Wormwell v Frost

[2011] QCATA 8

CITATION: Wormwell v Frost [2011] QCATA 8

PARTIES:	Mr Samuel Wormwell
V
Mr Jeremy Frost

APPLICATION NUMBER:   APL 087-10

MATTER TYPE: Appeals
Building matters

HEARING DATE:     18 November 2010

HEARD AT:  Brisbane

DECISION OF: Hon James Thomas, Presiding Member
Clare Endicott, Senior Member
Kerrie O’Callaghan, Senior Member

DELIVERED ON: 20 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Leave to appeal should be granted but the appeal should be dismissed

CATCHWORDS :  Leave to appeal (QCAT Act s 142) – Whether error of law shown –
Building Contract – payment of “deposit” to third party – whether third party was builder’s agent – ostensible authority of agent –
“Subject to finance” condition – whether contract came into effect and whether rights under clause waived

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Samuel Wormwell was represented by Mr James Bell QC & Mr Christopher Johnstone of counsel, instructed by McCullough Robertson
RESPONDENT:	Mr Jeremy Frost was represented by Mr David Maunsell of Maunsell Pennington

REASONS FOR DECISION

Nature of proceedings and jurisdiction

1. This is an application for leave to appeal against a decision of a Tribunal member in a domestic building dispute under the Queensland Building Services Authority Act 1991. The application to this Appeal Tribunal is brought under section 142 of the Queensland Civil and Administrative Tribunal Act 2009.

1. The applicant erroneously asserted in his application that he did not require leave to appeal, despite the fact that the stated grounds all raise issues of fact or mixed issues of fact and law, as to which there is no right of appeal without leave (QCAT Act section 142(3)(b)).

1. Mr Bell QC who appeared for the applicant/appellant, conceded that leave was necessary, and based his submissions on three principal points which he claimed showed clear errors of law. 

1. The present litigation involves a claim by Mr Jeremy Frost (“the owner”) against Mr Wormwell (“the builder”).  It was for the return of $27,000 allegedly paid to the builder.

1. Another entity (Redstar Modular Homes Pty Ltd) also played an important, indeed a dominant role, in the relevant events, but it was not included as a party.  Redstar was the entrepreneur which conducted the dealings with the owner that lead to the contract in question, including quotation of the price, and it also intermeddled in the performance of the contract.

1. For convenience we will refer to the applicant/appellant as “the builder”, to the respondent as “the owner” and to the entrepreneur as “Redstar”.

1. The owner’s claim against the builder was for the return of $27,000 allegedly paid by him to the builder under a building contract.  The learned Tribunal member allowed the claim and ordered the builder to pay $27,000 plus interest to the owner.

1. The contract sued on was in the form of a Master Builders Residential Building Contract, which provided for the supplying and fixing in place of two transportable houses upon the owners land at Cloncurry for a price of $420,380 payable at various stages.

1. The owner was named…