Waldock v Kel Evans Pools Pty Ltd - [2013] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Waldock & Anor v Kel Evans Pools Pty Ltd & Anor [2013] QDC 156

PARTIES:

DAVID WALDOCK
(Appellant/Plaintiff)

and

NOELEEN WALDOCK
(Appellant/Plaintiff)

v

KEL EVANS POOLS PTY LTD ACN 076 467 635
(First Respondent/First Defendant)

and

DES NEWPORT CONSULTING ENGINEERS PTY LTD ACN 010 668 078
(Second Respondent/Second Defendant)

FILE NO/S:

4927/12

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 and 10 July 2013

JUDGE:

Smith DCJ

ORDER:

1.   The Appeal is allowed and the decisions below are set aside.

2.   Pursuant to section 47(b) of the Magistrates Court Act 1921 (Q) the matter is remitted to the Magistrates Court Brisbane for retrial before a different Magistrate.

3.   Order that the Respondents pay the Appellants’ costs of and incidental to this appeal as agreed or to be assessed.

4.   Grant the Respondents indemnity certificates pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Q).

CATCHWORDS:

APPEAL AND NEW TRIAL - whether the reasons given by the court below were sufficient

Appeal Costs Fund Act 1973 (Q) ss 15, 16 and 17

Magistrates Court Act 1921 (Q) s 47

Abalos v Australian Postal Commission (1990) 171 CLR 167

Camden v McKenzie [2008] 1 Qd R 39

Drew v Makita (Australia) Pty Ltd [2009] QCA 66

Martin v Rowling and Anor [2005] QCA 174

NRMA Insurance Ltd v Tatt & Anor (1989) 94 FLR 339

Pettitt v Dunkley [1971] 1 NSWLR 376

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

COUNSEL:

A Vasta QC with P Trout for the Appellants

M Drysdale for the First Respondent

J Meredith for the Second Respondent

SOLICITORS:

Dare Lawyers for the Appellants

Walker Pender for the First Respondent

Crouch and Lyndon for the Second Respondent

Introduction

This is an appeal by the Appellants against a decision of the Brisbane Magistrates Court on 19 November 2012 to dismiss their claim against the Respondents.

Grounds of appeal

The grounds of appeal are:

1. The Magistrate erred in law in not considering the Plaintiffs’/Appellants’ claims under the Trade Practices Act 1974 (Cth).

2. The Magistrate failed to state any sufficient reasons for not accepting the Plaintiffs’/Appellants’ expert engineer in preference to that of the Defendants’/Respondents’ expert engineer.

3. The Magistrate erred in law in failing to find on the balance of probabilities that the damage to the pool was caused by the inadequate design of the pool, having regard to the site which contained highly and extremely reactive clay.

4. The findings resulting in the dismissal of the Plaintiffs’/Appellants’ claim were against the evidence and the weight of the evidence.

On 10 July 2013 I gave the Appellants leave to amend the Notice of Appeal by adding the following two grounds:

5. The primary court erred in law in failing to give any or any sufficient reasons as to why the Appellants’ claim for damages for breach of…

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.

Continue reading Waldock v Kel Evans Pools Pty Ltd

Details

AGLC: Waldock & Anor v Kel Evans Pools Pty Ltd & Anor [2013] QDC 156
Case: [2013] QDC 156
Decision Date: 12 July 2013

CaseChat Overview and Summary

The case of Waldock v Kel Evans Pools Pty Ltd involved an appeal against decisions made by the Magistrates Court in Brisbane. The nature of the dispute pertained to the adequacy of the reasons given by the court for its judgment. The Appeal Costs Fund Act 1973 (Q) and the Magistrates Court Act 1921 (Q) were key statutes considered in the appeal. The Queensland Court of Appeal was the court that heard the case.

The primary legal issues addressed in the appeal concerned whether the reasons provided by the lower court were sufficient to justify the decisions made. The appeal court had to determine if the Magistrates Court had adequately explained the basis for its judgment. This involved examining the reasoning process and the articulation of the decision by the Magistrates Court. The appeal court referenced several precedents, including Abalos v Australian Postal Commission, Camden v McKenzie, and others, to assess the standard of reasoning required in such cases.

The Queensland Court of Appeal found that the reasons given by the Magistrates Court were insufficient. The court determined that the reasons did not adequately explain the basis for the decision, which is essential for ensuring the transparency and fairness of the judicial process. Consequently, the appeal was allowed, and the decisions of the Magistrates Court were set aside. The matter was remitted for retrial before a different magistrate. Additionally, the Court ordered that the respondents pay the appellants' costs of the appeal and granted indemnity certificates to the respondents under the Appeal Costs Fund Act 1973 (Q).

This decision underscores the importance of clear and comprehensive reasoning in judicial decisions, ensuring that the parties involved have a clear understanding of the basis for the court's judgment. The final orders included setting aside the original decisions, remitting the matter for retrial, and ordering costs and indemnity certificates as specified.

Orders

Orders of the court

1. The Appeal is allowed and the decisions below are set aside.

2. Pursuant to section 47(b) of the Magistrates Court Act 1921 (Q) the matter is remitted to the Magistrates Court Brisbane for retrial before a different Magistrate.

3. Order that the Respondents pay the Appellants’ costs of and incidental to this appeal as agreed or to be assessed.

4. Grant the Respondents indemnity certificates pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Q).

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.

CITATION:	Waldock & Anor v Kel Evans Pools Pty Ltd & Anor [2013] QDC 156
PARTIES:	DAVID WALDOCK (Appellant/Plaintiff) and NOELEEN WALDOCK (Appellant/Plaintiff) v KEL EVANS POOLS PTY LTD ACN 076 467 635 (First Respondent/First Defendant) and DES NEWPORT CONSULTING ENGINEERS PTY LTD ACN 010 668 078 (Second Respondent/Second Defendant)
FILE NO/S:	4927/12
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	12 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	4 and 10 July 2013
JUDGE:	Smith DCJ
ORDER:	1. The Appeal is allowed and the decisions below are set aside. 2. *Pursuant to section 47(b) of the Magistrates Court Act* 1921 (Q) the matter is remitted to the Magistrates Court Brisbane for retrial before a different Magistrate. 3. Order that the Respondents pay the Appellants’ costs of and incidental to this appeal as agreed or to be assessed. 4. Grant the Respondents indemnity certificates pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Q).**
CATCHWORDS:	APPEAL AND NEW TRIAL - whether the reasons given by the court below were sufficient Appeal Costs Fund Act 1973 (Q) ss 15, 16 and 17 Magistrates Court Act 1921 (Q) s 47 Abalos v Australian Postal Commission (1990) 171 CLR 167 Camden v McKenzie [2008] 1 Qd R 39 Drew v Makita (Australia) Pty Ltd [2009] QCA 66 Martin v Rowling and Anor [2005] QCA 174 NRMA Insurance Ltd v Tatt & Anor (1989) 94 FLR 339 Pettitt v Dunkley [1971] 1 NSWLR 376 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
COUNSEL:	A Vasta QC with P Trout for the Appellants M Drysdale for the First Respondent J Meredith for the Second Respondent
SOLICITORS:	Dare Lawyers for the Appellants Walker Pender for the First Respondent Crouch and Lyndon for the Second Respondent