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  • Unreported Judgment

Seirlis v Queensland Building and Construction Commission

 

[2020] QCATA 37

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Seirlis & Ors v Queensland Building and Construction Commission [2020] QCATA 37

PARTIES:

TERRY SEIRLIS

(first applicant)

TIES GROUP PTY LTD (ACN 130 450 341)

(second applicant)

UKL PTY LTD (ACN 123 360 823)

(third applicant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL261-18

ORIGINATING

APPLICATION NO/S:

QR162-07 & QR164-07

MATTER TYPE:

Appeals

DELIVERED ON:

3 March 2020

HEARING DATE:

7 August 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Hughes

ORDERS:

The decision of the Tribunal at first instance is confirmed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where allegation of denial of procedural fairness arising from delay, failure to consider material and failure to provide adequate reasons – whether appealable error demonstrated

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN TRIBUNAL PROCEEDINGS – where findings and observations made said to demonstrate apprehended bias – whether apprehended bias demonstrated

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – where extending time under insurance policy conditions required exercise of discretion – where no reasonable explanation for delay – whether exercise of discretion miscarried – whether estoppel arises where discretion under statutory instrument

APPEAL AND NEW TRIAL – APPEAL - LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where claim of assignment under statutory insurance scheme – whether right to indemnity under statutory insurance scheme personal to insured

INTERFERENCE WITH TRIBUNAL’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE TRIBUNAL – PROOF AND EVIDENCE – where Tribunal erred in categorisation of building defects – where error did not impact ultimate decision – whether substantial injustice arises  

Acts Interpretation Act 1954 (Qld), s 14A

Commercial and Consumer Tribunal Act 2003 (Qld), s 48, s 104

Corporations Act 2001 (Cth), s 477

Domestic Building Contracts Act 2000 (Qld), s 67

Queensland Building and Construction Commission Act 1991 (Qld), s 86

Queensland Building Services Authority Act 1991 (Qld), Reprint 7, s 3, s 86

Queensland Building Services Authority Regulation 1992 (Qld), Reprint 7D

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 142, s 147

Statutory Instruments Act 1992 (Qld), s 14

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Armstrong v Kawana Island Retirement Village [2011] QCATA 324

ASIC v Re Forestview Nominees Pty Ltd (2007) 243 ALR 532

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd (2006) 236 ALR 720

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Brickworks v Warringah Shire Council (1963) 108 CLR 568

Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422

C&E Pty Ltd v CMC Brisbane Pty Ltd (Administrators appointed) [2004] QCA 60

Cachia v Grech [2009] NSWCA 232

Callaghan v Dominion Insurance Co Ltd [1997] 2 Lloyd’s Rep 541

Chambers v Jobling (1986) 7 NSWLR 1

Commonwealth v Vero Insurance (2012) 291 ALR 563

Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

Creek v Raine & Horne Mossman [2011] QCATA 226

Dearman v Dearman (1908) 7 CLR 549

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Edmonds v Queensland Building Services Authority [2003] QBT 22

Expectation v PRD Realty (2004) 140 FCR 17

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117

Fox v Percy (2003) 214 CLR 118

Galea v Galea (1990) 19 NSWLR 263

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Gollan v Vaccaneo [2013] QCATA 228

Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244

House v The King (1936) 55 CLR 499

Ivory v Telstra Corp Ltd [2002] QCA 457

Jago v District Court of NSW (1989) 168 CLR 23

Jensen v Queensland Building Services Authority [1996] QBT 198

Jimenez v Sternlight Investments [2010] QCATA 29

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

King v ASIC [2018] QCA 352

Kioa v West (1985) 159 CLR 550

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Lange v Queensland Building Services Authority [2012] 2 Qd R 457

Lovell v Lovell (1950) 81 CLR 513

Mansoor & Rezaee v Queensland Building Services Authority [2011] QCAT 53

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Mike Brennan Motors Pty Ltd v Aussie Car Loans [2010] QCA 174

Mills v Meeking (1990) 169 CLR 214

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Minister for Immigration and Ethnic Affairs v Polat (1995) 98 FCR 98

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611

Monie v Commonwealth (2005) 63 NSWLR 729

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

NT of Australia v Public Trustee of NT (2001) 165 FLR 42

Pentridge Village Pty Ltd v Capital Finance Australia Ltd [2018] VSC 633

Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

PJS Development Pty Ltd v Tong [2003] QSC 337

QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

R v Scott (1990) 20 NSWLR 72

Re JRL; Ex parte CJL (1986) 161 CLR 242

Schepis & Anor v QM Properties Pty Ltd [2012] QCAT 197

Searle v Queensland Building Services Authority [2007] QCCTB 182

Seirlis v Queensland Building Services Authority [2011] QDC 107

Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291

Selvanayagam v University of the West Indies [1983] 1 All ER 824

Slater v Wilkes [2012] QCATA 12

Smith v Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Vakauta v Kelly (1989) 167 CLR 568

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Walker v Queensland Building and Construction Commission [2014] QCAT 228

Waterford v The Commonwealth (1987) 163 CLR 54

Waterways Authority v Fitzgibbon (2005) 221 ALR 402

Yager v R (1977) 139 CLR 28

REPRESENTATION:

 

Applicant:

M Steele of Counsel instructed by Hillhouse Legal Partners

Respondent:

G Thomson of Counsel instructed by Queensland Building and Construction Commission

REASONS FOR DECISION

Background

  1. [1]
    The appellants filed an application for leave to appeal or appeal the decision of the Tribunal of 31 August 2018 in matters QR162-07 and QR164-07. After a hearing of eight days, the Tribunal at first instance dismissed the applications to review the decisions of the Queensland Building Services Authority, as it then was, to disallow two statutory insurance claims.
  2. [2]
    The claims were made under separate certificates of insurance relating to defective residential construction work in two freestanding townhouses, each built at 53 Paragon Street, Yeronga.
  3. [3]
    These proceedings were first commenced on 18 September 2007 in the former Queensland Commercial and Consumer Tribunal (‘QCCT’). The relevant legislation at that time was the Queensland Building Services Authority Act 1991 (‘QBSA Act’).[1] The QCCT summarily dismissed the proceedings on 2 September 2008.[2]
  4. [4]
    This was appealed to the District Court. In its decision of 15 June 2011, the District Court upheld the appeal, holding that there had been a denial of natural justice in the summary dismissal of the applications[3] and remitting the matters to the QCCT for rehearing. By this time, the Queensland Civil and Administrative Tribunal (‘QCAT’) had absorbed the functions previously assigned to the QCCT.[4]

