Wellard v Nicol - [2017] QCATA 77

CITATION:	Wellard v Nicol [2017] QCATA 77
PARTIES:	Karen Lee Wellard (Applicant/Appellant) v John Nicol (Respondent)
APPLICATION NUMBER:	APL292-16
MATTER TYPE:	Appeals
HEARING DATE:	30 May 2017
HEARD AT:	Brisbane
DECISION OF:	Senior Member Stilgoe OAM Member Kanowski
DELIVERED ON:	6 July 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. To the extent that leave to appeal is required, leave is refused. 2. The appeal is otherwise dismissed.
CATCHWORDS:	APPEAL AND LEAVE TO APPEAL – procedural fairness – whether tribunal should have obtained evidence not produced by a party – whether tribunal failed to take into account relevant evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 21(1), s 28, s 29, s 142(3)(b) Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES:
APPLICANT/APPELLANT:	Ms Wellard
RESPONDENT:	Mr Nicol

REASONS FOR DECISION

Senior Member Stilgoe OAM

In this appeal, the Appeal Tribunal comprised Member Kanowski and me. I have had the benefit of reading Member Kanowski’s reasons in draft. I agree with his reasons, his conclusions and the order he proposes.

Member Kanowski

Introduction

Mr Nicol built an extension to Ms Wellard’s home in 2015. As construction proceeded, Ms Wellard paid a series of progress payments. In November 2015, Mr Nicol started a proceeding in QCAT seeking an order that Ms Wellard pay him $28,497.60. This figure mostly comprised $25,800 which Mr Nicol said remained owing under the building contract. On 1 August 2016 the tribunal decided the matter largely in Mr Nicol’s favour. The tribunal ordered that Ms Wellard pay $26,105 (including the $25,800 mentioned above) to Mr Nicol within 28 days.
The main dispute between the parties was about the contract price. The written building contract specified a total price of $85,000. Ms Wellard, however, argued that there was a collateral oral contract between the parties limiting the price to a maximum of $65,000. She said the higher price of $85,000 was specified in the written contract simply so that she could obtain additional finance from a bank. Ms Wellard says she needed the additional $20,000 to purchase a kitchen kit and to meet certain other expenses.
The tribunal, however, preferred Mr Nicol’s evidence that there was no such oral contract. Mr Nicol’s evidence was that there had been discussion before the contract was signed of a possibility of reducing the price from $85,000 to $65,000 if Ms Wellard elected to delete certain items. However, according to Mr Nicol, those items were not deleted and so the price remained $85,000 when the contract was signed.
The tribunal’s decision reflected a finding that the binding price was $85,000 as specified in the written contract.
Ms Wellard has now brought the matter to the appeal tribunal. She insists…

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 Wellard v Nicol

Details

AGLC: Wellard v Nicol [2017] QCATA 77
Case: [2017] QCATA 77
Decision Date: 6 July 2017

CaseChat Overview and Summary

Wellard v Nicol was heard by the Queensland Court of Appeal. The appellant, Ms Wellard, sought leave to appeal the decision of the Queensland Civil and Administrative Tribunal (QCAT) in relation to a dispute with Mr Nicol over the cost of a construction project. Ms Wellard alleged that the tribunal should have obtained evidence from Mr Emmanuel Kerry, who witnessed the written contract, and that the tribunal failed to consider relevant evidence, namely an email from her mortgage broker, Mr Bernard O'Brien.

The first issue for the court was whether the tribunal should have, but did not, obtain evidence from Mr Kerry. Ms Wellard argued that Mr Kerry also witnessed the oral contract limiting the cost to $65,000. The tribunal had issued directions for the parties to file statements of evidence of each witness. Ms Wellard did not include a statement from Mr Kerry in her written material. At a directions hearing, the tribunal checked with the parties whether they were prepared to proceed with the existing evidence, to which they indicated they were. The tribunal concluded that Mr Kerry had been available to be called by Ms Wellard as a witness, and that his evidence would not have helped her case. The second issue was whether the tribunal disregarded relevant evidence, namely the email from Mr O'Brien. The tribunal did not refer to this email in its reasons, but the court found that this did not affect the outcome.

