Surrey v Sand and Surf Design Pty Ltd
[2015] QCA 274
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- Surrey v Sand and Surf Design Pty Ltd[2015] QCA 274
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Surrey v Sand and Surf Design Pty Ltd[2015] QCA 274
Surrey v Sand and Surf Design Pty Ltd[2015] QCA 274
CITATION: | Surrey & Anor v Sand and Surf Design Pty Ltd [2015] QCA 274 |
PARTIES: | KEVIN SURREY ALEXIS SURREY |
FILE NO/S: | Appeal No 8865 of 2014 QCAT No 209 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Queensland Civil and Administrative Tribunal Act |
ORIGINATING COURT: | Queensland Civil and Administrative Tribunal at Brisbane – [2014] QCATA 225 |
DELIVERED ON: | 15 December 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 July 2015 |
JUDGES: | Holmes CJ and Douglas and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicants seek leave to appeal under s 150(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) which set aside the decision of a Tribunal member – where s 150(2)(b) requires that an appeal be made against a “final decision” of the Tribunal – where a “final decision” is defined as a “decision that finally decides the matters the subject of the proceeding” – where the respondent asserts that the Appeal Tribunal’s decision was no more than a determination of a preliminary issue, rendering the application for leave to appeal incompetent – whether a “final decision” must resolve every aspect of a proceeding to amount to a “final decision” APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINT AND OBJECTIONS NOT TAKEN BELOW – where the applicants claim that they were denied natural justice because the Appeal Tribunal failed to consider and determine an argument as to whether there was evidence on which the Tribunal member could make a particular finding of fact – whether the applicants had actually made the argument about the particular finding – whether the Appeal Tribunal addressed the argument – whether there was evidence to support the Tribunal member’s finding – whether the applicants were denied natural justice APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the applicants claimed the Appeal Tribunal had misstated the law as to the proper approach to first instance finding of facts and had consequently failed to reconsider certain findings of fact by the Tribunal member – whether the Appeal Tribunal misapplied Fox v Percy (2003) 214 CLR 118 – whether the Appeal Tribunal erred in declining to interfere with certain findings of the Tribunal APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – POINT AND OBJECTIONS NOT TAKEN BELOW – where the applicants claim the Appeal Tribunal failed to have regard to or alternatively failed to give appropriate weight to their evidence – whether the Appeal Tribunal disregarded or failed to give appropriate weight to the applicants’ evidence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the applicants claim the Appeal Tribunal erred in disturbing a factual conclusion of the Tribunal member that the respondent did not have a reasonable basis to issue certain notices – whether the Appeal Tribunal’s conclusions entailed any error of law Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2)(b), Schedule 3 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered Miller & Anor v Lida Build Pty Ltd [2013] QCA 332, cited |
COUNSEL: | S M McNeil for the applicants S E Seefeld for the respondent |
SOLICITORS: | CDI Lawyers for the applicants Mills Oakley Lawyers for the respondent |
[1] HOLMES CJ: The applicants, Mr and Mrs Surrey, seek leave to appeal under s 150(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) which set aside the decision of a Tribunal member. The appeal to this Court may be brought only on a question of law and with leave.[1]
The QCAT proceedings and the leave application to this Court
[2] The QCAT proceedings were brought on an application by the respondent, Sand and Surf Design Pty Ltd, for decision of a domestic building dispute.[2] The Surreys had contracted with Sand and Surf Design for the building of a kit home; both parties, first the Surreys, and then Sand and Surf Design, had purported to terminate the contract. Sand and Surf Design sought a determination and declaration that the building contract was unlawfully terminated by the Surreys and lawfully terminated by it, and damages arising from the Surreys’ alleged unlawful termination. The Surreys filed a response and counter-application asserting their entitlement to terminate the contract and seeking damages “due to frivolous accusations, delays, loss of income and fees attributed to Sand and Surf Design fabricated and misleading claims”.
[3] In QCAT, an order was made for the hearing of a “preliminary issue”: whether Sand and Surf Design had lawfully terminated the building contract. A Tribunal member, having conducted that hearing, decided the point against the company. That decision was reversed by the Appeal Tribunal, which declared that Sand and Surf Design had lawfully terminated the contract.