Grounds of appeal

  1. [5]
    This appeal involves questions of law, questions of mixed law and fact and questions of fact. The grounds of appeal may be summarised as follows:

Ground 1: there was a denial of procedural fairness arising from the delay between the hearing of the application in 2015 and the delivery of the reasons for the decision in August 2018, a failure to consider certain claims and evidence and a failure to provide reasons in relation to certain matters.

Grounds 2 and 3: the Tribunal erred in finding that all claims related to category 2 defects (ground 2) and in not making any findings in relation to category 1 defects (ground 3).

Ground 4: the Tribunal erred in finding that the claim for category 2 defects was made outside the time allowed by the insurance policy.

Ground 5: the Tribunal erred in exercising the discretion to refuse payment under clause 5.1 of the insurance policy.

Grounds 6, 7 and 8: the Tribunal erred in finding that the right to indemnity under the insurance policies was personal to the insured and that the second and third applicants were not entitled to the benefit of the policies.

Grounds 9 and 10: the Tribunal erred in failing to make any determination about the costs of rectification or assessment in loss of value of the lots.

Ground 11: the decision was affected by apprehended bias.

  1. [6]
    Generally, other than questions going to the proper interpretation of the provisions of the statutory insurance scheme, the grounds of appeal raise questions of fact or mixed law and fact. Failing to consider evidence or making findings of fact not open on the evidence raises questions of fact or questions of mixed law and fact.[5] Similarly, a failure to give full reasons does not necessarily amount to an error of law – the nature and extent of the obligation varies according to the nature of the case.[6] The question is not whether some reasons must be given relevant to the findings of fact that are made, but what reasons are required.[7]
  2. [7]
    Where the appeal raises questions of mixed law and fact or questions of fact, leave to appeal is required.[8] Where leave is given, the appeal must be decided by way of rehearing.[9] In determining whether to grant leave to appeal, the Appeal Tribunal will consider established principles including:
    1. (a)
      whether there is a reasonably arguable case of error in the primary decision;[10]
    2. (b)
      whether there is a reasonable prospect that the appellant will obtain substantive relief;[11]
    3. (c)
      whether leave is needed to correct a substantial injustice caused by some error;[12] and
    4. (d)
      whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[13]
  3. [8]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[14] A clear purpose of the requirement for leave is to prevent any attempt to simply conduct a retrial on the merits of the case.[15] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case.[16]

Should the decision of the Tribunal be confirmed or set aside

  1. [9]
    We have determined that the appeal is without merit and should be dismissed and that, to the extent required, leave to appeal should be refused.
  2. [10]
    Many of the appellants’ submissions focused on dissecting the Tribunal’s reasons in an apparent endeavour to identify any and every possible deficiency. That approach does not accord with established principles. The Tribunal is not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’.[17]
  3. [11]
    The Tribunal must act fairly[18] and according to principles of natural justice[19] with as little formality and as much speed as matters permit.[20] The statutory regime under which QCAT operates places obligations on the parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests:[21]

QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources … the public as a whole, not merely the parties to the proceedings. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[22]

  1. [12]
    The appellants’ extensive submissions to the effect that the learned Member did not make certain findings, did not refer to all the evidence and did not provide reasons to address all of their submissions do not align with the Tribunal’s statutory requirement to conduct proceedings in a way that is fair, just, economical, informal and quick[23] and does not accord with established principles. As noted in King & Others v Australian Securities and Investments Commission,[24] where ‘submissions are extremely voluminous, the need for tolerable and workable reasons will require truncation’.[25] In that case, the Court of Appeal also referred to Beale v Government Insurance Office of NSW.[26] In that case, Meagher JA stated:[27]

Where one set of evidence is accepted over a conflicting set of evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear… Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.

… it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations… the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system… The reason for this is that the giving of overly elaborate reasons can serve to undermine public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can… On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system.

It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.

  1. [13]
    This reasoning is particularly apt to the Tribunal, which is required to conduct proceedings in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[28] The primary reasons need only refer to the relevant evidence, material findings of fact (and reasons for those findings) and the applicable law and reasons for applying it.[29]
  2. [14]
    Similarly, an appealable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered. The Tribunal may decide the case in a way that does not require the determination of a particular submission and can therefore be simply put aside.[30] It is not an error for the Tribunal to not deal with each and every item of evidence not considered relevant or of sufficient weight.[31] It is sufficient that the Tribunal’s reasons set out the evidence it considered relevant and the basis for its findings. There may be unexpressed findings of fact which have formed part of the process of reasoning to the final conclusion of fact.[32]
  3. [15]
    It is within this context that the reasons at first instance are to be considered and that we address the specific grounds of appeal. 

Procedural fairness (Grounds 1 and 11)

  1. [16]
    The Tribunal must observe the rules of natural justice.[33] However, natural justice is a flexible notion that is commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.[34] The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.[35]
  2. [17]
    The appellants rely upon many of their submissions relating to other grounds of appeal to support their submission of a denial of procedural fairness. Because we find, below, that those grounds of appeal are without merit, they do not support a finding that the Tribunal denied the appellants procedural fairness. It was ‘not necessary for the Tribunal to refer to every piece of evidence and every contention made by the appellants in its written reasons’.[36] The Tribunal’s reasons referred to the relevant evidence and the basis for its decision, even if at times briefly.[37] As outlined below, its reasons were adequate.
  3. [18]
    The appellants’ remaining submissions in relation to procedural fairness involve delay and apprehended bias.

