Yan v Queensland Building Services Authority
[2013] QCATA 232
•6 August 2013
| CITATION: | Yan v Queensland Building Services Authority [2013] QCATA 232 |
| PARTIES: | Lihong Yan (Appellant) |
| V | |
| Queensland Building Services Authority (First Respondent) Anthony Brian Lapham (Second Respondent) |
| APPLICATION NUMBER: | APL404-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Cullinane AM QC, Judicial Member |
| DELIVERED ON: | 6 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal is dismissed. 2. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL –ADMINISTRATIVE REVIEW – DOMESTIC BUILDING CONTRACT – where the Appellant complained to the First Respondent about the construction work of the Second Respondent – where the First Respondent decided not order rectification – where the Appellant sought to review that decision – where the Tribunal confirmed the First Respondent’s decisions – where the Appellant seeks to appeal that decision – whether leave to appeal should be granted Queensland Building Services Authority Act 1991 (Qld), s 86 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43(3), s 95 Queensland Building Services Authority v Macdonald (2012) QCATA 237 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an appeal and an application for leave to appeal. The matter was heard on the papers.
The decision of the Tribunal the subject of this proceeding was delivered on the 22 October 2012 and concerned the review of certain determinations of the First Respondent.
The Second Respondent (Lapham) was a builder. He entered into a contract for the construction of a dwelling with the Appellant through his attorney Miss Li Li. All of the relevant dealings were with Miss Li Li who appeared on behalf of the appellant in the hearing.
A number of complaints were made by Miss Li Li about the construction work of the Second Respondent. Being unhappy with the determinations on those complaints the appellant sought review by the Tribunal of those decisions pursuant to s 86 of the Queensland Building Services Authority Act 1991 as amended. The Tribunal confirmed the determinations of the First Respondent.
The grounds of appeal in the notice of appeal and application for leave to appeal are as follows:
(1)The Tribunal erred in allowing the First Respondent to be legally represented whereas the Appellant was not;
(2)The Tribunal erred in proceeding to admit Mr Lapham’s evidence in view of the fact that the appellant was not afforded any opportunity to cross-examine him;
(3)The Tribunal erred in not adjourning the hearing on the second day thereof namely 28 September 2012 when Mr Lapham failed to attend so as to afford the appellant an opportunity to compel his attendance;
(4)The Tribunal erred in not finding that item 27 - landscaping formed part of the contract;
(5)The Tribunal erred in not finding that item 37 - external painting formed part of the contract;
(6)The Tribunal erred in admitting evidence in relation to any relationship of a romantic and/or sexual nature on the grounds of relevance.
Grounds include in some cases issues of law and in others questions of fact. For the former (grounds 2 and 6) there is a right to appeal whilst for the others leave is required.
The principles governing the grant of leave to appeal are found in cases such as Queensland Building Services Authority v Macdonald [2012] QCATA 237.
The First Respondent points out that in the case of all but two grounds the grounds involve an attack on the exercise by the tribunal of a discretionary power with the attendant difficulty involved in doing so.
The appellant‘s outline is difficult to relate to the grounds of appeal. It tends to deal with the whole history of the matter and is replete with assertions and argumentative matters.
I turn to the grounds. Section 43(3) of the QCAT Act deals with the grant of leave to be represented. As will be seen one of the considerations is whether the party concerned is a State agency.
There was no challenge to the grant of such leave by the Appellant nor did the Appellant at any time seek to be represented.
No basis has been established to disturb the exercise of the discretion to grant the First Respondent leave to be represented.
So far as the second ground is concerned the record shows that the Appellant cross-examined the Second Respondent and did so extensively. The Tribunal at the end of the first day invoked the power contained in s 95 of the Act to stop the Appellant further cross-examining the Second Respondent about an alleged assault expressing the view that no further evidence on this subject would be of assistance. The Tribunal plainly considered the evidence irrelevant to the issue before it. In my view the Tribunal was justified in taking this view.
The Appellant complains that the Tribunal ought to have adjourned the hearing on the second day.
The Second Respondent did not attend on the second day having indicated that he did not wish to do so. The Appellant did not object to this and did not take any steps to compel his attendance.
The Appellant does not give any indication of what she has been deprived of or what injustice has been suffered by her by the Second Respondent not being available on the second day. She had already cross-examined the witness at some length.
I am not persuaded that the appellant has suffered an injustice in this regard.
There is in my view no basis for the grant of leave in respect of those grounds for which leave is required.
Grounds 4 and 5 relate to specific matters concerning the construction work. In the first instance the Tribunal concluded from the documentation available that external painting was not within the contract. Similarly in relation to the second matter complained of namely landscaping the Tribunal found it was not within the contract and that a subsequent agreement to carry this work out was not supported by consideration.
There is no reason to doubt the correctness of each of these findings. In any case these matters do not give rise to any question of importance or otherwise justify the grant of leave.
The final ground of appeal which raises a question of law is that the Tribunal erred in admitting evidence in relation to any relationship of a romantic and/or sexual nature. The objection is said to be “on the grounds of relevance”.
The evidence was plainly relevant given the somewhat unusual terms of the contract. There were some aspects of the contract which were uncommercial and could only be understood by reference to the relationship alleged by the Second Respondent and largely accepted by the Tribunal.
The formal orders are;
1.The appeal is dismissed.
2.Leave to appeal is refused.
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