[4] The Surreys seek leave to appeal on the grounds that the Appeal Tribunal failed to afford them natural justice, in failing to consider an issue they had raised as to error in a finding by the Tribunal member which was not supported by evidence; that it erred in its reconsideration of the Tribunal member’s findings and in making findings of its own which were not open; that it failed to have proper regard to their evidence and had wrongly disturbed a factual conclusion of the Tribunal member; and that in consequence of those errors it wrongly set aside the Tribunal member’s finding that Sand and Surf Design had unlawfully terminated the contract.
[5] For present purposes, at least, the Appeal Tribunal’s decision, in order to be appellable, must be a “final decision”,[3] which is defined as meaning a “decision that finally decides the matters the subject of the proceeding”.[4] Sand and Surf Design argues that the Appeal Tribunal’s decision was not a final decision, so that the application for leave to appeal is in any event incompetent.
The dealings between the parties
[6] Sand and Surf Design had laid a pier footing system for the proposed kit home, warning Mr and Mrs Surrey by email dated 31 July 2013 that the concrete in the footings required a minimum of 28 days to cure before heavy machinery was used on the site. Under the terms of the contract, entry on the building site was subject to Sand and Surf Design’s authorisation; it would not allow any machinery on the site “until further notice”. However, about 30‑31 August 2013, the Surreys had work undertaken by a bobcat on the site, without seeking Sand and Surf Design’s permission. A representative of the company, Mr Ferguson, went to the site on 13 September 2013 and saw machinery track marks close to the pier footings. He gave evidence of observing that support brackets and columns supporting the pier system were not in their original positions. Mr Ferguson, a builder, said that the shifting of the support brackets indicated to him that there was movement of the piers into which they were cast.
[7] Mr Ferguson obtained an engineer’s report which advised that without a physical inspection of the buried parts of the pier footing system, the existence of any damage could not be confirmed. To remove any doubt as to the piers’ integrity, each of the affected piers “would need to be exposed, assessed and rectified, or removed and replaced”. Mr Ferguson explained in giving evidence that his understanding of the advice was that the state of the footings could not be determined without destructive testing. By destructive testing, he meant either exposing them to determine that there was no damage or using an apparatus to test them. After such testing had been done, the footings would not be reusable. Somewhat mysteriously, he said that if the footings were exposed they became “void”.
[8] Mr and Mrs Surrey also obtained an engineer’s report, according to which it was implausible to suppose that the minor earthworks undertaken on the site could have caused any significant lateral movement of the piers; and if there were misalignment of the above‑ground brackets and posts, it was more likely caused by the contractor’s errors in positioning them or disturbing them in the clean-up process.
[9] Because of Mr Ferguson’s concern about the structural integrity of the piers, Sand and Surf Design on 20 September 2013 gave the Surreys a Notice to Remedy Breach, alleging breach of a clause of the contract requiring them not to “obstruct, interfere with or hinder” the carrying out of the contracted work and requiring them to give an undertaking not to do so. In addition, a Notice of Variation was issued, the relevant variation being the removal and replacement of 14 concrete piers (out of a total of 49). The reason given in the Notice for seeking the variation was that Sand and Surf Design was unable to confirm the adequacy of the piers without removing and reinstalling them, so that it was unable to provide the required statutory warranty that the finished works would be suitable for occupation. The Surreys signed the undertaking but refused to accept the proposed variation.
[10] Sand and Surf Design, alleging a breach of the contract in the unreasonable withholding of consent to the variation, on 11 October 2013 gave a Notice of Suspension of the Works and Notice of Intention to Terminate the Contract unless the Surreys remedied their breach (their refusal to sign the Notice of Variation) within 10 days. In a letter of 16 October 2013, the company’s solicitors advised that their client was prepared to continue with the work if the breach was remedied within the 10 business days specified by the notices.
