Richards v Dwyer Corporation Pty Ltd
[2004] QCA 94
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- Unreported Judgment
- Appeal Determined (QCA)
- Richards v Dwyer Corporation Pty Ltd[2004] QCA 94
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Richards v Dwyer Corporation Pty Ltd[2004] QCA 94
Richards v Dwyer Corporation Pty Ltd[2004] QCA 94
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 97 of 2003 |
Court of Appeal | |
PROCEEDING: | Application for leave s 118 DCA (Civil) |
ORIGINATING COURT: | |
DELIVERED EXTEMPORE ON: | 1 April 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 April 2004 |
JUDGES: | McMurdo P, McPherson JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where notice of appeal filed from decision of District Court judge on appeal from Queensland Building Tribunal – where appeal related to $8,800 held in Building Tribunal's trust account pursuant to settlement agreement – whether party required to make application seeking leave to appeal CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where dispute over building contract settled by way of settlement agreement – whether parties also had to comply with implied conditions of original contract to fulfil settlement agreement – whether parties were attempting to contract out of statutory obligations under the Building Act through settlement agreement – whether builder had to have issued certificate of approval from local authority under Building Act to be entitled to release of funds from Building Tribunal trust account pursuant to compliance with settlement agreement Building Act 1975 (Qld), s 4 District Court of Queensland Act 1967 (Qld), s 118 Standard Building Regulation 1993 (Qld), Part 8 Praxis Pty Ltd v Hewbridge Pty Ltd & Anor [2004] QCA 79; Appeal No 547 of 2004, 26 March 2004 |
COUNSEL: | M Morrisey for the applicant W Dwyer (director of the respondent company), with leave, for the respondent |
SOLICITORS: | The applicant appeared on his own behalf W Dwyer (director of the respondent company), with leave, for the respondent |
THE PRESIDENT: On 30 October 2003 a District Court Judge dismissed an appeal from a decision of the Queensland Building Tribunal ("the Tribunal") given on 17 December 2002 ordering that money in the trust account of the Tribunal be dispersed as to $8,800 to Kevin Frederick Richards ("Richards") and as to $1,200 to Dwyer Corporation Pty Ltd ("Dwyer").
Richards lodged a notice of appeal from the decision of the District Court Judge. The appellant's outline of argument contends that an appeal lies under s 118(2)(b) District Court Act 1967 (Qld). That section provides:
"A party who is dissatisfied with a final judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment
(a) is given for an amount equal to or more than the Magistrates Courts jurisdictional limit, or
(b) relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit."
As this was not an appeal from the District Court in its original jurisdiction no appeal lies to this Court under that section. In any case the appeal relates only to $8,800, an amount well within the Magistrates Courts jurisdictional limit. It does not relate to a claim for or relating to property of a value equal to or more than Magistrates Courts jurisdictional limit: see Praxis Pty Ltd v Hewbridge Pty Ltd & Anor [2004] QCA 79; Appeal No 547 of 2004, 26 March 2004, [6]-[8].
Richards is only entitled to apply for leave to appeal under section 118(3) of that Act.
Any application for leave to appeal is now out of time and Richards would require an extension of time to apply for leave to appeal. I would be prepared to treat the appeal as an application for leave to appeal filed within time in the circumstances here where the respondent would suffer no real prejudice. To succeed in this application for leave to appeal Richards has the difficult task of showing some reason justifying the grant of leave in circumstances where he has already had the benefit of a decision of the Queensland Building Tribunal and a subsequent appeal to the District Court in a matter involving $8,800.
The learned primary Judge in his reasons on the appeal referred to the lengthy history of this matter which commenced in the Tribunal on 11 August 1992. In 1993 a member of the Tribunal held that the original building contract between Richards and Dwyer, made in October 1991, had not then been terminated. On 24 January 1994 Richards and Dwyer entered into a written settlement agreement over their dispute arising out of that contract.
