Von Nagy v M Ewald Building Pty Ltd
[2014] QCATA 52
•31 March 2014
| CITATION: | Von Nagy v M Ewald Building Pty Ltd [2014] QCATA 52 |
| PARTIES: | Melisa Charlotte Von Nagy (Appellant) |
| v | |
| M Ewald Building Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL532 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 31 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted 2. Appeal allowed. 3. The decision of 4 November 2013 is confirmed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – where leaks to home – where builder engaged to rectify leaks – where leaks more serious than first anticipated – where cost plus contract – where contract terminated – where leaks continued – whether builder responsible for leaks – where claim for refund of work not done/done poorly – whether evidence to support claims - whether grounds for leave to appeal Fox v Percy (2003) 214 CLR 118 |
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
Dr Von Nagy’s home in Chapel Hill is about 35 years old. In the words of Alex Milanovic, a consulting engineer who provided a report to the tribunal, a prominent design feature of the home is large exposed structural trusses, the webs of which are glazed. There is no dispute that the deterioration of the trusses and timber beading which held the glazing into the space between the trusses caused water leaks to Dr Von Nagy’s home.
In 2011, Dr Von Nagy engaged M Ewald Building Pty Ltd to investigate the water leaks. For all intents and purposes, Michael Ewald is the alter ego of M Ewald Building Pty Ltd. Mr Ewald provided a quote for $1,980 including GST to replace the timber beading, seal between the beading and the glass/timber frame and install some flashing.
After he started work, Mr Ewald found the job to be much more than he anticipated. There was significant structural damage to the trusses and the bearers that supported the trusses. He found wood rot and termite damage. Three panes of glass broke due to edge load stress resulting from the deterioration of the structural members supporting the trusses.
At Mr Ewald’s suggestion, Dr Von Nagy commissioned the report from Mr Milanovic. She then entered into a cost plus contract with Mr Ewald to attend to the matters identified in that report.
Progress was slow. The cost plus contract was terminated. The house still leaked. Dr Von Nagy engaged other builders to fix the leaks. She claimed the cost of the new builders from Mr Ewald. She also claimed for some flashing that was not installed and the cost of rebuilding a wall where Mr Ewald had not inserted builders’ paper. A member of the tribunal dismissed Dr Von Nagy’s claim.
Dr Von Nagy wants to appeal that decision. She says the learned Member erred in failing to consider all the evidence about the cause of the water leaks after Mr Ewald left the site. She says that the learned Member did not consider her claim for the rebuilding of the wall or the flashing that was not used.
Because this is an appeal on a question of mixed fact and law, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[2] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[3]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[3]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Dr Von Nagy says that the learned Member failed to consider the material in the “full page of hand-up references”. The transcript records that the learned Member received it[4] and there is a copy on the file.
[4]Transcript page 1-13, line 1.
Although he did not refer specifically to Dr Von Nagy’s list of material, it is clear that the learned member considered all the evidence carefully. He had a report from the Queensland Building Services Authority, Mr Milanovic’s report, and a report from Pattersons Insurabuild. The learned Member did not find the report from Pattersons persuasive. The learned Member observed that the QBSA inspector would not issue a direction to rectify because there were too many potential sources of water ingress. He was left with a residual sense of unease… even on the balance of probabilities that he could confidently draw the conclusion that the water leaks continued through the sections Mr Ewald had rectified.
Dr Von Nagy bears the onus of proof. Because of the doubts expressed by the QBSA inspector, the learned Member was not persuaded that Dr Von Nagy had discharged that onus. My task is to determine whether there is an error, not to decide where the truth lay as between the competing versions given by the parties.[5] I cannot find such an error. I am not persuaded that the learned Member erred in deciding that he was unpersuaded by the evidence.
[5]Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
It is true that the learned Member did not deal with Dr Von Nagy’s claims for the flashing and the rebuilding of the wall. That is understandable, given Dr Von Nagy’s comments that she was primarily interested in the first costs (the water ingress costs)[6] and that she was not too worried (about the other costs)[7]. However, the learned Member did err in failing to address those claims. Leave to appeal should be granted and the appeal allowed.
[6]Transcript page 1-8, lines 7-8.
[7]Transcript page 1-8, line 20.
In support of these extra claims, Dr Von Nagy referred to tribunal to her Attachment 11 filed in the original proceeding. Attachment 11 is a bundle of invoices. There is no independent statement from any person confirming that the flashing was not installed, or that the builders’ paper was not installed. There is no independent evidence to confirm the labour costs Dr Von Nagy claims should be refunded.
In response to the flashing claim, Mr Ewald submitted he had the flashing fabricated and installed on site three times and, each time, Dr Von Nagy’s husband was not happy with the result. Mr Ewald agrees that the work was not completed but says that this is because he could never match the new flashing to the existing flashing in the way Dr Von Nagy wanted. It is apparent that work was done and flashing supplied. I am satisfied that Mr Ewald did supply flashing. I am satisfied that he incurred labour costs in installing the flashing. I can find no reason why Dr Von Nagy should be entitled to a refund of these costs.
Mr Ewald has a simple submission about the claim for the wall. He says he did not rebuild any walls and he does not know what this claim is about. Once again, Dr Von Nagy bears the onus of proving her claim. She has not discharged that onus. Her claim should be dismissed.
Although I have granted leave to appeal, and allowed the appeal, my decision is, in fact, the same as the learned Member’s decision under appeal. I therefore confirm the learned Member’s decision, albeit for slightly different reasons.
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