[11] On 17 October 2013, Mr and Mrs Surrey gave notice that they had terminated the contract. Their solicitor’s letter alleged an unlawful repudiation by Sand and Surf Design; its intention not to complete the contract was said to be evidenced by its conduct in:
“(a)failing to progress the construction since early August 2013;
(b)wrongly claiming that our clients had caused damage (including structural damage) to the piers of the construction without obtaining any engineering advice as to whether there was any proper basis for that view;
(c)refusing to arrange for an engineer to attend site with our clients' engineer to inspect the piers and to discuss your client's claim;
(d)wrongly stopping work purportedly on the basis of the claimed damage;
(e)demanding that our clients sign a variation document requiring our clients to pay the sum of $42,660.00 for work not required to be carried out and in circumstances where the variation document provided no break down as to how the specific sum of $42,660.00 has been calculated so that our clients could make an assessment as to whether the figure was reasonable or not (if in fact the varied, work claimed was required to be undertaken); and
(f)unlawfully suspending works on the basis of our clients' reasonable refusal to sign the variation.”
[12] Sand and Surf Design denied having repudiated the contract, asserting instead that the Surreys had done so by their solicitor’s letter of 17 October 2013. On the basis of that allegedly unlawful repudiation, with, as an alternative ground, the failure to remedy the breach constituted by the refusal to consent to the variation, the company itself on 28 October 2013 purported to terminate the contract.
The Tribunal member’s findings
[13] The Tribunal member described the question before her as whether it was reasonable for Sand and Surf Design to issue the 20 September Notice to Remedy Breach. (She appears to have regarded that Notice to Remedy Breach as requiring the Surreys to sign the variation, when in fact the latter was a distinct requirement.) The member was satisfied that the track marks which Mr Ferguson saw were the result of unauthorised earthworks undertaken by Mr and Mrs Surrey at the end of August 2013. She was further satisfied that the bobcat had disturbed the pier and footing system as Mr Ferguson described in his statement. However, the Tribunal member found that Sand and Surf Design could not prove that there was any compromise to the integrity of the pier system. In the absence of testing, she could not be satisfied that the issuing of the breach notice was reasonable and on that basis concluded that the contract had not been lawfully terminated by Sand and Surf Design. She made a declaration to that effect.
The proceedings in the Appeal Tribunal
[14] Sand and Surf Design appealed to the Appeal Tribunal, alleging a denial of natural justice in that the Tribunal member had wrongly focused on whether it was reasonable for Sand and Surf Design to issue the Notice to Remedy Breach, rather than considering the bases for termination on which it had relied.
[15] The appeal to the Appeal Tribunal was available by right on the question of law and by leave on a question of fact or mixed law and fact.[5] The Appeal Tribunal accepted that the interpretation of the contract and the effect of the notices given amounted to questions of law, and that, to the extent that a consideration of the Surreys’ conduct in terminating the contract might involve questions of fact, leave to appeal should be granted.
[16] The Appeal Tribunal concluded, firstly, that even if Sand and Surf Design’s case depended on the 20 September 2013 Notice to Remedy, it was reasonable for it to have given that notice, because there was evidence of earthworks having been undertaken on the site without the company’s authority. Indeed, the Surreys had acknowledged as much by signing the undertaking. The Tribunal member had erred in failing to consider the reasonableness of Sand and Surf Design’s conduct in light of the subsequent chain of events: the giving of the October Notice of Intention to Terminate and Notice to Suspend Works, the Surreys’ purported termination on 17 October and the company’s purported termination on 28 October. In failing to have regard to those matters, the Tribunal member had decided the case on a basis for which neither party contended.
[17] In light of the Tribunal member’s finding of fact, supported by evidence, that the Surreys had disturbed the pier footing system and in view of Sand and Surf Design’s statutory and contractual obligations as building contractor, the Appeal Tribunal found that the latter’s conduct up until 17 October 2013 was not unreasonable. It was obliged by contract to warrant that the works would be carried out in accordance with all relevant legal requirements and bore both a common law liability for negligence and a statutory liability under the Queensland Building Construction Commission Act for structural defects.
[18] The Appeal Tribunal next considered whether the Surreys had grounds to terminate. Their solicitor’s letter of 17 October identified the conduct relied on as evincing an intention by Sand and Surf Design not to comply with the contract. The Appeal Tribunal did not, however, consider that Sand and Surf Design had given any such intimation; the company had made it clear that it was ready and willing to perform the contract if the Surreys complied with its notices. Nor did its conduct amount to anticipatory breach.
