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- Unreported Judgment
- Appeal Determined (QCA)
Terera v Clifford QCATA 25
Terera & Bohlar v Clifford  QCATA 25
Sandra Phyllis Terera
10 December 2015
Senior Member O'Callaghan
5 February 2016
APPEAL – LEAVE TO APPEAL – application to adduce further evidence – building dispute – procedural fairness – enlargement of issues without prior notice – costs – whether costs follow the event in building disputes
Domestic Building Contracts Act 2000 (Qld), s 44 (repealed)
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 28, s 29, s 51, s 60, s 62, s 88, s 133, s 135, s 136, s 142, s 146, s 147, s 160
Bannink v Solar Energy Group Pty Ltd  QCATA 148
Campbell v Kerry M Ryan Pty Ltd  QCATA 58
Goodhue v Volunteer Marine Rescue Association Incorporated  QCA 234
Jones v Dunkel (1959) 101 CLR 298
Kerr v Paku and Anor  QCATA 157
Laing & Anor v Kokkinos & Anor (No 2)  QCATA 247
Lyons v Dreamstarter Pty Ltd  QCATA 142
Mannix v Chris Neale Constructions Pty Ltd  QCATA 222
Stuart Holmes and Renovations v Denton and Anor  QCAT 43
Underwood v Queensland Department of Communities  1 Qd R 252
Ms Sandra Terera representing herself and Dr Robert Bolhar
Mr Alan Clifford represented by Mr M Panayi, Solicitor
REASONS FOR DECISION
The Appeal Application
- On 13 February 2015, the Applicants filed an Application for leave to appeal or appeal (‘the Application’). The Application concerns a final decision of the Tribunal made on 2 February 2015 (‘the Decision’).
- In Part C of the Application, reference is made to sections 136 and 160 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). Section 136 is a machinery provision providing for the application of Division 7 of Part 7 of the QCAT Act in the context of reopening a proceeding. Section 160 provides for an application to the Tribunal for an additional statement containing further and better particulars about stated matters in respect of a written statement of reasons provided by a decision-maker for a reviewable decision. However, the Form adopted by the Applicants relates to applications for leave to appeal or appeal and the Applicants refer to ‘appealing’ the Decision in Part C and Part D of the Application. In our view, the approach of the parties, having regard to their respective written submissions and oral submissions at the hearing of the Application, was broadly consistent with the treatment of the Application as one governed by Part 8 of the QCAT Act and we consider that the Appeal Tribunal should proceed on that basis.
- Another issue in relation to the Application is the paucity of any identified grounds relied upon by the Applicants. The stated reason for this is that ‘The Applicants are waiting for a copy of the Reasons for Decision’. The reasons given by the Tribunal Member below (‘the Member’) were oral reasons; no written reasons were provided by the Member. The grounds of the Application are to be gleaned from the written submissions.
- By the Decision, the Member ordered that:
- the Applicants’ application (‘the original application’) be dismissed;
- the Applicants pay to the Respondent the sum of $1,631.00 plus interest thereon of $92.97 within fourteen (14) days;
- the Applicants pay the Respondent’s costs to be assessed on the standard basis or as otherwise agreed. In the event of no agreement as to costs, the parties were given liberty to apply.
- The oral reasons for the Decision are recorded in the Transcript below at page 92 line 44 to page 97 line 9.
The original application
- The dispute between the parties involved a claim by the Applicants, pursuant to s 77 of the Queensland Building and Construction Commission Act 1991 (Qld), for relief in relation to alleged defective tiling work performed by the Respondent at the house of the Applicants and a counterclaim by the Respondent for the sum of $1,631.00 (comprising the balance of the moneys outstanding pursuant to the agreement between the Applicants and the Respondent for the performance of the tiling work). The Applicants were unsuccessful in relation to their claim and the Respondent was successful in relation to his counterclaim.