Delay and procedural fairness

  1. [19]
    It is not disputed that a delay occurred between the filing of the parties’ submissions in late May 2016 and the delivery of the Tribunal’s reasons and decision on 31 August 2018. However, delay alone is not an appealable error. The consequence of delay will depend on the circumstances of the case and whether the delay contributed to error or made the decision unsafe.[38]
  2. [20]
    For reasons we detail when considering Appeal Grounds 2 to 10 below, in our view the appellants have not demonstrated any appealable error. Because the appellants have not demonstrated that the delay contributed to any relevant error, the delay did not vitiate the decision at first instance.[39]

Apprehended bias

  1. [21]
    Because of the waste of resources and delays caused by setting aside a judgment, public policy and confidence in the efficient administration of justice dictate that the Courts do not readily make findings of apprehended bias.[40] The test is whether a fair- minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question the Tribunal is required to decide.[41]
  2. [22]
    Importantly, that fair-minded observer is assumed to be reasonable.[42] We consider that a fair-minded observer acting reasonably would accept that the Tribunal’s rulings on pleadings and objections, findings on credit and comments made during the hearing were made in furtherance of its statutory mandate to conduct proceedings in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[43]
  3. [23]
    The Tribunal is not bound by the rules of evidence[44] or the rules of pleading[45] and may inform itself in any way it considers appropriate.[46] The Tribunal need only ensure, so far as is practicable that all relevant material is disclosed to it to enable it to decide the proceeding with all the relevant facts.[47]
  4. [24]
    While the Tribunal’s use of terms such as “fiction’ when describing the appellants’ arrangements may have been blunt, it does not show bias.[48] To fulfil the Tribunal’s mandate, parties must expect some degree of exploration and discussion of issues by members during the course of a hearing.[49] Sometimes, voices may even be raised.[50]
  5. [25]
    We are not satisfied that the Tribunal’s findings about the credit of Mr Seirlis or Mr Smith showed any undue favour for the respondent over the appellants. We do not consider the Tribunal’s intervention to have fettered its ability to render a fair hearing. Mr Seirlis and Mr Smith both gave evidence about quantum. The Tribunal’s findings on their credit therefore related to an issue before it. It is not a manifestation of bias if the Tribunal forms an unfavourable view of parties or their witnesses.[51] A fair-minded lay observer acting reasonably would understand that this is the very nature of Tribunal proceedings – regardless of whether findings on credit were or were not ultimately determinative of the dispute.
  6. [26]
    We are also not satisfied that the appellants were unfairly prejudiced by the Tribunal allowing the respondent to make submissions not pleaded or refusing to allow the appellants to make further submissions as to the legal effect of the final part of clause 2 of the policy of insurance (discretion in relation to the time limit for making a claim). The issue of the exercise of that discretion is discussed below, at [48]-[52]. Because these were review proceedings, the appellants had an evidential onus to provide appropriate material to support the decision they sought:

Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.[52]

  1. [27]
    This has also been described as a ‘practical onus’.[53] As we set out below, it was always for the appellants to show that their claims were within time and if not, to establish why they should be allowed further time.[54] The respondent’s ‘Outline of Issues’ filed in 2013 – well before the hearing in 2015 - expressly noted that “the Applicants do not plead that time has expired but ought to be extended.” Yet the appellants did not act on this notice by filing submissions before the hearing.
  2. [28]
    Similarly, the appellants’ case for assignment did not adduce sufficient evidence and was deficient. Regardless of the respondent’s submissions about the sales contracts being “shams”, the doctrine of champerty and maintenance and the appointment of receivers to TSPD Pty Ltd affecting the claim by UKL Pty Ltd, integral to the appellants’ case was the issue of assignment. The appellants always had an evidential onus to address this and its precursory and collateral issues, including legal capability of assignment and its validity.
  3. [29]
    The appellants cannot be said to have been ambushed and were therefore not denied procedural fairness by the Tribunal exercising its discretion in its rulings on these issues.
  4. [30]
    Nothing in the transcript suggests that the appellants were denied a fair hearing. Having reviewed the transcript and the Tribunal’s reasons, we find nothing to indicate that the Tribunal was influenced by irrelevant matters or acted other than to properly discharge its functions.[55] The Tribunal allowed questions of the parties and witnesses and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, it focused the hearing on the issues to be determined and used time and resources efficiently, consistent with the Tribunal’s mandate.
  5. [31]
    The Tribunal afforded the appellants natural justice within the context of the Tribunal’s statutory mandate and its review jurisdiction.
  6. [32]
    Grounds of appeal 1 and 11 are without merit.

Findings said to be not open on the evidence (Grounds 2 and 4)

Did the Tribunal err in finding that all of the defects were ‘category 2’? (Ground 2)

  1. [33]
    The Respondent concedes that the following finding by the Tribunal was made in error:

All of the defects for which the Applicants now seek recompense under the policy are ‘category 2’ defects, as defined.[56]

  1. [34]
    However, because the Tribunal’s material findings were limited to category 2 defects,[57] we are not satisfied that the error affected the ultimate outcome requiring leave to correct any substantial injustice relating to category 2 defects.
  2. [35]
    We address below, at [79]-[81], whether the error affected the ultimate outcome by not making findings about category 1 defects.  

Did the Tribunal err in finding that the claim for category 2 defects were made outside the period? (Ground 4)

  1. [36]
    The appellants submitted that the Tribunal erred in concluding that the category 2 defects were outside the relevant period because:
    1. (a)
      it did not consider the evidence of various witnesses about practical completion and did not consider or make findings about the purpose for which certificates of practical completion were issued; and
    2. (b)
      it erred in finding that section 67(6) of the Domestic Building Contracts Act (Qld) did not apply;
    3. (c)
      it erred in not considering whether to exercise the discretion to extend time.

Did the Tribunal err in not considering evidence of witnesses or making findings about the purpose for which certificates of practical completion were issued?

