Habul v Graham[1999] QCA 417

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

JONES J

Appeal No 7483 of 1999

BRISBANE

DATE 04/10/99

JUDGMENT

McPHERSON JA: This is an application under s. 118(3) of the District Courts Act for leave to appeal against a decision of a District Court Judge. 

The respondent David Graham is a plumber who installed some roof guttering at residential premises in Annerley. The premises were being erected there on behalf of the Queensland Housing Commission by the applicant, who is Omar Habul, who was the builder. 

The argument relates to the dimensions of the gutter used or installed by the respondent David Graham. It is said to have been not in accordance with the relevant standard and the wrong size for the job in hand. It is said also to have caused problems with rainwater, although we were told from the Bar table today that there had been no such problems for two years after some repair work was done on the guttering.

It did, it seems, take some time for the respondent to fix it, and that was a matter which was considered in the course of the reasons below. The respondent Graham was initially not paid by the applicant builder and he made a claim against the builder for payment. The total originally claimed was some $11,000; the matter was referred to the Queensland Building Tribunal; and the Tribunal member on 23 January 1998 found that there were some deficiencies, or unsatisfactory aspects, in relation to the work done. In the result, the full claim was not allowed but only part of it in an amount of $6,159.95. As I understand the matter that may have included a sum for costs as well.

The applicant builder was dissatisfied with this result and he appealed against the Tribunal decision to a Judge of the District Court. The appeal was heard in the District Court and ultimately dismissed, with the Judge giving reasons for his decision.

It is now sought by the applicant builder to appeal against that decision, and to do so on two grounds. One is that the District Court Judge ought, pursuant to s. 94(4) of the Queensland Building Services Authority Act, to have remitted the matter for determination in the District Court. That is a somewhat surprising submission because it is clear from a perusal of the subsection in question that the District Court in circumstances like these is invested with a discretion to do one of several things including the remission of the matter to the Tribunal. What s. 94(4) says is that, on appeal, the District Court may: (a) confirm, annul, vary or reverse the Tribunal's determination; or (b) remit the case to the Tribunal for further hearing; or (c) make consequential or ancillary orders or directions.

It is plain from the use of the word "may" that there is no mandatory obligation on the part of the District Court to remit the case. I notice that Mr Coulsen of counsel who appeared on the application before us did not specifically refer to that ground of decision.

The second ground for appealing or obtaining leave to appeal that is put before us is, to my mind, one of fact or, at most, one of mixed fact and law. It is said that the girth of the gutter that is required to be installed in circumstances like these is 450 millimetres. It is a valley gutter and therefore there may be some argument as to whether one measures it around the girth or across the width as such.

It is submitted that the relevant standard requires that it be the girth that is used as the appropriate dimension, and that an error was made in the reasons of the Judge, and perhaps also of the Tribunal, for treating the girth as one required to be only 400 millimetres. There is, however, no identifiable problem or question or difficulty of fact or law in recognising the existence of a difference between these two methods of measurement, or between 400 millimetres and 450 millimetres. At best for the applicant, the matter raises only a simple inquiry as to how a gutter is to be measured in terms of the standard.

Mr Coulsen candidly conceded that the matter might have been made more clear by evidence in the original proceedings; but, however the problem has arisen, if there is an error in this case, it is not such as to induce the Court to grant leave to appeal in respect of it. There have, as I have already said, been two fairly full hearings already. There is now this application before us, and if leave is granted, there will then be an appeal and possibly a remit back to the Tribunal for a further hearing.

The amount involved is, as far as I can see, only some $6,000, or that is the difference involved. It seems to me that it would be quite inappropriate to permit the matter to go further. As a matter of discretion therefore I would not grant leave to appeal in this case.

THE CHIEF JUSTICE: I agree.

JONES J: I also agree.

THE CHIEF JUSTICE: The application is refused.