[19] The Appeal Tribunal then turned to each of the matters identified in the Surreys’ solicitor’s letter. It found as a fact that Sand and Surf Design had not failed to progress the work; it could not have proceeded in August because the concrete footings required a period to cure, and on the return to site in September it was necessary to act with care because of the possible compromise of the footing system. Up to mid-October, the company was, through the notices issued, seeking to resolve the outstanding issues so that the works could continue. It was not guilty of any protracted delays such as to demonstrate an abandonment of its contractual obligations. Sand and Surf Design’s claim that the Surreys had caused damage to the footings could not amount to a ground for termination of the contract. There was evidence of disturbance of the footing system which the company was entitled to investigate, and it was justified in acting on its engineer’s advice. The refusal to arrange for an engineer to attend on the site, even if established, could not constitute a repudiation.
[20] The stopping of work was not repudiatory conduct. Until the question of the footing system’s integrity was resolved, work could not continue. It was unclear whether the variation was absolutely necessary, but the engineer’s evidence indicated that submitting it to the Surreys was at least reasonable. In any event, the submitting of the variation did not go directly to termination. Finally, the company was entitled to suspend the works, given the concern as to the status of the footings. The Surreys were not entitled to terminate the contract; their unlawful termination gave proper ground for Sand and Surf Design’s termination on 28 October 2013.
Final decision?
[21] Sand and Surf Design contended that the Appeal Tribunal’s decision was no more than a determination of a preliminary issue and did not resolve the domestic building dispute between the parties.
[22] In Miller & Anor v Lida Build Pty Ltd[6] Gotterson JA, with whom the other members of the court agreed, expressed the following view by way of obiter dictum:
“The definition of “final decision” is sufficiently flexible as to permit that part of a decision of an appeal tribunal as finally decides a matter or matters between the parties to be characterised as a final decision for the purposes of s 150, notwithstanding that it may not have finally decided every one of the matters between them.”[7]
[23] I agree with the proposition that it is not essential that a decision resolve every aspect of a proceeding for it to amount to a “final decision”. In the present case, the Appeal Tribunal’s decision determined what was essentially the subject of the proceeding, the lawfulness of the respective terminations of contract; all that then remained was an assessment of the resulting damages. The decision was a final one; the application for leave to appeal is competent.
Denial of natural justice?
[24] The Surreys contended that they had been denied natural justice because of an alleged failure by the Appeal Tribunal to consider and determine an issue which they had raised before it: that the Tribunal member had erred in finding that the bobcat had disturbed the pier footing system, when there was no evidence to support such a finding. The argument was that the Appeal Tribunal had not dealt with what was said to be the Surreys’ contention to that effect. In their written submissions, they relied on various assertions by them in the Appeal Tribunal; but on examination, all of those assertions proved to be as to the absence of evidence of misalignment or damage. That seems to me to confuse separate issues: whether there was evidence of disturbance of the system as Mr Ferguson described (the appearance of machinery tracks adjacent to the pier footing system and the movement of the above ground support brackets), and whether the piers were actually damaged or shifted. The Tribunal member found the first, not the second.
[25] It was submitted that the Surreys’ reference to an absence of evidence of “misalignment” might amount to a suggestion that there was no evidence that the above ground support brackets and posts (as opposed to the below-ground piers) were disturbed. If so, it was certainly obscure; but assuming that to be the case, the Appeal Tribunal addressed that question. Its decision expressly referred to the member’s conclusion that the bobcat had disturbed the system as Mr Ferguson had set out in his statement: that is, signs of machinery having moved about and the support brackets no longer being in their original line. It found that there was sufficient oral evidence from both parties, as well as photographs, to support the view that there had been some interference with the site. One of the Surreys’ complaints was that there was no oral evidence from their side to that effect, but it may be that the Appeal Tribunal was referring to Mrs Surrey’s confirmation that a bobcat had been used on the building pad at the end of August 2013.
[26] If the Surreys did in fact contend in the Appeal Tribunal that there was no evidence of disturbance of the site, that contention was incorrect, and was dealt with; and it can hardly be said that they were denied natural justice by a failure to consider their allegations of an absence of evidence of damage to the piers, when neither the Tribunal member nor the Appeal Tribunal made any finding that there was such damage.
