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Miller v Lida Build Pty Ltd[2015] QCATA 137

Miller v Lida Build Pty Ltd[2015] QCATA 137

CITATION:

Miller v Lida Build Pty Ltd [2015] QCATA 137

PARTIES:

Peter John Francis Miller

Susan Mary Miller

(Applicants/Appellants)

V

Lida Build Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL201-14

MATTER TYPE:

Appeals

HEARING DATE:

30 April 2015

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Howard

Member Deane

DELIVERED ON:

14 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The name of the first Applicant/Appellant in this proceeding be corrected to Peter John Francis Miller.
  2. Order 3 of the Decision dated 28 April 2014 is set aside.
  3. The Application for leave to appeal or appeal is otherwise dismissed.
  4. Any application for costs including submissions and evidence as to costs is to be filed in the Tribunal and a copy provided to the other party by:

4.00pm on 5 October 2015.

  1. If any application for costs is filed:

a. the other party is to file in the Tribunal any submissions and evidence (if any) in response and provide a copy to the other party by

4.00pm on 26 October 2015.

b. the application for costs will be determined on the papers without an oral hearing, unless a party requests an oral hearing, not before 27 October 2015.

CATCHWORDS:

APPEALS – DOMESTIC BUILDING DISPUTE – DAMAGES –  where specific issues referred back to the Tribunal – measure of damages – whether unreasonable to incur rectification costs – whether failed to properly consider valuation evidence – no demonstrated error – whether interest on damages payable from date of decision to award damages – whether appropriate to award interest at all when damages set off against amounts payable to builder

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 64, s 142,s 143, s 146, s  147

Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)(c)

Queensland Building and Construction Commission Regulations 2003 (Qld), regulation 34B

Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321

Bellgrove v Eldridge [1954] 90 CLR 613

Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361

Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178

Ericson v Queensland Building Services Authority [2013] QCA 391

Kostas v HIA Insurance Services Pty Ltd t/a Home Owners Warranty [2010] 241 CLR 390

Lida Build Pty Ltd v Miller (No 2) [2010] QCAT 431

Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219

Lida Build Pty Ltd v Miller and Anor [2012] QCAT 137

Lida Build Pty Ltd v Miller & Anor [2013] QCATA 139

Miller & Anor v Lida Build Pty Ltd [2013] QCA 332

Lida Build Pty Ltd v Miller [2014] QCAT 129

Lida Build Pty Ltd v Miller (No 2) [2014] QCAT 179

Pickering v McArthur [2005] QCA 294

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8

APPEARANCES:

APPLICANTS:

Peter John Francis Miller

Susan Mary Miller

RESPONDENT:

LIDA Build Pty Ltd

REPRESENTATIVES:

APPLICANTS:

Mr and Mrs Miller represented by Peter John Francis Miller

RESPONDENT:

