Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd - [2011] QCATA 102

CITATION:

Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCATA 102

PARTIES:	Tilecorp Pty Ltd (Applicant/Appellant)
v
Pinnacle Seal Pty Ltd (Respondent)

APPLICATION NUMBER:

APL056-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

21 April 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal on question of law refused.

2. Application for leave to appeal on questions of fact or mixed questions of law and fact refused.

CATCHWORDS:

BUILDING DISPUTE – DECISION IN ABSENCE OF PARTY – APPEAL ON QUESTION OF LAW – where applicant filed response but failed to attend compulsory conference due to error of its own – where learned Member did not stand matter down or adjourn proceedings – where learned Member determined matter in accordance with s 72 of the Queensland Civil and Administrative Tribunal Act 2009 – whether learned Member erred in law

BUILDING DISPUTE – LEAVE TO APPEAL – QUESTIONS OF FACT OR MIXED LAW AND FACT – where applicant filed response but failed to attend compulsory conference due to error of its own – where learned Member determined the matter in its absence – whether learned Member gave insufficient or too much weight to certain evidence

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 137, 142

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 cited

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 followed

Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCAT 052 cited

Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450 followed

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 (QCAT Act).

REASONS FOR DECISION

This commercial building dispute was set down for a compulsory conference before a QCAT Member, Professor Adrian Ashman, on 22 October 2010. Tilecorp Pty Ltd did not appear at the conference and the learned Member decided to proceed under s 72 of the QCAT Act and made a decision in the matter.
He did so, and ordered that Tilecorp Pty Ltd pay Pinnacle Seal Pty Ltd $10,912.00 and, also, ordered that Pinnacle Seal was relieved from paying Tilecorp an amount of $12,240 it was claiming.
Tilecorp then applied through Mr David Mullan (who described himself as the ‘owner of the company’) for an order that the proceeding be reopened.
QCAT can order reopening if it is satisfied that a party had a reasonable excuse for not attending a hearing (including a compulsory conference); or, would suffer substantial injustice if the proceeding was not reopened, because significant new evidence has arisen which was not reasonably available when the proceeding was first heard and decided.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 137.
In his submissions in support of the re-opening Mr Mullan says he ‘…missed the original compulsory conference which was set down for 22/10/2010 at 3:30 pm because I had wrongly…

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: [2011] QCATA 102
Decision Date: 21 April 2011

CaseChat Overview and Summary

Tilecorp Pty Ltd sought to appeal a decision made by a learned Member of the Queensland Civil and Administrative Tribunal (QCAT) in the context of a building dispute against Pinnacle Seal Pty Ltd. Tilecorp had filed a response to the proceedings but failed to attend a compulsory conference due to an internal error. Despite this, the learned Member proceeded to determine the matter without adjourning or standing the matter down, under section 72 of the Queensland Civil and Administrative Tribunal Act 2009. Tilecorp argued that the learned Member had erred in law by not standing down the matter or adjourning the proceedings.

The court was tasked with determining whether the learned Member erred in law by not standing down or adjourning the proceedings and whether the learned Member had given insufficient or too much weight to certain evidence when deciding the matter in Tilecorp's absence. The appeal hinged on whether the procedural error warranted a different outcome and if the evidence assessment was legally sound. The court examined the statutory framework and the tribunal's adherence to procedural fairness principles in reaching its decision.

The court found that the learned Member did not err in law. It held that the Member was entitled to proceed under section 72, given Tilecorp's failure to attend the compulsory conference due to its own error. The court also determined that the learned Member appropriately assessed the evidence and did not give insufficient or excessive weight to any particular evidence. Consequently, the appeal on the question of law and the application for leave to appeal on questions of fact or mixed questions of law and fact were both refused.

No further orders were made beyond those already outlined in the decision.

Orders

Orders of the court

1. Appeal on question of law refused.

2. Application for leave to appeal on questions of fact or mixed questions of law and fact refused.

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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