Wenn v Cafe San Paul P/L - [2008] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

Wenn v Café San Paul P/L [2008] QCA 108

PARTIES:

GERALD JAMES WENN
(applicant/appellant/applicant)
v
CAFÉ SAN PAUL PTY LTD ACN 097 434 896
(respondent)

FILE NO/S:

Appeal No 9982 of 2007
DC No 2683 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2008

JUDGES:

Muir JA, White and Lyons JJ

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

ORDERS:

1.     Leave to appeal the order of the District Court made on 28 September 2007 be allowed

2.     Such order be varied by substituting for “$9,587” in paragraph 3 thereof with “$4,370”

3.     The following be substituted for paragraph 4 of such order:

      “The applicant Gerald James Wenn pay the respondent Café San Paul Pty Ltd’s costs of and incidental to the application for leave to appeal to be assessed on the standard basis on the scale of the District Court applicable to a claim of less than $50,000.”

4.     No order as to costs of the appeal

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the work was not completed – where the applicant seeks leave to appeal against the decision of the District Court under s 118(3) District Court of Queensland Act 1967 (Qld) – whether there was an error of law in the decision of the Commercial and Consumer Tribunal – whether the application for leave to appeal should be dismissed

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where s 100 Commercial and Consumer Tribunal Act 2003 (Qld) requires an appeal of a decision of the Tribunal to be filed within 28 days after the decision takes effect – where the Tribunal’s decision took effect on 30 August 2006 – where the respondent sought leave to appeal on 10 August 2007 – where there is no power in the District Court of Queensland Act 1967 (Qld) or the Uniform Civil Procedure Rules 1999 (Qld) to extend the time limit – whether the primary judge’s implicit decision to give leave to appeal resulted in an error of law which ought to be corrected

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the contract sum was $6,600 – where the work was not completed – where the respondent engaged another builder to complete the contract for $13,970 – whether the…

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.

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Details

Case: [2008] QCA 108
Decision Date: 2 May 2008

CaseChat Overview and Summary

The case of Wenn v Cafe San Paul P/L involved a dispute over a minor works contract for a shop refitting project. The applicant, Wenn, had entered into a contract with the respondent, Cafe San Paul P/L, for the work to be completed for a sum of $6,600. However, the work was not completed, leading to a claim for damages by Wenn. The respondent subsequently engaged another builder to complete the work at a cost of $13,970. The case was initially heard by the Commercial and Consumer Tribunal, which ruled in favour of the respondent, and subsequently by the District Court, which granted leave for the respondent to appeal. Wenn then sought leave to appeal against the District Court's decision.

The legal issues before the court were whether there was an error of law in the Tribunal's decision and whether the application for leave to appeal should be dismissed. The court had to consider whether the District Court had the power to extend the time limit for an appeal and whether the Tribunal's assessment of damages was correct. Additionally, the court had to determine whether the respondent had sufficiently accepted the applicant's repudiation of the contract.

The court found that the primary judge's decision to grant leave to appeal was an error of law, as there was no power in the relevant statutes to extend the time limit for an appeal. The court also determined that the assessment of damages by the Tribunal was incorrect, as the right test for assessing damages was not applied. The court held that the respondent had sufficiently accepted the applicant's repudiation by engaging another contractor to complete the work. The court allowed the appeal and varied the order of the District Court, reducing the amount of damages awarded to the respondent and ordering the applicant to pay the respondent's costs of the application for leave to appeal.

Orders

Orders of the court

1. Leave to appeal the order of the District Court made on 28 September 2007 be allowed

2. Such order be varied by substituting for “$9,587” in paragraph 3 thereof with “$4,370”

3. The following be substituted for paragraph 4 of such order:

“The applicant Gerald James Wenn pay the respondent Café San Paul Pty Ltd’s costs of and incidental to the application for leave to appeal to be assessed on the standard basis on the scale of the District Court applicable to a claim of less than $50,000.”

4. No order as to costs of the appeal

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:	Wenn v Café San Paul P/L [2008] QCA 108
PARTIES:	GERALD JAMES WENN (applicant/appellant/applicant) v CAFÉ SAN PAUL PTY LTD ACN 097 434 896 (respondent)
FILE NO/S:	Appeal No 9982 of 2007 DC No 2683 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2008
JUDGES:	Muir JA, White and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal the order of the District Court made on 28 September 2007 be allowed 2. Such order be varied by substituting for “$9,587” in paragraph 3 thereof with “$4,370” 3. The following be substituted for paragraph 4 of such order: “The applicant Gerald James Wenn pay the respondent Café San Paul Pty Ltd’s costs of and incidental to the application for leave to appeal to be assessed on the standard basis on the scale of the District Court applicable to a claim of less than $50,000.” 4. No order as to costs of the appeal
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the work was not completed – where the applicant seeks leave to appeal against the decision of the District Court under s 118(3) District Court of Queensland Act 1967 (Qld) – whether there was an error of law in the decision of the Commercial and Consumer Tribunal – whether the application for leave to appeal should be dismissed APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where s 100 Commercial and Consumer Tribunal Act 2003 (Qld) requires an appeal of a decision of the Tribunal to be filed within 28 days after the decision takes effect – where the Tribunal’s decision took effect on 30 August 2006 – where the respondent sought leave to appeal on 10 August 2007 – where there is no power in the District Court of Queensland Act 1967 (Qld) or the Uniform Civil Procedure Rules 1999 (Qld) to extend the time limit – whether the primary judge’s implicit decision to give leave to appeal resulted in an error of law which ought to be corrected CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the contract sum was $6,600 – where the work was not completed – where the respondent engaged another builder to complete the contract for $13,970 – whether the…