- The essence of the complaints by the Applicants in relation to the tiling performed by the Respondent was summarised by the Member (in his oral reasons as follows): a ‘lippage’ issue (which we understand to be unevenness of the level of the respective tiles at the point at which they meet (albeit separated by grouting); bulging of some of the tiled bathroom walls; ‘picture framing’ around the perimeter of various tiles; and staining and discolouration of various areas of the tiling.
- At the hearing below, the Member permitted a further issue to be adjudicated concerning a leak in respect of the studio bathroom shower (‘the leak issue’). The Applicants’ complaints in relation to this item are discrete from those in relation to the other items and these complaints will be dealt with separately.
- There is a preliminary issue concerning the seeking of leave by the Applicants to adduce further evidence on the Application.
 The Appeal Tribunal, in deciding whether to receive the applicant’s further evidence, applied part of the definition of ‘reopening ground’ in s 137 of the QCAT Act. Under that section and s 138 a party is given a right to apply to QCAT for a proceeding to be reopened if a ‘reopening ground exists’. A reopening ground relevantly exists where:
‘… the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided’.
 Under s 139, where a reopening ground exists and where that ground could be ‘effectively or conveniently dealt with by reopening the proceeding’ the Tribunal may grant the application to reopen. Sections 136 to 141 inclusive, however, do not apply to appeals. Section 143 of the QCAT Act which provides for applications for leave to appeal is silent as to the Appeal Tribunal’s ability to receive additional evidence. Section 147, which relates to appeals to the Appeal Tribunal on a question of fact or on a question of mixed fact and law, provides that ‘The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal’. The test contained in the definition ‘reopening ground’ in s 137, as a general proposition, is a useful enough guide for the Appeal Tribunal to apply on application for leave, but it would not be correct in law for the Tribunal to fetter its discretion by rigidly applying a test which expressly applies to proceedings at first instance but not to appeals. (underlining added)
- The Tribunal’s power to allow fresh evidence on appeal is not a mechanism by which parties can repair the holes in their original case.
- With respect to the photographs, the Applicant’s submit, candidly, that they ‘concede that they should have led better evidence in the form of better photographs and arguably, a third party appearing at the hearing’.
- It is clear that, at the hearing below, the Applicants were alive to the need to produce evidence of the alleged defects in the Respondent’s work and, to that end, produced photographic evidence. However, the Member was critical of the quality of the evidence produced. It is our view that the Applicants could have produced better photographic evidence and, on their own concession, should have produced better photographic evidence. We consider that the application for leave to adduce this further evidence is an attempt to repair the holes in the Applicants’ original case. Such evidence could have been obtained for use the original hearing; it was reasonably available. It is not new evidence that has become available since the hearing below. In the circumstances, it is our view that leave to adduce the further evidence in the form of the photographs should be refused.
- With respect to the two reports, for the reasons discussed below, we consider that the Member should not have enlarged the original application to include the leak issue (and proceed to adjudicate on that issue). Consequently, there is no need for the Applicants to seek to rely on the fresh reports in support of the Application before the Appeal Tribunal. For completeness, had the leak issue been properly the subject of the original application, we consider that it would have been appropriate to refuse leave to adduce the evidence comprising the reports. While the Applicants argued that the evidence was not available at the time of the hearing, the test requires consideration of whether the evidence was not ‘reasonably’ available at the time of the hearing. There is no demonstrable reason why the Applicants could not have obtained evidence of that nature at the time of the hearing (noting that, until the hearing of the matter before the Member, the Applicants were necessarily proceeding on the basis that the leak issue would not be subject of that determination).
Application for leave to appeal or appeal
- In our view, the Applicants’ written submissions can be categorised as raising the following matters as the basis for the Application:
- the Applicants were denied natural justice (or procedural fairness) (‘the procedural fairness ground’) (paragraph 8);
- the procedural fairness ground raises an anterior question of whether the Member had power to ‘enlarge’ the Application to include the leak issue;
- that the Member erroneously invoked the principle in Jones v Dunkel adversely to the Applicants (paragraph 9);
- that the Member wrongly rejected the evidence of the Applicants and wrongly accepted all of the Respondent’s evidence and failed to give sufficient weight to various aspects of the evidence (which I will refer to globally as ‘the wrongful rejection ground’) (paragraphs 4, 5 and 7); and
- the Member erred in making a costs order in favour of the Respondent (paragraph 3).