  1. [37]
    The Tribunal’s findings on practical completion will not be disturbed on appeal if the facts inferred by the Tribunal are capable of supporting its conclusions, and there is evidence capable of supporting the underlying inferences.[58] No error of law arises in making a finding of fact unless no evidence supports that finding.[59]
  2. [38]
    However, an appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case,[60] but will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[61] Upon reading the transcript and the Tribunal’s reasons, it is clear that it did have evidence capable of supporting its findings.[62]
  3. [39]
    It was not necessary for the Tribunal to detail each factor that it found to be relevant or irrelevant in canvassing the alternative possibilities about practical completion and its ultimate findings.[63] As noted at paragraph [12] above, the Tribunal was not required to decide every matter raised in argument or make an explicit finding on every disputed item of evidence.[64]
  4. [40]
    The Tribunal explicitly rejected the evidence of Mr Hemold and explained why, including deficiencies in his inspection and report.[65] Having done this, the Tribunal was not required to then consider every other aspect of his evidence. Indeed, the Tribunal need not rationalise the basis for its evaluation of witnesses beyond its own experience:

The weight which a judge will give to the evidence of a witness will often not be capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says. The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things… His reasons, in the particular case, may partake as much of intuition based on experience as on formal deductive reasoning.

… A fact is found in a particular case if the judge is satisfied that it is so. In many matters – and the weight to be given to a fact in the process of assessing facts is one of these – whether a judge is so satisfied in the sense required by Briginshaw v. Briginshaw (1938) 60 CLR 336, may depend upon matters subjective to him as well as upon matters common to judges.[66]

  1. [41]
    If the Tribunal’s reasons do not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the Tribunal did not consider it relevant or that it outweighed the evidence upon which findings were made.
  2. [42]
    Although the Tribunal did not explicitly make findings about the purpose for which certificates of practical completion had been issued or articulate whether it rejected the evidence of Mr Hutton, Mr Stonely, Mr Cottee and Mr Englert and why, it did refer to their evidence in its reasons.[67] The Tribunal was entitled to not place weight on their evidence in the face of competing evidence to support alternative possibilities and its ultimate findings.[68] At most, their evidence provided some basis for an alternative finding about practical completion. It did not inevitably, or even more likely than not, lead to that conclusion, but merely provided a basis for a possible alternative finding. Providing a basis for a possible alternative finding does not demonstrate error by the Tribunal.[69]
  3. [43]
    The Tribunal was not required to address all of the appellants’ submissions about the true effect of the certificates. An appealable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered. As noted at paragraph 14, above, the Tribunal may decide a case in a way that does not require the determination of a particular submission and can therefore be simply put aside.[70]
  4. [44]
    The Tribunal explicitly referred to other evidence before it to support its ultimate findings on practical completion. It is implicit that the Tribunal preferred that other evidence. Although some evidence may have supported a different finding, the Tribunal expressly referred to evidence in support of its ultimate findings.[71] The proper conclusion to be drawn is that the Tribunal did not accept evidence to the contrary.[72] Not expressly rejecting that evidence to make its ultimate findings is not an appealable error.  It is not an error to prefer one version of facts to another.[73]

Did the Tribunal err in finding that section 67(6) of the Domestic Building Contracts Act 2000 (Qld) did not apply?

  1. [45]
    We agree with the Tribunal’s finding that the meaning of ‘practical completion stage’ in section 67(6) of the Domestic Building Contracts Act 2000 (Qld) is not imported into the statutory insurance policy. That the Court of Appeal held that the contract was a ‘regulated contract’ within that Act[74] does not make it so for the purposes of determining practical completion under a different statutory instrument:

A statutory definition exists for the purposes of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Acts Interpretation Act… There is, therefore, no legitimate foundation for resorting to the definitions contained in [an Act] for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament.[75]

  1. [46]
    The same approach applies to importing a statutory definition to another instrument that already has its own definition of the same phrase. Because the phrase is defined differently, this would indicate that the intention is to have different meanings to address the different purposes of each instrument.[76]
  2. [47]
    The Tribunal adequately sets out its reasons,[77] We see no reason to come to a different view.

Did the Tribunal err in not considering whether to exercise the discretion to extend time?

  1. [48]
    The appellants submitted that the Tribunal erred in not considering whether any further time should be allowed. They submitted that rather than deciding not to exercise its discretion, the Tribunal simply failed to consider the issue. However, no basis was provided to the Tribunal to exercise the discretion. 
  2. [49]
    Extending time under clause 2.5(b) of the Insurance Policy Conditions required the exercise of a discretion. However, it was for the appellants to produce evidence to show why they should be allowed further time.[78] The time limit within which to claim is not arbitrary and should not be extended without a reasonable explanation.[79] This is because the burden of insuring against and responding to ongoing and indefinite complaints is inevitably passed on to other builders and home owners through higher insurance premiums and increased building costs.[80]
  3. [50]
    The respondent has statutory responsibilities to ensure proper industry standards[81] and achieve a reasonable balance between the interests of builders and consumers.[82] The purpose of the time limit is to ensure that the Respondent is given notice of the facts and circumstances giving rise to the claim to enable it to take action, to protect the consumer and the insurance fund.[83]
  4. [51]
    Within this context, the appellants have an obligation to act in their own best interests as a consumer.[84] Despite this, the appellants did not adduce any evidence that might indicate a reasonable explanation for the delay.
  5. [52]
    The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.[85] Just because the Appeal Tribunal might have exercised the discretion differently is not a basis to change the decision; it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[86] Nothing of that kind appears here.
  6. [53]
    Grounds of appeal 2 and 4 are without merit.

