Wellard v Nicol

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.