The procedural fairness ground
- The Applicants raise three matters of complaint in this context: first that the Member should have afforded the Applicants an opportunity to produce better photographic evidence; secondly, that the Member made no attempt to contact Mr Stacey, the author of the quote for remedial work, or afford the Applicants an opportunity to contact Mr Stacey; and thirdly, that the leak issue was ‘sprung’ on the Applicants and they were not afforded any time to prepare evidence with regards to the leak issue.
- By virtue of section 29 of the QCAT Act, the Tribunal must take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the Tribunal; the nature of assertions made in the proceeding and the legal implications of the assertions; and any decision of the Tribunal relating to the proceeding.
- With respect to the first two matters of complaint, there is no suggestion by the Applicants that they sought (and were denied) the opportunity to adduce better photographic evidence or to call Mr Stacey. It appears implicit in the Applicants’ submissions that the Member should have proactively pointed out the deficiencies in the Applicants’ case and offered the Applicants the opportunity to overcome such deficiencies. Leaving aside the leak issue for the moment, there is no suggestion that the Applicants did not understand what matters were in dispute between the parties. The Respondent denied any liability for the matters the subject of the Applicants’ complaints. In our view, the obligations of the Tribunal under s 29 do not oblige a Tribunal Member to proactively assist an applicant to identify and address shortcomings in the applicant’s case. In our view, an allegation of a denial of natural justice or procedural fairness raises a question of law (and does not require leave of the Appeal Tribunal). For the reasons set out above, we consider that the Applicants have failed to establish that they were denied natural justice or procedural fairness in respect of the first two matters the subject of complaint.
- That leaves the third matter. By way of a brief background to this issue, the Applicants brought an earlier application to amend the Application to include the leak issue. The application (filed on 2 October 2014) sought an order either amending the claim against the Respondent to include the leak issue or to review the decision of the QBCC dated 29 October 2014. That application was refused by an order of the Tribunal on 10 October 2014. It may have been expected that that would have been the end of that matter. However, during the opening discourse between the Member and Ms Terera, the Member sought to clarify the issues that were in dispute. During that discourse, the Member noted that there was reference in the material to a leak in one of the bathrooms. Following an exchange between the Member and each of Ms Terera and the solicitor for the Respondent, the Member formally ordered that ‘the dispute be enlarged to include that issue in relation to the leak in the shower’ (in the studio bathroom) so that the proceedings would encapsulate that factual issue as well.
- The exchange between the Member and the parties leading to this order is found in the Transcript from page 7 line 5 to page 9 line 21. The order was made in the following context. First, the issue was raised by the Member; it was not the subject of an application by either party. Secondly, the solicitor for the Respondent informed the Member that his preparations for the hearing were on the basis that the studio bathroom leak would be included. It appears that the solicitor was unaware of the previous order of the Tribunal refusing the Applicants’ application in this regard. Thirdly, Ms Terera agreed to the proposal to include the leak issue in the proceeding. However, there is no suggestion that the Applicants had prepared the matter for hearing on the basis that the leak issue would be dealt with by the Member. Fourthly, the Member initially indicated he could not deal with the leak issue if it had been ‘formally excluded from these proceedings’ but subsequently indicated that he had power to ‘vacate’ the earlier order.
- Before further addressing the issue of denial of procedural fairness, it is necessary to consider whether the Member had power to make the order he did. This matter was raised with the parties, by the Appeal Tribunal, during the hearing of the Application. The Respondent submits that the Tribunal had power to vacate (or ‘vary’) its own directions by virtue of one or more of s 28(1), s 9(4) or s 62(1) of the QCAT Act.