Exercise of the discretion to refuse payment pursuant to clause 5.1 of the policy (Ground 5)

  1. [54]
    The appellants submitted that the Tribunal erred in refusing the claims on the basis of rectification without approval because:
    1. (a)
      The Tribunal did not make findings on the rectification done without approval;
    2. (b)
      The Tribunal did not make findings about the consequences of rectification without approval;
    3. (c)
      The Tribunal did not take into account relevant considerations of a letter from Terry Seirlis to the respondent of 2 July 2004 and a file note of a conversation with Mr Seirlis on 23 July 2004;
    4. (d)
      The Tribunal did not understand or articulate the basis for the exercise of its discretion;
    5. (e)
      The Tribunal did not consider whether the appellants had claimed any amounts for defects that had already been rectified without prior written approval;
    6. (f)
      The Tribunal erred in finding that Mr Cragg had not approved rectifying the defects;
    7. (g)
      The Tribunal erred in not considering and not making any findings about the appellants’ estoppel case;
    8. (h)
      The Tribunal erred in failing to find that the respondent was estopped from relying upon rectification without approval.
  2. [55]
    Clause 5.1 of the Insurance Policy Conditions confers a discretion to refuse to make a payment where the works have been completed or rectified without prior written approval. The Appeal Tribunal will not lightly interfere with the exercise of the Tribunal’s discretion:

In many cases what Members of this Tribunal are called upon to do involves weighing evidence and, then, applying the law to the findings they make about that evidence. No single factor, or combination of factors, dictates the result and the Member must exercise their discretion to reach a decision. This involves taking all the relevant evidence and law into account, and coming to a decision  which reflects findings of fact that were reasonably open to be made, and a correct application of the law.

Where what is being appealed against is the way a Member exercised a discretion of this kind, the Appeal Tribunal will not interfere unless it can be shown that the Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters. Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[87]

  1. [56]
    We are not satisfied that the Tribunal erred in not applying the correct test[88] or that it was led into an error resulting in substantial injustice. It is not an error for the Tribunal to not explain away each and every item of evidence not considered relevant or of sufficient weight.[89] It is sufficient that the Tribunal’s reasons set out the evidence it considered relevant and the basis for its findings. The Tribunal referred to relevant evidence including the file note of 23 July 2004,[90] correspondence,[91] Mr Cragg’s inspection report[92] and sworn oral testimony from Mr Seirlis and Mr Cragg.[93] Having weighed this evidence, the Tribunal then concluded that the Authority did not give oral approval to proceed and rectify any urgent defects[94] and that it was not possible to discern which of the defects had been caused by the builder or other contractors.[95]  
  2. [57]
    The Tribunal was entitled to not place weight on Mr Seirlis’ oral evidence, the self-serving and equivocal letter of 2 July 2004 and Mr Cragg’s lists in the face of competing evidence, including Mr Cragg’s contemporaneous file note of 23 July 2004 and sworn evidence to support alternative possibilities and its ultimate findings.[96] The Tribunal’s reasons articulate sufficient evidence to support its ultimate findings. 
  3. [58]
    With reference to clause 5.1, the appellants led no evidence of any written approval. Having found that there was not even oral approval for any rectification work and having accepted Mr Cragg’s evidence that at least some of the defects were caused by other contractors, with prejudice flowing from the impossibility of determining causation, it was open for the Tribunal to exercise the discretion under Clause 5.1 to refuse to make a payment. 
  4. [59]
    An appealable error is not demonstrated by merely identifying other possibilities not mentioned or not apparently considered.[97] It is implicit from the Tribunal’s findings that the Appellant’s estoppel case was found wanting. The finding of fact that the Authority did not give oral approval was sufficient to dispose of the appellant’s estoppel case. The Tribunal’s findings were open on the evidence. Attempting to explain away the Tribunal’s findings with a possible alternative inference does not demonstrate error. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because the Tribunal preferred one conclusion to another.[98] Having heard the evidence of both parties, the Tribunal was in the best position to assess credibility.
  5. [60]
    In relation to the claimed estoppel, an estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion.[99] As noted by Davies and Gummow JJ in Formosa v Secretary, Department of Social Security:[100]

Where the issue is one of statutory discretion, the operation of an estoppel may cut across the proper exercise of the discretion reposed by legislation in a specified decision-maker and thus be at odds with what is mandated by the legislation.

Also, in Minister for Immigration and Ethnic Affairs v Kurtovic,[101] Gummow J stated:

The same limitation (upon the doctrine of estoppel) has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in the case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding.

  1. [61]
    Ground 5 of the appeal is without merit.

Whether the right to indemnity was personal to the insured (Grounds 6, 7 and 8)

  1. [62]
    The appellants submitted that the Tribunal erred in finding that the right to indemnity under the statutory insurance scheme was personal to the insured. The key effects of this finding were:
    1. (a)
      the rights of the insured under the statutory policy could not be assigned from the original policy holder, C & E Pty Ltd to Ties Group Pty Ltd; and
    2. (b)
      the rights of the insured under the statutory policy could not devolve on trust from C & E Pty Ltd to TSPD Pty Ltd and then ultimately to UKL Pty Ltd.
  2. [63]
    As with other grounds, the appellants submitted that the Tribunal did not consider all of the appellants’ arguments, or refer to all of the appellants’ authorities and submissions, and made findings without evidence and did not provide reasons for some of the findings. This issue has been addressed above.
  3. [64]
    In any event, in our view the right of indemnity was personal to the insured. Because the insurance policy is a statutory instrument made under the, then, Queensland Building Services Authority Act 1991 (Qld), it is a statutory instrument to which the Acts Interpretation Act applies.[102]  Whether a statutory cause of action is assignable will depend on the terms of the particular statute.[103] The cases cited by the appellants to support their argument for assignability can all be distinguished on the basis that they do not relate to this particular statutory instrument or relate to other rights.[104]
  4. [65]
    Whether the rights of the insured can be assigned under a statutory scheme of insurance requires interpreting the policy conditions in furtherance of the purpose of the Legislature in enacting the scheme. The interpretation that will best achieve the purpose of an Act is preferred.[105] The literal rule of construction must give way to a statutory injunction to prefer a construction that would promote the purpose of an Act to one that does not, particularly where that purpose is set out in the Act.[106]
  5. [66]
    Clause 9.1 of the Policy defines ‘Insured’ as:
    1. (a)
      The owner of the land; or
    2. (b)
      A consumer who has entered into a contract with the contractor to have residential work carried out in Queensland.
  6. [67]
    The expressions ‘owner’ and ‘consumer’ have a meaning derived from the scheme as a whole, and having regard to the objects of the Act set out in section 3:[107]
    1. Objects of Act