LIDA Build Pty Ltd represented by Darryl Jover, director

REASONS FOR DECISION

  1. [1]
    Lida Build and the Millers have been in dispute about building work carried out by Lida Build at the Millers’ house for many years. Lida Build was contracted to build a pool house. The contract price was $104,500. The Millers also supplied a significant amount of materials. Lida Build commenced proceedings claiming the balance of money owed under the contract and for variations. The Millers counterclaimed for defective work and damages for late completion.
  2. [2]
    Through a series of decisions, the issues remaining for determination have been narrowed. On 6 September 2010, the Tribunal delivered a decision (‘First Decision’).[1] Both parties appealed the First Decision. On 9 August 2011, the Appeal Tribunal allowed both appeals in part, set aside part of the First Decision and returned it to the learned Member to decide specified matters (‘First Appeal Decision’).[2]
  3. [3]
    On 26 March 2012, the learned Member delivered another decision (‘Second Decision’).[3] Both parties appealed the Second Decision. On 30 April 2013, the Appeal Tribunal allowed Lida Build’s appeal in part, set aside part of the Second Decision and ordered that it be returned to the learned Member to decide the matters set out in order 5 having regard to the matters set out in order 6 (‘Second Appeal Decision’).[4]
  4. [4]
    The Millers sought leave to appeal the Second Appeal Decision to the Court of Appeal. On 5 November 2013, the Court of Appeal dismissed the Millers’ application for leave to appeal.[5] The matter was returned to the learned Member to decide the matters specified in the Second Appeal Decision.
  5. [5]
    On 7 April 2014, the learned Member delivered another decision (‘Third Decision’).[6] On 28 April 2014, the learned Member delivered an amended decision (‘Amended Third Decision’)[7].
  6. [6]
    The Millers filed an application for leave to appeal or appeal the Third Decision. The application asserts that they do not require leave to appeal although in parts, as referred to later in these reasons, they contend that they rely upon errors of fact and law.
  7. [7]
    A party may appeal on a question of law without the Appeal Tribunal’s leave, except in limited circumstances, which do not apply in this proceeding.[8] Where grounds of appeal raise questions of fact or mixed law and fact, leave to appeal is necessary.[9] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[10] Where leave is granted the appeal is to be decided by way of rehearing.[11]
  8. [8]
    A finding of fact will generally not be disturbed on appeal if the evidence supports the inference drawn and the facts found.[12] Whether a decision is based on findings of fact, which are open on the available evidence, is a question of law.[13]
  9. [9]
    The Millers’ application recounts in considerable detail the long history of this proceeding and contends various errors were made by the Tribunal, the Appeal Tribunal and the Court of Appeal in decisions prior to the Third Decision.[14] The Millers’ submissions dated 10 February 2015 (the Millers’ Submissions) are in a similar vein.[15]
  10. [10]
    This Appeal Tribunal does not have jurisdiction to consider and address those matters relating to the earlier decisions for various reasons, including that appeals have already been brought and decided, additional appeals in respect of those decisions are out of time[16] and there are no appeal rights to the Tribunal in relation to the Court of Appeal decision.
  11. [11]
    We have jurisdiction to determine only whether the Millers’ application for leave to appeal or appeal in relation to the Third Decision, as amended by the Amended Third Decision, should be allowed.
  12. [12]
    The learned Member was

directed to determine, in accordance with this decision that because the contract required the roof pitch of the pool house to match the roof pitch of the existing house whether damages should be awarded on the Millers counterclaim to be assessed on the basis of the cost to rectify the pitch to 25 degrees  or whether damages be assessed by way of diminution in value, and if so what amount[17].

and was to ‘give consideration to any amount to be allowed for rectification of the fascia.[18]

  1. [13]
    The Amended Third Decision provided that:
    1. a)
      the Millers are to pay Lida Build $33,188.98 together with interest on that sum at the rate of 14.98% from the date of the order until and including the day the amount is paid.[19]
    2. b)
      Lida Build shall allow the Millers a deduction from the amount to be paid to it for interest on the sum of $2,500 at the rate of 14.98 % payable from the date of the order until and including the day the amount is paid.[20]
  2. [14]
    The Millers’ application for leave to appeal and appeal sought to set aside the Amended Third Decision and for the Millers to be awarded damages, in the amount of $23,650, together with interest ‘at the appropriate rate from the date of practical completion of 19 June 2009’[21].
  3. [15]
    The Millers’ Submissions however sought to raise new grounds of appeal in addition to those set out in their application for leave to appeal and appeal.
  4. [16]
    Firstly, by amending the amount of damages claimed to $35,351 on the basis that the quote obtained by them ‘is more reliable and should have been accepted’.[22]
  5. [17]
    Secondly, that

the Member’s decisions are totally unreliable and should be ignored at law in the assessment of these proceedings and regarded as an error of law.[23]

  1. [18]
    Thirdly, that the learned Member erred at law by allowing legal costs to Lida Build in respect of its defence of counterclaims made by the Millers.[24] This issue does not arise from the Third Decision and for the reasons set out earlier is not considered further.
  2. [19]
    Lida Build objects to the Appeal Tribunal considering new grounds of appeal because an appeal in respect of the new matters was not commenced within the required time.[25] The Millers did not seek leave to amend their application[26] and did not seek an extension of time.[27] We agree and accept Lida Build’s submissions. In these circumstances, we do not consider the additional grounds.
  3. [20]
    The Millers sought to introduce additional evidence by attaching photographs to their submissions. During the course of the hearing, we refused to give leave to introduce this evidence.
  4. [21]
    Generally, it must be shown that the evidence was not available and could not have been obtained with reasonable diligence for use at the hearing and that it is highly probable that if allowed there would be a different result.[28] Mr Miller conceded that the photographs were similar to ones already in evidence.