The Appeal Tribunal’s approach to findings of fact
[27] It was asserted for the Surreys that the Appeal Tribunal had misstated the law as to the proper approach to first instance finding of facts and had consequently failed to re-consider the Tribunal member’s finding as to the absence of disturbance of the site. Citing Fox v Percy,[8] the Appeal Tribunal had said this:
“It is well settled that conclusions of fact made by the primary tribunal will not be disturbed on appeal unless those conclusions of fact were not open on the evidence before it”.
Since, as it said, there was sufficient oral evidence from both parties as well as photographs to indicate some interference with the site, the Appeal Tribunal regarded itself as “compelled” to adopt the Tribunal member’s conclusions.
[28] The Surreys contended that the Appeal Tribunal had misapplied Fox v Percy by failing to consider the following passage from that case:
“In some, quite rare cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses”[9] (Citations omitted).
They submitted that there was no evidence to support the finding of disturbance, and it was “glaringly improbable” in light of the evidence of their engineer.
[29] The Appeal Tribunal was not required to embark on a fresh exercise of fact-finding in relation to the question of interference with the site; it had given leave in relation to questions of fact only so far as findings concerning the Surreys’ conduct in terminating the contract were concerned. And it is clearly wrong to say that there was no evidence to support the Tribunal member’s finding: Mr Ferguson’s evidence was directly on point. Indeed the finding was not even inconsistent with the report of the Surreys’ expert, which, rather than rejecting the possibility of disturbance, suggested instead that it had been caused by Sand and Surf Design’s operation of its machinery. There was no error in the Appeal Tribunal’s declining to interfere with the member’s finding in this regard.
[30] There was an additional argument that the Appeal Tribunal had itself made findings which were “glaringly improbable”, based on evidence inconsistent with facts “incontrovertibly” established by the evidence, or unsupported by any evidence at all. The relevant findings were said to be:
1. that there was objective evidence to support a conclusion that disturbance of the pier footing system had occurred;
2. that there was sufficient oral evidence from both parties as well as photographs and the use of a string line against the metal brackets to indicate some interference with the site;
3. that there was evidence to indicate some interference with or disturbance of the footing system;
4. that there was a reasonable inference that the only way it could be proved whether the disturbance had actually compromised the system was to carry out a destructive inspection;
5. that the Surreys’ experts had agreed that the integrity of the system could not be determined simply from a visual inspection; and
6. that the experts had agreed that testing necessitating the reconstruction of the footings would have to be undertaken before any conclusive determination could be reached as to whether damage had occurred.
[31] The Surreys’ reliance on Fox v Percy as applicable to this court’s considerations is misconceived for two reasons. Firstly, the appeal to this court is not one by way of re-hearing; it is solely concerned with questions of law. Secondly, the Appeal Tribunal was not itself purporting to make findings on the matters referred to; it was considering whether the evidence sufficed to support the findings made by the Tribunal member. To succeed on any of the matters raised, it would be necessary for the Surreys to show that the Appeal Tribunal was wrong in its conclusions as to the existence of evidence or the availability of inferences which supported or contradicted the Tribunal member’s findings.
[32] The Appeal Tribunal’s conclusion that there was evidence of disturbance of the system or interference with the site (points 1 - 3) was clearly correct: that was the effect of Mr Ferguson’s evidence, with some support from Mrs Surrey’s acknowledgement of the bobcat use, as discussed above. The observation that the only way that damage could be proved was to undertake destructive inspection (point 4) was a repetition of the Tribunal member’s finding on the point, with the remark that it was a reasonable inference; similarly, that conclusion was available on the basis of Mr Ferguson’s evidence. There was no explicit statement by the Surreys’ expert that the integrity of the system could not be determined by a visual inspection (point 5), but as much could logically be inferred from that company’s acknowledgement at the outset of its report that its inspection was visual only, so that it was “unaware of the concealed details of the completed construction”.
