Walker v Kordonsky

[2004] QDC 32

DISTRICT COURT OF QUEENSLAND

CITATION:

Walker v Kordonsky [2004] QDC 032

PARTIES:

LEONARD and VERA WALKER

Appellants

v

PETER KORDONSKY

Respondent

FILE NO/S:

Appeal No D3552/2002

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Queensland Building Tribunal

DELIVERED ON:

17 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2003

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – Construction – contract to complete partly built home – no warranty of work done by other builder.

APPEAL AND NEW TRIAL – Appeal from Queensland Building Tribunal – whether additional evidence to be admitted – factual issues not raised before Tribunal – whether findings open on evidence.

COUNSEL:

Both parties appeared in person.

SOLICITORS:

Neither party was represented at the time of hearing.

1. This is an appeal from a decision of the Queensland Building Tribunal which on 26 July 2002 ordered the appellants[1] to pay the respondent[2] $10,886.75, being part of the amount the respondent had claimed as applicant in the proceeding in the tribunal, together with the reimbursement of his filing fee of $200.  On 9 August 2002 the appellants applied to have the decision reconsidered under the Queensland Building Tribunal Act 2000 (“the Act”). On 19 August 2002 the chair of the tribunal refused their request, on the ground that the circumstances permitting a reopening under s 88 of the Act did not apply. The notice of appeal to this court was filed on 23 August 2002. The appeal is by way of rehearing in the usual sense: Pointon v Redcliffe Demolitions Pty Ltd (2002) 23 Qld Lawyer R 103.

   [1]I shall refer to Mr and Mrs Walker as the appellants;  they were the respondents in the proceeding in the tribunal.

   [2]I shall refer to Mr Kordonsky as the respondent;  he was the applicant in the proceeding in the tribunal.

1. The proceeding arose out of the construction of a house for the appellants. They had originally entered into a contract with a builder, Davlyn Homes Pty Ltd, to construct the house, but at about the completion of the frame stage a dispute between the parties resulted in each party purporting to terminate. Proceedings were commenced in the tribunal, which ultimately decided that the company was entitled to recover some payment from the appellants. The appellants counter-claimed for defective workmanship, in respect of which the sum of $500 was allowed by the tribunal. The appellants appealed to the District Court from that decision, which appeal was dismissed: [2003] QDC 292. The appellants applied for leave to appeal from that decision to the Court of Appeal. After the present appeal was argued before me, the Court of Appeal refused that application: [2003] QCA 565. The judgment of the Court of Appeal contained a number of important statements of principle as to the correct approach to appeals from the tribunal to this court under the Act. I am of course bound to apply the approach laid down by the Court of Appeal.

1. After the relationship between the appellants and that…