Did the learned Member make an error of fact and law by not properly considering the evidence of Mr Missingham in determining damages relating to the roof pitch, overhang and the fascia?

  1. [22]
    The Millers contend the learned Member made a number of errors in relation to the valuation evidence.
  2. [23]
    In substance, they contend that the learned Member erred in finding that the damages based on the cost of rectification are disproportionate[29] and that nominal damages of $2,500 ought to be awarded.[30]
  3. [24]
    We are not satisfied that there is a demonstrated error.
  4. [25]
    The Millers contend in making these findings that the learned Member:
    1. a)
      ignored evidence of defects listed by Mr Missingham, the Millers’ valuer;
    2. b)
      failed to take into account evidence of the total cost of the project, which included not only the contract price but also the significant cost of materials supplied by them; and
    3. c)
      erred in finding that:

the building is substantially in accordance with the contract (See Bellgrove v Eldridge) and Lida Build’s failure to abide by the contract was not a serious and significant breach. The breach does not significantly affect either the functionality or the ascetics of the building.[31]

  1. [26]
    The learned Member set out at some length the evidence of Mr Missingham, which set out the consequences of the incorrect roof pitch[32] and acknowledged the repercussions.[33] He also acknowledged that the Millers had supplied materials.[34]
  2. [27]
    The Millers point out that findings in the Third Decision conflict with findings in the learned Member’s Second Decision.
  3. [28]
    The Second Appeal Decision set aside parts of the Second Decision and in particular the decision in relation to damages for rectification of the roof pitch claim and gave directions as to the matters to be considered by the learned Member. Consequently, the fact that apparently inconsistent findings were made does not point to an appealable error.
  4. [29]
    The Millers also contend that because the learned Member made an alternative finding he was ‘not confident’ in his application of the law.[35] It is not uncommon for Tribunal Members or Judges to make alternative findings in the manner he did. The making of alternative findings does not point to an appealable error.
  5. [30]
    The Millers submit that the learned Member erred in law in finding that the valuation evidence had only been used to assess the issue of whether or not it was necessary or unreasonable to rectify the roof to conform with the contract.[36] This appears to relate to the contention the learned Member ignored the evidence of defects listed by the Millers’ valuer, which was  addressed earlier in these reasons and to the contention that the learned Member erred in rejecting the valuation evidence of Mr Missingham as an appropriate measure of damages and incorrectly applied the principles of Bellgrove v Eldridge.[37]
  6. [31]
    We are not satisfied that there is a demonstrated error.
  7. [32]
    The learned Member set out the principles in Bellgrove v Eldridge,[38] which are that damages are generally assessed as the cost of making the work conform to the contract provided that the work to produce conformity is a reasonable course to adopt. He undertook an assessment as to whether the rectification work was a reasonable course to adopt, which

is dependent upon a finding of fact that the proposed work was reasonable in order to achieve the contractual objective[39] 

  1. [33]
    The findings were open on the evidence before the learned Member.[40]
  2. [34]
    In making the alternative damages finding the learned Member assessed rectification costs on the basis of the JDT quote having regard to the decision in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd.[41]  The learned Member noted that the Millers considered the JDT quote a realistic alternative subject to three provisos, two of which were addressed during cross-examination and set out extracts from the Tabcorp Holdings decision[42] including a reference as to when diminution in value measure of damages would apply. There was no finding that there were  circumstances where damages based on diminution in value were applicable. He made the alternative assessment, in case he was subsequently held on appeal to have incorrectly reached the conclusions that he did about damages and in particular his finding that the costs of rectification was unreasonable.     

Did the learned Member err in allowing interest from the date of the decision?

