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  • Unreported Judgment

Cooper v Jezer Construction Group Pty Ltd

 

[2003] QCA 335

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

DC No 1546 of 2002

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

DELIVERED EX TEMPORE ON:


1 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2003

JUDGES:

de Jersey CJ, Williams JA and Mackenzie J

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

ORDER:

Application for leave to appeal refused with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where original decision of Queensland Building Tribunal – where respondent successfully appealed to District Court – where appellant seeks leave to appeal from District Court decision – where amount in dispute is small – whether an issue of sufficient general importance existed to warrant the exercise of discretion in favour of granting leave to appeal

District Court Act 1967 (Qld), s 118

St Vincent’s Hospital Toowoomba Ltd v Hardy [1997] QCA 364; Appeal No 7477 of 1997, 22 September 1997, cited

COUNSEL:

R Jones for the applicants

D A Skennar for the respondent

SOLICITORS:

Lambert & Ho Lawyers for the applicants

Conomos Lawyers for the respondent

 

WILLIAMS JA:  Consequent upon negotiations which took place in January 2000, the applicants undertook to perform work with respect to the construction of residential premises and subsequently carried out work on the building.  Disputes arose, and in consequence on 13 August 2001 the applicants commenced proceedings against the respondent before the Queensland Building Tribunal.  In the course of the hearing the claim was amended so that the Tribunal member was called upon to adjudicate upon a claim for $80,430.51.

 

The Tribunal member published substantial reasons on 8 April 2002 and determined that the respondent should pay the applicants the sum of $22,998.  From that decision the respondent appealed to the District Court, pursuant to section 92 of the Queensland Building Tribunal Act 2000.  That was an appeal as of right and was, "by way of re-hearing unaffected by the Tribunal's decision on material before the Tribunal and any further evidence allowed by the District Court".  For reasons delivered on 28 May 2003, the learned District Court Judge allowed the appeal and set aside the judgment of the Queensland Building Tribunal.

 

The applicants now seek leave pursuant to section 118(3) of the District Court Act 1967 to appeal to this Court.  An order is sought reinstating the judgment of the Tribunal.  As was said in St Vincent's Hospital Toowoomba Ltd v. Hardy (1997) QCA 364, this Court has a discretionary power to give leave which is not limited in any way.  Each side has submitted an outline of argument dealing with the substantive issues which would be raised if leave to appeal were granted.

 

The central issue in the proceeding is whether the respondent contracted as agent for a disclosed principal, or is personally liable.  There is no doubt as to the relevant legal principles.  They are well-established.  The question to be decided below was how those principles applied to the rather special facts of this case.  Any consideration by this Court would be focused primarily on the facts and not on matters of legal principle.  The legislation has expressly provided for an appeal as of right to the District Court and that carries the implication that such an appeal should ordinarily dispose of the matter.

 

In the present case, the amount in dispute is small and no issue of general importance has been identified.  It has frequently been observed that it is not necessarily sufficient to assert that the decision sought to be appealed against is arguably wrong.  Where the amount in dispute is small and there has already been an appeal, this Court would ordinarily only grant leave where some issue was identified warranting the exercise of discretion in favour of granting leave.

 

It is sufficient for present purposes to say that the material before the Court does not establish a ground for exercising the discretion in favour of granting leave.  Leave to appeal should be refused.

 

THE CHIEF JUSTICE:  I agree.

 

MACKENZIE J:  I agree.

 

THE CHIEF JUSTICE:  The application is dismissed.

 

MS SKENNAR:  I ask for the costs of the application, your Honours.

 

THE CHIEF JUSTICE:  With costs to be assessed.

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Editorial Notes

  • Published Case Name:

    Cooper & Anor v Jezer Construction Group P/L

  • Shortened Case Name:

    Cooper v Jezer Construction Group Pty Ltd

  • MNC:

    [2003] QCA 335

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Williams JA, Mackenzie J

  • Date:

    01 Aug 2003

Litigation History

No Litigation History

Appeal Status

No Status