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Rosa v Hunterland (No 2) QCATA 187
Rosa v Hunterland & Anor (No 2)  QCATA 187
11 June 2015
Senior Member Stilgoe OAM
Member Steven Holzberger
2 September 2015
APPEAL – DOMESTIC BUILDING DISPUTE – fixed price contract– where the builder’s claims for additional amounts for variations and provisional cost items were dismissed – whether findings were an error of law or fact
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 6, s 143
Domestic Building Contracts Act 2000 (Qld) s 84
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Fox v Percy (2003) 214 CLR 118
Dearman v Dearman (1908) 7 CLR 549
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
Rosa v Hunterland & Anor  QCATA 020
APPEARANCES and REPRESENTATION (if any):
- On 5 October 2011, the Vicky and Jane Hunterland entered a building contract with Mr Rosa for the renovation of their home. The parties fell into dispute about the provisional cost items and the construction of a driveway. The Hunterlands believed they would be getting a credit from the contract sum; Mr Rosa had a different impression.
- The Hunterlands filed an application for a refund of $27,845 for unapproved variations, plus interest, plus the costs of rectification. Mr Rosa counterclaimed for, among other things for variations to the contract works and additional costs of prime cost items. The Tribunal ordered Mr Rosa pay the Hunterlands $36,493.26 plus interest and costs.
- Mr Rosa wants to appeal that decision. He has fourteen grounds of appeal but they can be grouped as follows:
- a)The learned Member erred in not dealing with, or erred in her dealings with, earlier applications.
- b)The learned Member did not provide procedural fairness.
- c)The learned Member erred in her application of the Domestic Building Contracts Act 2000 (Qld) (DBC Act).
- d)The learned Member erred in fact and law.
- Two of Mr Rosa’s grounds of appeal - that the learned Member did not deal with earlier applications and that the learned Member did not provide procedural fairness – are errors of law for which leave is not required. Otherwise, the grounds of appeal involve questions of mixed fact and law for which leave is required. 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.
A preliminary issue - should the Appeals Tribunal accept Mr Rosa’s late submissions?
- Mr Rosa filed his application for leave to appeal some months late. The Appeal Tribunal granted an extension of time in which to file that application. In granting that extension, the Appeal Tribunal noted the Hunterlands’ submission that Mr Rosa filed the appeal simply to avoid his legal obligations. Accordingly, the Appeal Tribunal ordered a short time for the filing of submissions and strict compliance with those dates. If Mr Rosa did not file his submission on time, his application for leave to appeal was automatically dismissed.
- Mr Rosa did file submissions on time. The submissions comprised some 38 pages detailing 14 amended grounds of appeal and 294 pages of attachments. On 25 February 2015 Mr Rosa filed a corrigenda of submissions, removing one of the grounds of appeal, together with a list of authorities including 21 cases and statute extracts.
- Mr Rosa appeared at the application for leave to appeal or appeal on 11 June 2015 by telephone. The Hunterlands appeared in person. Mr Rosa’s application for leave for representation had been refused but Mr Paul Armit, solicitor appeared at the hearing seeking leave to file further submissions and materials on behalf of Mr Rosa.
- The Hunterlands had not seen the further submissions and materials until immediately prior to the commencement of the hearing. The submissions comprised some 66 pages. Mr Armit submitted that the purpose of the further submission was to refine and summarise the earlier submissions and corrigenda. He told the Appeals Tribunal that the further submissions would assist both the Tribunal and the Hunterlands.
- The Hunterlands opposed the filing of the further material. It was not, they said, the first time Mr Rosa sought to provide further material at the hearing. He filed material on the morning of the original hearing on 14 March 2013 and attempted to again file material on the morning of an adjourned hearing on 11 October 2013. The Hunterlands had responded to the original appeal submissions and corrigenda and were prepared to speak to it. They did not want the hearing of the matter delayed while they considered and responded to the further submissions.
- We have refused to accept the further submissions. Mr Rosa had notice of this hearing in mid-April, almost two months ago. He did not explain why he chose the morning of the hearing to file late submissions. To have allowed the submissions would inevitably have resulted in an adjournment of the hearing and the Hunterlands having to consider and respond to what was, according to Mr Armit, the same submissions in a different format. If, in fact, the submissions are just a restructure of Mr Rosa’s argument, then he suffers no detriment by our refusal to accept them.
Did the learned Member err in not dealing with, or err in her dealings with, earlier applications?
- Mr Rosa says the learned Member erred in fact and/or law in that she ought to have struck out the Hunterlands’ proceeding long before it reached the final hearing.
