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Sottovia & anor v Roos[2016] QCATA 189

Sottovia & anor v Roos[2016] QCATA 189

CITATION:

Sottovia & anor v Roos [2016] QCATA 189

PARTIES:

Tiziano Sottovia

Nicole Brigg

(Applicants/Appellants)

v

Simon Roos

(Respondent)

APPLICATION NUMBER:

APL183-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 12 May 2016 is set aside.
  4. Claim MCDO1276/15 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ESTOPPEL – ESTOPPEL BY JUDGMENT – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL – IDENTITY OF CAUSE OF ACTION – where claim in building jurisdiction for compensation for defective work – where no response filed – where application for decision by default and unliquidated damages – where builder later filed claim for minor debt – whether builder estopped from making claim – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – ESTOPPEL – ESTOPPEL BY JUDGMENT – ANSHUN ESTOPPEL – where claim in building jurisdiction for compensation for defective work – where no response filed – where application for decision by default and unliquidated damages – where builder later filed claim for minor debt – whether builder estopped from making claim – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5)

Jackson v Goldsmith (1950) 81 CLR 589

Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993

Pickering v McArthur [2005] QCA 294

Pope v Evans [1968] 3 WLR 97

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    Simon Roos agreed to build a retaining wall for Tiziano Sottovia and Nicole Brigg (‘the homeowners’). In December 2014, the homeowners filed an application in the building jurisdiction of the tribunal, claiming a refund of all money they paid to Mr Roos. They claimed that Mr Roos’ building work was defective.
  2. [2]
    Mr Roos did not file a response to the homeowners’ application. The homeowners requested a decision by default. By order dated 22 January 2015, the tribunal ordered Mr Roos pay the homeowners $9,661.00.
  3. [3]
    On 16 June 2016, Mr Roos filed a minor debt application for the money the homeowners allegedly owed under the contract. The homeowners referred the tribunal to the previous proceeding and repeated their assertions that the work was defective. Despite this, the tribunal ordered the homeowners pay Mr Roos $7,271.00.
  4. [4]
    The homeowners want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
  5. [5]
    The homeowners say that the minor debt application is, in fact, an appeal of the tribunal’s earlier decision. They say the tribunal cannot ignore the earlier decision. They say the tribunal erred in ordering that they pay interest. They say the tribunal erred in its calculation of the filing fee to be paid. They say the tribunal erred in fact and in its application of the Domestic Building Contracts Act 2000 (Qld).

Is the minor civil dispute application in fact an appeal of the tribunal’s decision?

  1. [6]
    Mr Roos unsuccessfully applied to set aside the decision of 22 January 2015. He was unable to appeal that decision.[3]
  2. [7]
    While it is tempting to treat Mr Roos’ minor debt application as an appeal, his claim for payment had not been considered by the tribunal, or determined. If the tribunal could not consider Mr Roos’ claim, it was on a different basis.

Could the tribunal ignore the previous decision?

  1. [8]
    The tribunal did not, in fact, ignore the previous decision. It found that the earlier tribunal did not given any consideration of the merits of the homeowners’ application.[4] It found that the earlier claim was different from the claim in the minor civil dispute.[5]
  2. [9]
    The real question in this application for leave to appeal is whether the tribunal was entitled to make those findings. Three legal principles are relevant.
  3. [10]
    The first principle, res judicata, states that a party cannot raise a cause of action which has already been litigated and decided.[6] The principle can apply to decisions by default but the tribunal must take care to define what was determined by the first decision. Res judicata will not apply in a proceeding that was dismissed for procedural non-compliance.[7] It will only apply to those facts which must necessarily have been decided in making the decision by default.[8]
  4. [11]
    The homeowners’ claim depended on the following facts:
    1. There was an agreement to build a retaining wall.
    2. Mr Roos did not build the wall in accordance with the agreement and/or the work was defective.
    3. The homeowners had paid Mr Roos $6,396.
    4. The wall needed to be removed and rebuilt.
    5. The cost of removing the wall was $3,000.
  5. [12]
    Mr Roos’ claim depended on the following facts:
    1. There was an agreement to build a retaining wall.
    2. Mr Roos built the wall in accordance with the agreement and the work was not defective.
    3. The homeowners owed Mr Roos $6,168.00.
  6. [13]
    It is clear that, in giving the default decision, the earlier tribunal must necessarily have decided that the wall was not built in accordance with the agreement or was defective. It follows, therefore, that Mr Roos could not make a claim that contradicted those findings.
  7. [14]
    The second principle is issue estoppel. This principle stops a party raising again as an issue a fact or law that has already been decided between the same parties in an earlier decision.
  8. [15]
    The decision of the earlier tribunal was not a procedural decision. As I have already indicated, the tribunal had to be satisfied that the wall was defective, the homeowners suffered loss or damage, and they were entitled to compensation. Mr Roos was not, therefore, entitled to raise the issue of the whether the wall was defective again.
  9. [16]
    The third principle is Anshun estoppel. This principle stops a party raising a claim which could have been raised in previous proceedings, especially when the relief claimed in the second proceeding is inconsistent with the decision in the first proceeding.
  10. [17]
    Again, a claim for the cost of constructing the wall is inconsistent with a decision giving the homeowners compensation for a defective wall. Mr Roos might have raised a counterclaim in the earlier proceeding but he did not. He should not be allowed to subvert the tribunal’s processes by bringing a fresh application about the same subject matter.
  11. [18]
    The tribunal was in error in finding the earlier tribunal had not decided these issues and allowing Mr Roos’ claim to proceed.
  12. [19]
    Leave to appeal should be granted and the appeal allowed.
  13. [20]
    It is not necessary for me to consider the errors of fact and law or the calculation of the decision the subject of the appeal. The application of the principles referred to above means that Mr Roos was not entitled to bring his claim. The tribunal should have dismissed his claim.
  14. [21]
    The decision dated 12 May 2016 is set aside. The claim is dismissed.

 

Footnotes

[1] QCAT Act, s 142(3)(a)(i).

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

[3] QCAT Act s 139(5).

[4] Reasons for decision dated 12 May 2016 at [17].

[5] Supra at [19].

[6] Jackson v Goldsmith (1950) 81 CLR 589.

[7] Pope v Evans [1968] 3 WLR 97 at 109.

[8] Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1012.

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Editorial Notes

  • Published Case Name:

    Sottovia & anor v Roos

  • Shortened Case Name:

    Sottovia & anor v Roos

  • MNC:

    [2016] QCATA 189

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    02 Dec 2016

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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