The court found that the tribunal did not err in not obtaining evidence from Mr Kerry as it was Ms Wellard's responsibility to produce the evidence. The court found that the tribunal's failure to take Mr O'Brien's email into account did not affect the outcome and so leave to appeal should be refused. The court concluded that Ms Wellard was not successful in this appeal proceeding.

The court refused leave to appeal to the extent that it was required, and dismissed the appeal otherwise.

Orders

Orders of the court

1. To the extent that leave to appeal is required, leave is refused.

2. The appeal is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Wellard has two grounds of appeal. The first is to the effect that the tribunal should have, but did not, obtain evidence from the person who witnessed the written contract, Mr Emmanuel Kerry. Ms Wellard says that Mr Kerry also witnessed the oral contract limiting the cost to $65,000. The second ground is that the tribunal disregarded relevant evidence namely the email she had provided from her mortgage broker, Mr Bernard O'Brien.First appeal ground: the tribunal not obtaining evidence from Mr Kerry On 9 March 2016, some months prior to the hearing, the tribunal issued detailed written directions to the parties. These included directions for each party to file and give to the other party statements of evidence of each witness who was to give evidence for them at the hearing. Mr Nicol was to do this by 6 April 2016 and Ms Wellard by 4 May 2016. The written material lodged by Ms Wellard did not include a statement from Mr Kerry. At a directions hearing on 25 May 2016, the tribunal checked with the parties whether they were prepared to proceed to hearing with the existing evidence. They indicated that they were. The hearing then took place on 11 July 2016. Ms Wellard and Mr Nicol each gave oral evidence. Ms Wellard also called her father, Mr Kenneth Turner, as a witness. In its written reasons for decision, the tribunal noted that Ms Wellard contended that Mr Kerry would be able to back up her evidence of an oral contract for $65,000. The tribunal also noted evidence from Mr Turner that he had met with Mr Kerry after the QCAT proceeding was commenced. Mr Turner said that Mr Kerry told him that Mr Nicol had agreed to do the job for $65,000. The tribunal concluded that Mr Kerry had been available to be called by Ms Wellard as a witness. The tribunal noted that Mr Kerry was the only person (other than the parties) capable of shedding light on whether there was an oral contract for $65,000. The tribunal inferred from Ms Wellard’s failure to call Mr Kerry that his evidence would not have helped her case. The tribunal observed that most of the negotiations had taken place between Mr Nicol and Mr Kerry. The tribunal found that Ms Wellard had “merely presumed that Mr Nicol would build her extension for $65,000”. Ms Wellard has given the following explanation for not providing evidence from Mr Kerry: “I naively assumed that the statutory declaration provided by [my] father Kenneth Turner and the email from finance broker Bernard O’Brien would be sufficient evidence”. Ms Wellard also points out that she stated more than once during the hearing that Mr Kerry could be contacted by phone. In legal terms, Ms Wellard’s appeal ground might be framed in terms of a denial of procedural fairness along the following lines: as a self-represented party Ms Wellard had not appreciated the importance of producing direct evidence from Mr Kerry; she indicated at the hearing that evidence could be obtained from Mr Kerry by phoning him; and it was incumbent on the tribunal to phone Mr Kerry to ensure that Ms Wellard had a reasonable opportunity to present her case.

Decision

Reasons for decision

While it would have been desirable for the tribunal to have referred to Mr O'Brien’s email in its reasons, I do not consider that granting leave to appeal would be warranted. There was no injustice caused to Ms Wellard by the tribunal’s failure to take Mr O'Brien’s email into account. Nor is there any question of general importance that would warrant a grant of leave.Conclusion Ms Wellard is not successful in this appeal proceeding. In respect of her first ground of appeal, she has not demonstrated that the tribunal made any error. In respect of the second ground, the tribunal’s failure to take Mr O'Brien’s email into account did not affect the outcome and so leave to appeal should be refused.

Ratio Decidendi

Legal Principle Established

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