The objects of this Act are –

  1. (a)
    to regulate the building industry –

 (i)  to ensure the maintenance of proper standards in the industry; and

  1. (ii)
    to achieve a reasonable balance between the interests of building contractors and consumers; and
  1. (b)
    to provide remedies for defective building work; and
  1. (c)
    to provide support, education and advice for those who undertake building work and consumers.[108]
  1. [68]
    Because the Act has a consumer-specific purpose, the payee is explicitly prescribed. Extending these specific definitions beyond their express words to contemplate a right of assignment is contrary to the creation of rights intended to be confined to the specific consumer who has suffered the loss, or, as allowed by the scheme, a later ‘owner’.  The scheme permits a later ‘owner’ to claim without any assignment of the policy. The effect of extending the definition to permit assignment would be to create a market for the trafficking of these rights, contrary to the scheme’s consumer-protection objectives. This would increase the statutory insurance fund’s liability through exposure to ongoing and indefinite claims by assignees. This increased liability would in turn be passed on to other builders and home owners through higher insurance premiums and increased building costs. That is contrary to the purposes of the Act.
  2. [69]
    We are satisfied that the Tribunal did not err in law in concluding that the rights conferred by the insurance policy are less than a chose in action and are not capable of assignment. The only entity that met the statutory definition of ‘insured’ was C & E, which was not a party to the proceedings. Both Ties Group and UKL were parties to the proceedings. However, neither Ties Group nor UKL became an owner of the lots or entered into a residential contract as a consumer. Accordingly, they were not the ‘insured’. 
  3. [70]
    Similarly, we find no error in the Tribunal’s finding that the state of the evidence was insufficient to show any entitlement to the rights of the insured by UKL. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[109] An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[110] In our view, the Tribunal had evidence upon which it could properly reach the conclusions that it did.[111]
  4. [71]
    The Tribunal referred to relevant deeds of trust and assignment, registered charges and ASIC documents and deficiencies in the evidence.[112] The Tribunal was entitled to adopt a global approach by considering the totality of the evidence with deductive reasoning including hypothesising, postulating and considering alternative possibilities as part of that process.[113] Simply, the deficiencies in the appellants’ evidence could not establish an unbroken chain of devolution of trust property to UKL via TPSD. That finding was open on the evidence (or lack thereof). This is sufficient to dispose of the appellant’s submissions that the rights of the trust devolved to UKL.  
  5. [72]
    The appellants submitted that the Tribunal’s conclusion that a bare right of action cannot be assigned without offending the rule against champerty and maintenance was wrong as a matter of law. The appellants did not elaborate on why the Tribunal’s conclusion was incorrect as a matter of law, other than for reasons we have already addressed when addressing the issue of whether the right of indemnity was personal to the insured. The Tribunal was not required to address all of the appellants’ submissions in reaching its conclusion.[114] We therefore consider these reasons to be dispositive of the issue and do not need to canvass the rule against champerty and maintenance any further for the purposes of determining this appeal.
  6. [73]
    The Appellants also submitted that the Tribunal’s finding on champerty and maintenance was procedurally unfair as the issue was not pleaded and the finding provided no analysis or reasoning. The submission must fail on both grounds.
  7. [74]
    The respondent pleaded the elements of champerty and maintenance in each of their amended Responses and referred to it in its Outline of Issues filed in 2013. The Tribunal’s finding was that “I am of the view that this submission is correct”.[115] Although somewhat arid, we are not satisfied that this is sufficient to amount to an appealable error. The finding referred to the basis upon which it was made, being the acceptance of the respondent’s submission on the point. No miscarriage of justice arises from the acceptance of that submission.[116]
  8. [75]
    Even if the Tribunal’s ruling on champerty and maintenance was incorrect, it would not affect the ultimate decision. The benefit of the policy was not assignable in any event.
  9. [76]
    The appellants also submitted that the Tribunal did not refer or have regard to its submissions in relation to s 477(2)(b) of the Corporations Act 2001 (Cth). Having found that the rights were inalienable, it was not necessary for the Tribunal to decide this point. Regardless, the Tribunal made a finding of fact that no approval had been given as required by the provision even if the rights were otherwise alienable trust property. That finding was open on the evidence and was sufficient to dispose of the issue. The Tribunal was not then required to consider whether a court might consider retrospective approval at some time in the future.[117]
  10. [77]
    For reasons we have already stated, the Tribunal was not required to address all of the appellants’ submissions. An appealable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered: the Tribunal may decide a case in a way that does not require the determination of a particular submission and can therefore be simply put aside.[118] It is implicit from the Tribunal’s application of the provision to its findings of fact that it did not accept the appellant’s submissions on this issue.
  11. [78]
    Grounds of appeal 6, 7 and 8 are rejected.

Did the Tribunal fail to make material findings of fact? (Grounds 3, 9 and 10)

Did the Tribunal err in not making findings about category 1 defects? (Ground 3)

  1. [79]
    The Appellants did not abandon their category 1 claims. Despite this, the Tribunal did not proceed to assess or make findings about the category 1 claims. This was an error.
  2. [80]
    However, we are not satisfied that leave is required to correct any substantial injustice caused by this error. This is because for present purposes the categorisation of the defects as ‘category 1’ (structural or affecting health and safety or function) or ‘category 2’ (non-structural) is only relevant to the time to bring an insurance claim. Under the Insurance Policy Conditions, an insured must claim within three months of a ‘category 1’ defect becoming evident, or seven months from practical completion for a ‘category 2’ defect. 
  3. [81]
    The Tribunal’s failure to make findings about ‘category 1’ defects impacts only the question of whether the claims for those defects were made within time. It does not obviate any of the Tribunal’s other material findings unrelated to the claims being out of time. Each of those other material findings apply whether the defects are category 1 or 2 and of themselves are individually fatal to the Appellants’ claims – even if they were ‘category 1’ defects and within time. The Tribunal’s findings on the other issues were each sufficient to dispose of the review proceedings. In other words, the Tribunal’s error in not referring to ‘category 1’ defects did not affect its ultimate findings.

