Walker v Davlyn Homes Pty Ltd

Case [2003] QCA 565

SUPREME COURT OF QUEENSLAND

CITATION:

Walker & Anor v Davlyn Homes P/L [2003] QCA 565

PARTIES:

LEONARD WALKER
(first appellant/first applicant)
VERA WALKER
(second appellant/second applicant)
v
DAVLYN HOMES PTY LTD ACN 069 150 376
(respondent/respondent)

FILE NO:

Appeal No 8396 of 2003

DC No 3551 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2003

JUDGES:

McPherson JA and Mackenzie and Wilson JJ

Separate reasons for judgment for each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where original decision of Queensland Building Tribunal – where appeal was not successful – where applicants seek leave to appeal from District Court decision – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118(3)
Domestic Building Contracts Act 2000 (Qld), s 51, s 56, s 66
Queensland Building Tribunal Act 2000 (Qld), s 92

Uniform Civil Procedure Rules 1999 (Qld), r 745, r 765, r 766

Allesch v Maunz [2000] HCA 040; (2000) 203 CLR 172, cited
CDJ v VAJ (No 1) (1998) 197 CLR 172, cited
Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR 54-575, cited
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied
Cooper & Anor v Jezer Construction Pty Ltd [2003] QCA 335; Appeal No 5591 of 2003, 1 August 2003, cited
Coulton & Ors  v Holcombe & Ors (1986) 162 CLR 1, referred to

Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50; No 907 of 2002, 25 March 2003, cited

COUNSEL:

The applicants appeared on their own behalf
C K Copley for the respondent

SOLICITORS:

The applicants appeared on their own behalf
Robert Bakker Lawyers for the respondent

  1. McPHERSON JA: For the reasons given by Wilson J in her judgment, I agree that the application for leave to appeal cannot succeed.  It must be dismissed with costs.

  1. MACKENZIE J: I agree with the reasons given by Wilson J for refusing leave to appeal and with the orders proposed.

  1. WILSON J:  The applicants (“Mr and Mrs Walker”) seek leave to appeal from a decision of the District Court dismissing an appeal from the Queensland Building Tribunal.

  1. Mr and Mrs Walker and the respondent (“Davlyn Homes”) were the owners and builder respectively under a contract made in or about August 2001 for the construction of a house at Ningi in the Caboolture region.  The parties’ relationship broke down at about the time of completion of the frame.  This resulted in Davlyn Homes commencing a proceeding against Mr and Mrs Walker in the Queensland Building Tribunal claiming $15,121.73 pursuant to the…

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Details
AGLC
Walker v Davlyn Homes Pty Ltd [2003] QCA 565
Case
[2003] QCA 565
Decision Date

CaseChat Overview and Summary

In Walker v Davlyn Homes Pty Ltd, the plaintiffs sought leave to appeal from a decision of the District Court of Queensland which dismissed their appeal against a decision of the Queensland Building Tribunal. The dispute originated from a claim by the plaintiffs against the defendants for damages resulting from alleged breaches of contract and misleading and deceptive conduct. The plaintiffs were dissatisfied with the outcome of their appeal to the District Court and sought leave to appeal to the Court of Appeal.

The legal issue before the Court was whether the plaintiffs should be granted leave to appeal from the District Court decision. The plaintiffs argued that the District Court had erred in law by not considering certain evidence and by failing to properly apply the relevant legal principles. The defendants opposed the application on the basis that the plaintiffs had not identified any error of law by the District Court and that the appeal was without merit.

The Court held that the plaintiffs had not demonstrated that the District Court had erred in law or that the appeal had any reasonable prospect of success. The Court found that the District Court had properly considered the evidence and had applied the correct legal principles in reaching its decision. The Court also noted that the plaintiffs had not identified any error of law by the District Court that would warrant an appeal. Accordingly, the Court dismissed the application for leave to appeal with costs.

The Court ordered that the application for leave to appeal be dismissed with costs to be paid by the plaintiffs to the defendants. The Court found that the appeal was frivolous and that the plaintiffs had no reasonable prospect of success. The Court also noted that the defendants had incurred significant costs in defending the application and that it was appropriate to award costs against the plaintiffs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs

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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