Under the settlement agreement Dwyer agreed to complete identified work to the satisfaction of either an inspector from the Queensland Building Services Authority ("QBSA") or a Mr Morrison (Mr Morrison is the principal of Morrison Geo-Technic Pty Limited) or both of them. The Settlement Agreement provided that before Dwyer undertook to rectify the work Richards would deposit $10,000 in the trust account of the Tribunal as security and upon certification by Morrison and the QBSA that the work identified in the agreement had been completed to their satisfaction, the Tribunal would pay $10,000 to Dwyer. The final clause, clause 8 of the agreement, provided:
"The parties each agree that, upon completion of the terms of this agreement, they shall mutually release and discharge each of them for and in respect of all claims suits or actions arising out of the design and construction by Dwyer of the premises referred to in the contract entered into by the parties on 25 October 1991."
Dwyer subsequently did the work referred to in the settlement agreement and it was found to be satisfactory by Mr Morrison and Mr Mitchell, an inspector for the QBSA. Richards paid the $10,000 into the Tribunal's trust account only in August 1997. Dwyer applied to have money paid out to him by the Tribunal in accordance with the Settlement Agreement.
The issue in the appeal to the District Court Judge and the issue sought to be aired if leave to appeal were granted is whether under the terms of settlement it was also necessary for Dwyer to secure the approval of the local authority which issues a certificate of approval under the Building Act 1975 (Qld) and that under the original building contract the builder was obliged to secure such a certificate of approval. The Tribunal rejected Richard's contention, see Dwyer Corporation Pty Ltd v Richards [2002] QBT 217; 17 December 2002, [39] and [40].
The learned primary judge found that even assuming that at the time the Settlement Agreement was entered into the original building contract between the parties was still on foot. It followed from clause 8 of the Settlement Agreement that once the builder had done the work identified in the terms of the settlement it was discharged by Richards from all claims arising out of the original building contract. Dwyer having completed the work set out in the settlement agreement to the satisfaction of the QBSA and Morrison, then because of clause 8 of the Settlement Agreement, neither party had any claim in respect of the building contract and that was clearly the objective intention of the parties when entering into the terms of the Settlement Agreement. The learned primary judge was unpersuaded that under the terms of the Settlement Agreement there was any further obligation on the builder, and agreed with the Tribunal member's conclusion, dismissing the appeal.
Mr Morrisey on behalf of Richards argues that the Settlement Agreement effectively meant that the parties attempted to contract out of their legal and statutory obligations under the Building Act 1975 (Qld) to obtain a final certificate from the local authority, something they were prohibited from doing.
I am not persuaded there is any merit in that contention. The original contract was made in October 1991. The Settlement Agreement was entered into in 1994 and was a quite separate and very specific agreement. It does not seem to me to have the widespread effect contended for by Mr Morrisey.
The applicant has failed to demonstrate any reason warranting the granting of leave to appeal in this case; nor has he demonstrated any flaw in the learned primary judge's reasons for dismissing the appeal from the Tribunal. I would make the following orders:
- Treat the notice of appeal filed on 25 November 2003 as an application for leave to appeal, making any necessary extension of time in which to file such an application.
- Dismiss the application for leave to appeal with costs to be assessed.
McPHERSON JA: I agree. What was submitted by Mr Morrisey about section 118(2)(b) of the District Court Act, namely that the original contract out of which this small claim for $8,800 now arises was a claim involving an amount of or to the value of $190,000, is in my opinion directly opposed to what was said by this Court in Praxis v Hewbridge [2004] QCA 79 delivered on 9 March 2004.
One of the obvious legislative purposes in imposing the requirement of obtaining leave to appeal is to ensure that the parties are not put to the considerable cost, in time as well as money, of having their disputes about small amounts dragged through three tribunals after it has already been resolved by the first two.
This appeal and any associated application for leave to appeal should in my opinion be dismissed with costs.
PHILIPPIDES J: I also agree with the reasons given by the President and Justice McPherson that leave to appeal should not be granted and I agree with the orders proposed.
THE PRESIDENT: The orders are as I have set out earlier.