- Mr Rosa’s submissions on appeal refer to the Hunterlands’ non-compliance with Tribunal directions in 2012. Mr Rosa details the Hunterlands’ failures but conveniently omits reference to his own failures, including his failure to appear at two compulsory conferences. He referred to an application filed in March 2013 and another application to strike out the Hunterlands’ claim in May 2013 on the basis that the Hunterlands had not served him in accordance with the Tribunal directions and the Hunterlands’ allegedly consistent failure to comply with directions.
- The Hunterlands did comply with the timelines for filing and service of their material. An administrative error at the post office where Mr Rosa’s post office box was housed meant that the he did not receive the Hunterlands’ material until 20 May 2013. Mr Rosa then withdrew his application to dismiss or strike out.
- The time for complaining about those matters was long past when the Tribunal finally heard this dispute.
- In those circumstances this ground must fail.
- Mr Rosa says the learned Member erred in fact and/or law in not accounting for his costs thrown away in attending the adjourned hearing on 14 March 2013.
- The Member at the time adjourned the hearing on 14 March 2013 because neither party had complied with the orders made at the directions hearing on 30 August 2012 as to filing statements of evidence. As a result, neither party was in a position to proceed with a hearing.
- In those circumstances a cost order was inappropriate. Again, the time for complaining about the Tribunal’s actions in March 2013 has long since passed.
Did the learned Member fail to provide procedural fairness?
- The appropriate test for bias is that a fair-minded lay bystander might reasonably apprehend that the decision-maker might not have brought an impartial mind to the determination of the issues that the decision‑maker must decide.
- Mr Rosa submits that there were two sets of rules applied to costs in these proceedings. He was ordered to pay the costs thrown away by his failure to attend a compulsory conference in November 2012 but, when the Hunterlands failed to comply with directions to file material, they were not penalised. He also complains that he does not understand the basis for an order for costs of $211.
- If Mr Rosa was unhappy with the order that he pay costs, he should have appealed in in November 2012. It is not a matter that the Appeals Tribunal can, or should, deal with over two years later.
- The order for costs was made by an Adjudicator of the Tribunal. The failure (or refusal) to order costs for non-compliance in March 2013 was made by a Member. A different Member presided at the hearing which is the subject of this application. Mr Rosa appears to be alleging a systemic bias, in that the Tribunal was trying to help the Hunterlands and ignored his interests. There is no evidence of that. Mr Rosa is, once again, mistaken in his claim that the first hearing was aborted solely because the Hunterlands were not ready. Neither of the parties was ready. Mr Rosa’s claim of bias simply cannot succeed.
Filing late submissions
- At the adjourned hearing on 12 August 2013, Mr Rosa sought leave to file a 10 page document titled “Respondent’s Submissions at Hearing”. Mr Rosa says the learned Member erred in fact and/or law in failing to allow him to hand up these written submissions.
- On 14 March 2013, the Tribunal made orders about the filing of material relied on by the parties and responses to that material. On 12 June 2013, the Tribunal gave Mr Rosa extra time to file material in response. And still, at the last moment, Mr Rosa wanted to file further material, which the Hunterlands had not seen.
- The document itself appears to be part submission and part evidence. To the extent it contained evidence, leave to file a document would have disadvantaged the Hunterlands or resulted in the adjournment of the hearing to allow the Hunterlands to consider and respond to it.
- To the extent the document contained submissions there was nothing to prevent Mr Rosa from making those submissions orally at the hearing.
- This ground of appeal must fail.
Did the learned Member err in finding in favour of the Hunterlands in the first instance at all (notwithstanding the outcome of the counterclaim)?
- Mr Rosa’s submissions in the support of this ground appears to be that the learned Member has apparently rejected his statement of evidence given in response to the Hunterlands’ application. The learned Member’s reasons do not make a specific finding as to the credibility of either the Hunterlands or Mr Rosa but she did accept, and place great reliance on, the evidence of Ms Hogarth which was generally supportive of the Hunterlands’ claim.
- Mr Rosa submits that the learned Member should not have accepted Ms Hogath’s evidence. He says that Ms Hogath’s plans included a driveway that could not be built so she had a real and personal interest in shifting the cost of her error to some third party. Mr Rosa also submits that Ms Hogath’s evidence was wrong, and he points to two specific instances where she erred in the amounts payable under the contract.
- The learned Member noted that Ms Hogath was a reluctant witness, who was distressed in having to give evidence in this case. The learned Member gained her impression of Ms Hogath by observing her in the witness box. The Appeals Tribunal does not have that same advantage. We acknowledge that, even if the Tribunal below makes findings about credibility of witnesses, we “must not shrink from giving effect to [our] own conclusions”. Ms Hogath’s evidence supported the evidence given by the Hunterlands. The evidence is capable of supporting the learned Member’s conclusions and we are not persuaded that the evidence was contrary to the compelling inferences in the case.
