Terera and Bohlar v Clifford

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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Domestic Building Contracts Act 2000 (Qld), s 44 (repealed)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

  1. 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’). 

  2. 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…

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Details
Case
[2016] QCATA 25
Decision Date

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

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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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