Did the Tribunal err in failing to determine costs of rectification or loss? (Grounds 9 and 10)

  1. [82]
    The appellants submitted that the Tribunal erred in failing to make any determination about the costs of rectification and any assessment of the loss in value of the lots. They said that despite expert evidence from the parties on both measures of damage, the Tribunal simply determined that it was not satisfied with that evidence and refused to make any further determination.
  2. [83]
    In our view, the Tribunal correctly determined that the appellants had no right to claim under the policy of insurance. Having determined this, it was unnecessary for the Tribunal to determine quantum. The Tribunal was not required to make any determination about loss because ultimately the question of loss did not arise. 
  3. [84]
    Contrary to the appellant’s submission, the Tribunal did not make a finding that loss in value must be commensurate with the cost of rectification. The relevant passage of the Tribunal’s reasons reads:

At a fundamental level, I have considerable difficulty with the contention that category 2 defects which, at worst, have been assessed as costing $77,343.75 to rectify (in Lot 5), could ever become the sole basis for a rebate on the Lot 5 sale price of as much as $375,450. I think the suggestion incredulous, and I reject it.[119]

  1. [85]
    It is clear from the Tribunal’s reasons that the learned Member posits this as one factor in his reasoning leading to his ultimate finding. In the preceding and ensuing paragraphs, the learned Member cites other factors. The Tribunal had evidence to which it ascribed varying weight. It was entirely appropriate for the Tribunal to posit alternative explanations for the dichotomy in the evidence. It is not an appealable error.
  2. [86]
    The appellant’s submission that notwithstanding the detailed evidence about loss, the Tribunal failed to make any determination is not correct. Rather, the Tribunal made a determination that quantum had not been proven.[120] The Tribunal arrived at this conclusion following a detailed analysis of invoices, quotes, memoranda, defects lists and the evidence of witnesses including Mr Seirlis, Mr Cragg, Mr Cosker, Mr Brunner, Mr Johnson, Mr Cox and Mr Smith.
  3. [87]
    Having considered this evidence in detail and rejecting it, the Tribunal was not satisfied that it was sufficient to prove causation and loss.[121] The Tribunal was entitled to assess credit based on its own observations of the witnesses when they gave oral testimony. The Tribunal is in a better position than the Appeal Tribunal to make this assessment.
  4. [88]
    It was open to the Tribunal to reject this evidence. Having done so, the Tribunal’s determination on quantum inexorably follows. 
  5. [89]
    Grounds of appeal 3, 9 and 10 are without merit.

Conclusion

  1. [90]
    The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[122] The Tribunal’s findings were open on the evidence. Nothing in the material demonstrates that the Tribunal should have adopted a different view of the facts. The Tribunal had evidence upon which it could properly reach its conclusions.[123]
  2. [91]
    Having read the transcript and having considered the evidence, we find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.
  3. [92]
    To the extent that leave to appeal is required, the appellants have not demonstrated any error by the Tribunal that would cause a ‘substantial injustice’ if leave was not granted. No question of general public importance arises: the Tribunal’s findings were fact specific. There is no reasonable prospect of substantive relief on appeal. The appellants have not established grounds to grant leave to appeal. The Tribunal’s decision was appropriate and we can find no reason to come to a different view.
  4. [93]
    Leave to appeal is refused and the appeal is dismissed.

Footnotes

[1]  The relevant reprint of the QBSA Act is Reprint 7 and Reprint 7D of the QBSA Regulation 1992.

[2]  The matters were dismissed pursuant to the Commercial and Consumer Tribunal Act 2003 (Qld), s 48, s 104.

[3] Seirlis v Queensland Building Services Authority [2011] QDC 107, [27], [42].

[4]  QCAT then held jurisdiction to review decisions by the QBSA to disallow insurance claims under the Queensland Building Services Authority Act 1991 (Qld), s 86(1)(h). That jurisdiction continues under the current Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(h).

[5] Waterford v The Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 341.

[6] Jimenez v Sternlight Investments [2010] QCATA 29, [26].

[7] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 268.

[8] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act’), s 142(3)(b).

[9]  Ibid, s 147(2).

[10] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[11] Cachia v Grech [2009] NSWCA 232, 2.

[12] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[13] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[14] Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).

[15]  Ibid.

[16] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

[17] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46].

[18]  QCAT Act, s 28(2).

[19]  Ibid, s 28(3)(a).

[20]  Ibid, s 28(3)(d).

[21] Creek v Raine & Horne Mossman [2011] QCATA 226, [13] citing with approval Aon Risk Services Australia Ltd v Australian National University (20090 239 CLR 175, 217.

[22]  Ibid

[23]  QCAT Act, s 3(b).

[24]  King v ASIC [2018] QCA 352, [39]-[44].

[25]   [2018] QCA 352, [43].

[26]   (1997) 48 NSWLR 430.

[27]   Ibid, 443-444.

[28]  QCAT Act, s 4(c).

[29] Armstrong v Kawana Island Retirement Village [2011] QCATA 324, [13].

[30] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[31] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271.

[32]  Ibid, 272.

[33]  QCAT Act, s 28(3)(a).

[34] Kioa v West (1985) 159 CLR 550, 584-585.

[35] Creek v Raine & Horne Mossman [2011] QCATA 226, [15] (Wilson J).

[36] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46].

[37]  Unlike Waterways Authority v Fitzgibbon (2005) 221 ALR 402.

[38] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 474.

[39] Mike Brennan Motors Pty Ltd v Aussie Car Loans [2010] QCA 174; Expectation v PRD Realty (2004) 140 FCR 17; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Monie v Commonwealth (2005) 63 NSWLR 729.