[33] However, the reference to agreement between the experts that the determination of damage would entail testing requiring the footings to be reconstructed (point 6) was not founded on anything the Surreys’ expert had said. It is not, however, of any real consequence when read in context:
“Although the learned Member made a finding that she was not satisfied there was damage to the footings, it is difficult to see how this finding could be made where the experts agreed that conclusive determination as to whether damage occurred required testing that would require the footings to be reconstructed in any event. It was therefore a finding that was neither available to the Tribunal at that point in time, nor was it necessary given that the work needed to be redone in any event. Also it was not an issue that went directly to termination.”[10]
What is relevant are the points correctly made by the Appeal Tribunal: that the existence of damage was not capable of determination; and, that in any event, it was not directly relevant to the termination question.
Failure to have regard to evidence/ disturbing the Tribunal member’s conclusion
[34] Finally, the Surreys sought to appeal on the ground that the Appeal Tribunal had wrongly found that they had repudiated the contract because of two errors: failing to have regard to or alternatively failing to give appropriate weight to, their evidence that the earthworks performed on their behalf could not have disturbed the support brackets or the pier footing system, and disturbing the Tribunal member’s factual conclusion that Sand and Surf Design did not have a reasonable basis to issue the 20 September Notice to Remedy Breach, that being a finding reasonably open.
[35] As to the first alleged error, the Surreys complained that the Appeal Tribunal did not consider the evidence of their engineer; the finding of disturbance of the pier footing system was contradictory to its report. As has already been observed, the Appeal Tribunal was not required to embark on a fresh fact-finding exercise in this regard. In fact, the Appeal Tribunal referred to the Surreys’ expert’s report, noting that it blamed Sand and Surf Design for any problem in the offset brackets and claimed that the bobcat operation would not have damaged the footings; a conclusion the objectivity of which it doubted. The Appeal Tribunal did not disregard the Surreys’ evidence, it simply did not regard it as constituting a basis for setting aside the Tribunal member’s finding.
[36] As to the second matter, the Appeal Tribunal’s conclusion, that the 20 September Notice to Remedy Breach was reasonably issued, was inevitable. That Notice required the giving of an undertaking not to interfere with the works, which the Surreys gave. As the Appeal Tribunal observed, it was entirely reasonable to seek it, given the uncontested evidence that the Surreys had had earthwork done on the site; and the Surreys had acknowledged as much by giving the undertaking.
[37] The Tribunal member does, however, seem to have confused that Notice to Remedy with the 11 October requirement for the Surreys to sign the variation. As to the latter, having regard to Mr Ferguson’s evidence of disturbance to the site and resulting concerns as to the uncertain state of the piers, the expert’s suggestion of alternative options of exposure, assessment and rectification or removal and replacement, with neither course identified as preferable to the other, and the legal obligations to which Sand and Surf Design was subject, it was open to the Appeal Tribunal to find that the variation was reasonably issued. That conclusion entailed no error of law.
[38] In any event, the real issue was, as the Appeal Tribunal identified, whether anything done by Sand and Surf Design amounted to repudiation. The Appeal Tribunal found as facts that Sand and Surf Design had indicated its willingness to perform the contract on compliance with the notices; that it was seeking to resolve the outstanding issues; and that it was not guilty of any protracted delays such as to indicate an abandonment of its contractual obligations. The Surreys did not identify any error in the Appeal Tribunal’s application of the law to those findings, and there seems to me no error in the Appeal Tribunal’s analysis.
Conclusion
[39] Because of the lack of any prospect of success on the proposed appeal grounds, I would refuse the application for leave to appeal, with costs.
[40] DOUGLAS J: I agree with the Chief Justice’s reasons and the orders proposed by her Honour.
[41] NORTH J: I agree with the Chief Justice’s reasons and the orders proposed by her Honour.
Footnotes
[1] Section 150(3) of the Queensland Civil and Administrative Tribunal Act 2009.
[2] Section 77 of the Queensland Building and Construction Commission Act 1991 gives QCAT jurisdiction to decide a building dispute.
[3] Section 150(2)(b) of the Queensland Civil and Administrative Tribunal Act.
[4] Schedule 3 to the Queensland Civil and Administrative Tribunal Act.
[5] Section 142 of the Queensland Civil and Administrative Tribunal Act.
[6] [2013] QCA 332.
[7] At [8].
[8] (2003) 214 CLR 118.
[9] Fox v Percy at 128.
[10] Sand & Surf Design Pty Ltd v Surrey & Anor [2014] QCATA 225 at [67].