Did the learned Member take into account improper considerations or fail to take into account proper considerations?
- Mr Rosa does not particularise the improper considerations taken into account or the proper considerations not taken into account. In those circumstances these grounds must fail.
Did the learned Member err in not allowing Mr Rosa to recover the cost of variations?
- Mr Rosa claimed the sum of $15,416.26 in respect of variations 28 to 41.
- The learned Member’s dismissed the counterclaim on the ground that contract between the Hunterlands and Mr Rosa was a fixed price contract. She stated:
With a fixed price contract a homeowner is entitled to assume that the job will be completed for that price taking into account the various allowances that I’ve tried to adjust as a matter of fairness to him for the sum included.
It is important as a matter of policy for the Tribunal to give careful regard to the nature of the contract in these circumstances as a fixed price contract and for the Hunterlands’ expectation that the house could be bought for this sum.
- It is not sufficient, with the greatest respect to the learned Member, to say that, as a matter of policy a builder is not entitled to variations to the works specified in a fixed price contract. Clearly the Domestic Building Contracts Act contemplates that, subject to compliance with the Act, a builder is entitled to payments for agreed variations. The learned Member erred in her approach to the variations as a matter of law. Leave is not required and the appeal should be allowed.
- Section 84 of that Act permits recovery only if he has complied with ss 79, 80, 82 and 83 or the Tribunal allows the variations on an application made by him. In summary, variations must be put in writing within the shortest practicable time and before the variation is carried out. It is clear Mr Rosa did not comply with this requirement of the Act, as the works were completed long before the delivery or execution of the variation forms.
- Section 84(4) of the Act provides that the Tribunal may only approve payment of variations that do not comply with the Act if it is satisfied that there are exceptional circumstances or if Mr Rosa establishes that he will suffer unreasonable hardship as a result and it would not be unfair to the owner for the contractor to recover an amount.
- The Hunterlands accept variations 28, 29, 30, 31, 38 and 42, being a total cost of $3,222.26. The learned Member did not apply the s 84 test to the balance of the variations. The proceeding should be returned to the learned Member for her consideration of each of the variations in light of s 84.
- The learned Member’s reconsideration should extend to the variation for the driveway as it is not clear from the reasons for decision how that issue was dealt with.
Did the Tribunal err in the way it dealt with Mr Rosa’s counterclaim for the actual cost of provisional cost items?
- Mr Rosa’s submissions on appeal claim an additional $9,625.00 for provisional cost items. This amount included tiling totalling $2,350, polystyrene at $5,755 and insulation at $1,520.
- The Hunterlands submit that the member was satisfied that these items had been settled by Mr Rosa’s acceptance of an additional payment of $7,887.00 made in April 2012.
- The learned Member, dismissing the counterclaim, allowed the sum of $4,000 in “additional provisional cost items having regard to the evidence of CTS Property Consultants and the evidence of Ms Hogarth”:
“It is impossible at this stage to know exactly what that amount should be. That is why I have picked the global figure of $4,000 which takes into account, hopefully, the items, that are listed by CTS Property Consultants”.
- It is not clear which of Mr Rosa’s specific claims for provisional costs were disallowed. It is clear however that by making the allowance the learned Member did not, as the Hunterlands submit, accept that Mr Rosa’s claim had been previously settled.
- The learned Member did not explain why she did not accept the Hunterlands’ submission, or why she could not identify the precise amount to which Mr Rosa was entitled. Although the Tribunal has an obligation to be quick, and ex tempore reasons for decision meet that obligation, the Tribunal should not sacrifice proper reasoning and the need to provide a just decision. The learned Member should have provided better reasons for her decision. The issue should be returned to the Tribunal for reconsideration and the provision of more complete reasons.
Decision and Orders.
- The application for leave to appeal or appeal, so far as it relates to the Tribunal’s dismissal of Mr Rosa’s counterclaim is allowed. The decision of the Tribunal made on 29 November 2012 dismissing Mr Rosa’s counterclaim is set aside and the matter returned to the Tribunal for reconsideration without further evidence.
 Pickering v McArthur  QCA 294 at .
 Rosa v Hunterland & Anor  QCATA 020 at 
 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
 Section 79(1)
 QCAT Act s 3(b)
 Also contained within s 3(b)
- Published Case Name:
Rosa v Hunterland & Anor (No 2)
- Shortened Case Name:
Rosa v Hunterland (No 2)
 QCATA 187
Senior Member Stilgoe OAM, Member Steven Holzberger
02 Sep 2015