  1. [35]
    The Millers contended that the learned Member erred in law in allowing interest on the awards of damages in their favour from the date of the decision rather than the date of the ‘alleged date of practical completion’ because Lida Build was awarded interest on amounts awarded to it from that date.
  2. [36]
    We are not satisfied that this is a demonstrated error.
  3. [37]
    The Tribunal has power to award interest on damages at the rate and calculated in the way, prescribed under regulation 34B of the Queensland Building and Construction Commission Regulations 2003 (Qld).[43] Regulation 34B(2) provides that interest is payable on and from the day after the day the amount became payable. Until a decision to award damages is made no amount is payable.
  4. [38]
    There is no inconsistency in approach to the award of interest. Lida Build was awarded interest under the terms of the contract. The Tribunal awarded interest from the date the amount was found to be payable under the contract.       
  5. [39]
    Lida Build contend that the learned Member erred in law in awarding interest to the Millers at all.
  6. [40]
    Section 146 of the QCAT Act sets out the Appeal Tribunal’s powers on appeal where the appeal is on a question of law. It does not provide for rehearing as compared to s 147, which relates to appeals on questions of fact or mixed law and fact.[44]
  7. [41]
    If the question of law resolves the matter as a whole then the Appeal Tribunal may substitute its decision, otherwise it is to remit the matter for further consideration.
  8. [42]
    We find that the learned Member erred in law in awarding the Millers interest on damages, which were set off against amounts found to be owing to Lida Build. In the circumstances, we set aside order 3 of the Amended Third Decision.
  9. [43]
    During the hearing, Mr Miller conceded that because the damages awarded to the Millers were deducted from the amount found to be owing to Lida Build this in effect means that the damages have already been paid. In these circumstances, no interest could accrue on the damages and no order for the payment of interest is appropriate.
  10. [44]
    At the commencement of the hearing, Mr Miller identified that his name was incorrectly recorded in the proceeding. It is appropriate to amend the record from ‘Frances’ to ‘Francis’.
  11. [45]
    It is also appropriate to make directions for submissions as to costs.

Footnotes

[1] Lida Build Pty Ltd v Miller (No 2) [2010] QCAT 431.

[2] Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.

[3] Lida Build Pty Ltd v Miller and Anor [2012] QCAT 137.

[4] Lida Build Pty Ltd v Miller & Anor [2013] QCATA 139.

[5] Miller & Anor v Lida Build Pty Ltd [2013] QCA 332.

[6] Lida Build Pty Ltd v Miller [2014] QCAT 129.

[7]   Lida Build Pty Ltd v Miller (No 2) [2014] QCAT 179.

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

[9]  Ibid s 142(3)(b).

[10] Pickering v McArthur [2005] QCA 294 at [3].

[11]  QCAT Act s 147(2).

[12] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ.

[13] Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390.

[14]  Application for leave to appeal or appeal, in particular paras 1 – 36, 42, 44, 52, 53, 61, 62.

[15]  Millers’ Submissions, in addition to equivalent paragraphs to those in the Application, in particular paragraph 71, 83.

[16]  QCAT Act s 143.

[17]  Appeal Tribunal decision 30 April 2013, direction 5.

[18]  Appeal Tribunal decision 30 April 2013.

[19]  Amended Third Decision, Orders 1 and 2.

[20]  Amended Third Decision, Order 3.

[21]  Application, paragraph [77].

[22]  Millers’ submissions, paragraph [70].

[23]  Millers’ submissions at paragraph 78.

[24]  Millers’ Submissions at paragraph 83.

[25]  QCAT Act s 143.

[26]  Ibid s 64.

[27]  Ibid s 61.

[28] Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178.

[29]  Application, para 68.

[30]  Ibid, para 75.

[31]  Reasons at [45].

[32]  Ibid at [12].

[33]  Ibid at [39] – [43].

[34]  Ibid at [1].

[35]  Application, para [73].

[36]  Third Decision Reasons at [50].

[37]  (1954) 90 CLR 613.

[38]  Third Decision Reasons at [25] – [28].

[39] Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361.

[40]  Third Decision Reasons at [46] – [48], [49].

[41]  [2009] 2009 HCA 8.

[42]  Third Decision Reasons at [29] – [30].

[43] Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(2)(c).

[44] Ericson v Queensland Building Services Authority [2013] QCA 391 at [13] and [25].

Close

Editorial Notes

  • Published Case Name:

    Miller v Lida Build Pty Ltd

  • Shortened Case Name:

    Miller v Lida Build Pty Ltd

  • MNC:

    [2015] QCATA 137

  • Court:

    QCATA

  • Judge(s):

    A/Senior Member Howard, Member Deane

  • Date:

    14 Sep 2015

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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