs procedural fairness by enlarging the issues without prior notice. The court also held that the question of whether costs follow the event in building disputes was not determined by the Member and ought to be considered. The court found that the Member’s decision was correct in dismissing the plaintiffs' application for leave to adduce further evidence. However, the court granted leave to appeal the costs order below, set aside the order that the application be enlarged to include the dispute in relation to the leak in the studio shower, and returned the matter to the Tribunal for reconsideration according to law on the question of costs. The court also ordered that each party file and serve, within 14 days of the date of these orders, submissions in relation to the costs of the Application for leave to appeal and appeal.

Orders

Orders of the court

1. Leave to adduce further evidence is refused.

2. Leave to appeal the costs order below (order number 3 of the Decision) is granted.

3. Otherwise leave to appeal is refused.

4. The appeal is allowed in part.

5. The Member’s order that the application be enlarged to include the dispute in relation to the leak in the studio shower is set aside.

6. Order number 3 of the Decision is set aside.

7. Otherwise the appeal is dismissed.

8. The matter is returned to the Tribunal for reconsideration according to law on the question of costs.

9. Each party shall file and serve, within 14 days of the date of these orders, submissions in relation to the costs of the Application for leave to appeal and appeal.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.