[40] Re JRL; Ex parte CJL (1986) 161 CLR 242, 352; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

[41] Ivory v Telstra Corp Ltd [2002] QCA 457, [70] citing with approval Johnson v Johnson (2001) 201 CLR 488.

[42]   Ibid.

[43]  QCAT Act, s 4(c).

[44]  Ibid,, s 28(3)(b).

[45] Smith v Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117.

[46]  QCAT Act, s 28(3)(c).

[47]  Ibid, s 28(3)(e).

[48] Ivory v Telstra Corp Ltd [2002] QCA 457, [61].

[49] Gollan v Vaccaneo [2013] QCATA 228.

[50] Schepis & Anor v QM Properties Pty Ltd [2012] QCAT 197.

[51] Galea v Galea (1990) 19 NSWLR 263, 284 (Meagher JA).

[52] Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].

[53] Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33].

[54] Mansoor & Rezaee v QBSA [2011] QCAT 53, [48].

[55] Vakauta v Kelly (1989) 167 CLR 568.

[56] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [39].

[57]  Ibid, [78], [119], [129], [132] and [145]

[58] Fox v Percy (2003) 214 CLR 118, 125-6.

[59] Waterford v The Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 341.

[60] Chambers v Jobling (1986) 7 NSWLR 1, 10.

[61] Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-6.

[62] Fox v Percy (2003) 214 CLR 118, 125-6.

[63] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270.

[64]   See also Ibid, 271: ‘… the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion’.

[65] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [79] – [84].

[66] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 274.

[67] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [28], [29].

[68] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269-271.

[69] Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.

[70] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[71] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [67] – [78].

[72] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280.

[73] Slater v Wilkes [2012] QCATA 12, [6].

[74] C&E Pty Ltd v CMC Brisbane Pty Ltd (Administrators appointed), [2004] QCA 60.

[75] Yager v R (1977) 139 CLR 28, 43 (Mason J).

[76] R v Scott (1990) 20 NSWLR 72, 77 (Gleeson CJ, with whom Hunt and Allen JJ agreed).

[77] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [69] to [77].

[78] Mansoor & Rezaee v Queensland Building Services Authority [2011] QCAT 53, [48].

[79]  Ibid, [46].

[80] Review of the Limitation of Actions Act 1974 (Qld), Report No. 53, Queensland Law Reform Commission September 1998, p 8, citing BSHA v Taylor (1996) 186 CLR 541, 553 (McHugh J).

[81] Queensland Building Services Act 1991 (Qld), s 3(a)(i).

[82]  Ibid, s 3(a)(ii).

[83] Edmonds v Queensland Building Services Authority [2003] QBT 22, [76].

[84] Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.

[85] House v The King (1936) 55 CLR 499, 504.

[86] Lovell v Lovell (1950) 81 CLR 513.

[87] Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244, [30], [31] (Wilson J), citing with approval Jago v District Court of NSW (1989) 168 CLR 23, 75-6, House v The King (1936) 55 CLR 499, 504 and Lovell v Lovell (1950) 81 CLR 513.

[88] Jensen v Queensland Building Services Authority [1996] QBT 198; Searle v Queensland Building Services Authority [2007] QCCTB 182.

[89] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271.

[90] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [116].

[91]  Ibid, [115].

[92]  Ibid, [117].

[93]  Ibid, [111], [112], [118].

[94]  Ibid, [118].

[95]  Ibid, [119].

[96] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269-271.

[97]  Ibid, 270.

[98] Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.

[99]  Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568, 577 per Windeyer J; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, 125 per Davies and Gummow JJ; Minister for Immigration and Ethnic Affairs v Polat (1995) 98 FCR 98, 107 per Davies and Branson JJ.

[100]   (1988) 46 FCR 117, 125.

[101]   (1990) 21 FCR 193, 210.

[102] Lange v Queensland Building Services Authority [2012] 2 Qd R 457, 463.

[103]  See for example QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186; NT of Australia v Public Trustee of NT (2001) 165 FLR 42; Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd (2006) 236 ALR 720; Pentridge Village Pty Ltd v Capital Finance Australia Ltd [2018] VSC 633.

[104]    See for example Commonwealth v Vero Insurance (2012) 291 ALR 563; Callaghan v Dominion Insurance Co. Ltd [1997] 2 Lloyd’s Rep 541.

[105] Statutory Instruments Act 1992 (Qld), s 14(1); Acts Interpretation Act 1954 (Qld), s 14A. See also Lange v Queensland Building Services Authority [2012] 2 Qd R 457, [26].

[106] Mills v Meeking (1990) 169 CLR 214, 235; Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422, [11].

[107] PJS Development Pty Ltd v Tong [2003] QSC 337, [5] and [8] (McMurdo J, as Her Honour then was).

[108]  QBSA Act, s 3.

[109] Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118,125-126.

[110] Chambers v Jobling (1986) 7 NSWLR 1, 10. 

[111] Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826.

[112] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [44], [85], [87], [88], [95], [98], [104], [105], [106], [107], [108].

[113] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 274.

[114] King & Ors v ASIC [2018] QCA 352, [43] – [44], citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[115] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [100].

[116] King & Ors v ASIC [2018] QCA 352, [41].

[117] ASIC v Re Forestview Nominees Pty Ltd 92007) 243 ALR 532.

[118] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[119] Seirlis & Ors v Queensland Building and Construction Commission [2018] QCAT 291, [160].

[120]  Ibid, [166], unlike the situation described in Commonwealth v Amman Aviation (1991) 174 CLR 64.

[121]  Ibid, [120]–[164].

[122] Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.

[123] Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826.

Close

Editorial Notes

  • Published Case Name:

    Terry Seirlis & Ors v Queensland Building and Construction Commission

  • Shortened Case Name:

    Seirlis v Queensland Building and Construction Commission

  • MNC:

    [2020] QCATA 37

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Hughes

  • Date:

    03 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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