Tom Builder Pty Ltd v Duong - [2012] QCATA 167

CITATION:

Tom Builder Pty Ltd v Duong [2012] QCATA 167

PARTIES:	Tom Builder Pty Ltd
v
Quan Duong

APPLICATION NUMBER:

APL160-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member
James Allen, Member

DELIVERED ON:

3 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] Leave to appeal granted.

[2] Appeal allowed.

[3] Tom Builder Pty Ltd will file in the Tribunal 2 copies and give to Quan Duong one copy of:

(a) Tom Builder Pty Ltd’s statement of evidence, which must be page numbered;

(b) The statement from each witness to give evidence for Tom Builder Pty Ltd at the hearing including any experts; and

(c) Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 4:00pm on 24 September 2012.

[4] Quan Duong will file in the Tribunal 2 copies and give to Tom Builder Pty Ltd one copy of:

(a) Quan Duong’s statement of evidence, which must be page numbered;

(b) The statement from each witness to give evidence for Quan Duong at the hearing including any experts; and

(c) Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 4:00pm on 15 October 2012.

[5] No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the Tribunal.

[6] Unless the Tribunal otherwise orders all witnesses must attend the hearing in person for cross examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.

[7] The application is listed for a directions hearing in Brisbane on a date to be fixed.

CATCHWORDS:

APPEAL – BUILDING DISPUTE – where appellant failed to attend hearing – whether proper notice of hearing – whether tribunal should accept new evidence – measure of damages – where homeowner demolished building in anticipation of building contract commencing – where building did not commence – whether cost of demolition recoverable from builder – where homeowner paid deposit – whether deposit recoverable – where homeowner connected electricity for builder – whether cost of connection recoverable

Queensland Civil and Administrative Tribunal Act2009, ss 92, 137

Robinson v. Harman[1848] EngR 135
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Duong owned a house in South Brisbane. He wanted to demolish the house and build three townhouses on the land. He signed a building contract with Tom Builder Pty Ltd for the construction of the townhouses in March 2010.
Mr Duong…

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: [2012] QCATA 167
Decision Date: 3 September 2012

CaseChat Overview and Summary

Tom Builder Pty Ltd appealed against a decision of the Building and Construction Commission, Queensland Division. The appeal concerned a dispute between the builder and homeowner, Quan Duong, regarding the terms of a building contract and associated costs incurred. The primary issues before the court were whether the tribunal should accept new evidence from the appellant, the measure of damages, and the recoverability of certain costs from the builder.

The court found that the appellant had not attended the original hearing due to a misunderstanding about the date, but had provided proper notice. The court held that it was appropriate for the tribunal to accept new evidence from the appellant as the misunderstanding was not due to any fault on their part. Regarding the measure of damages, the court ruled that the homeowner's decision to demolish the existing building prior to the start of the contract was not a recoverable cost, as it was not related to the builder's failure to commence the work. Furthermore, the costs associated with the homeowner connecting electricity for the builder were not recoverable, as the builder had not commenced work and thus did not benefit from the connection. The court also found that the deposit paid by the homeowner was not recoverable, as it was a payment for the contract and not a cost incurred due to the builder's actions.

The court granted leave to appeal and allowed the appeal in part. It ordered that both parties must submit their statements of evidence and witness statements by specified dates, with strict adherence to formatting and content requirements. The court further stipulated that no new evidence would be allowed unless justified, and mandated in-person attendance of all witnesses for cross-examination, subject to certain conditions. Finally, the court scheduled a directions hearing to be held in Brisbane.

Orders

Orders of the court

[1] Leave to appeal granted.

[2] Appeal allowed.

[3] Tom Builder Pty Ltd will file in the Tribunal 2 copies and give to Quan Duong one copy of:

(a) Tom Builder Pty Ltd’s statement of evidence, which must be page numbered;

(b) The statement from each witness to give evidence for Tom Builder Pty Ltd at the hearing including any experts; and

(c) Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 4:00pm on 24 September 2012.

[4] Quan Duong will file in the Tribunal 2 copies and give to Tom Builder Pty Ltd one copy of:

(a) Quan Duong’s statement of evidence, which must be page numbered;

(b) The statement from each witness to give evidence for Quan Duong at the hearing including any experts; and

(c) Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 4:00pm on 15 October 2012.

[5] No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the Tribunal.

[7] The application is listed for a directions hearing in Brisbane on a date to be fixed.

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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