- The QCAT Act contains a number of provisions addressing matters involving the amendment, setting aside, renewal or correcting of decisions. Section 51 provides for the setting aside of a decision given by default. Section 88 provides for the amendment of an order giving effect to a settlement of a proceeding. Section 133 provides for the renewal of a final decision. Section 135 provides for the correcting of a decision if the decision contains a defect, mistake or error identified in subsection 135(1). Division 7 (ss 136-141) provides for the reopening of a proceeding (other than an appeal under Division 1 of Part 8) if a reopening ground exists. In our view, none of the above provisions applies to the circumstances as they pertained before the Member in relation to the earlier order of the Tribunal.
- We are prepared to assume for the purpose of the Application, without deciding, that the Member had power to ‘enlarge’ the Application to include the leak issue by virtue of subsections 28(1) and 28(3)(b) of the QCAT Act. Assuming that to be the case, we consider that any such discretion is one which should be exercised sparingly having regard to the desirability of finality of litigation, including interlocutory orders. In the present case, the order was made by the Member with the consensus of both the Respondent and the Applicants. However, the order was made in the context of the matters identified in paragraph 21 above.
- The Respondent submits that there was no lack of procedural fairness because, first, Ms Terera is an educated, legally qualified person and consented to the inclusion of the leak issue; secondly, that the Applicants had no intention to produce better evidence in the proceeding in relation to the leak issue (and reference is made to two passages from the transcript); thirdly, that the issue is ‘very likely to be not one caused by the Respondent’; and fourthly, it would be unfair on the Respondent to require him to have to ‘re-defend’ the same alleged defect again when the Applicants clearly wanted to have that issue determined in the proceeding.
- The Applicants complain that they were not afforded any time to prepare any evidence in relation to the leak issue and that procedural fairness requires a party the opportunity to present their case (and submit that Mrs Terera was not a tradesperson and was not in position to challenge or refuse the Respondent’s statements about the cause or possible causes of the leak ‘meaningfully’). The Applicants contend that Ms Terera was satisfied with allowing ‘some discussion’ about the leak issue as it had a bearing on the fact that the Applicants would have accepted an offer to settle the matter but for the leak issue.
- The thrust of the Applicants’ case appeared to be that Ms Terera was prepared to deal with the leak issue in the limited sense identified above. It seems necessarily implicit in the Applicants’ case that the Applicants did not appreciate that the Tribunal would reach a concluded decision about the liability of the Respondent to the Applicants in respect of the leak issue.
- A concerning aspect of the inclusion of the leak issue is that the Applicants must necessarily have appeared at the hearing expecting that the leak issue would not be dealt with (the Tribunal having previously refused their application to add that matter to the issues for determination in the proceeding). Further, on the basis of the statements made by the Respondent’s solicitor to the Member at the hearing below, the Respondent had prepared for the application in anticipation of dealing with the leak issue at the hearing. The Member appears to have been the catalyst for the inclusion of the leak issue with the Respondent indicating a willingness to deal with the issue and then the Applicants, by Ms Terera, agreeing to the inclusion of that issue.
- Although it is relevant that Ms Terera was legally qualified, there is no suggestion that she was a litigator or otherwise had experience in building matters. It appeared to be common ground that Ms Terera did not hold a practising certificate. While the Member may have assumed that Ms Terera appreciated that the enlargement of the matter to include the leak issue would require the Applicants to lead evidence to satisfy the Tribunal that the Respondent was liable (in negligence or contract) for the leak in the shower, the Member did not, on our reading of the Transcript, seek to clarify that with Ms Terera.
- The passages relied upon by the Respondent in relation to the unpreparedness of the Applicants to spend money investigating the leak, are, in our opinion, directed, in both instances, to a statement that the Applicants were not previously prepared to expend significant money investigating same in the context of their dissatisfaction with what they saw as an inability of the QBCC (also referred to as the ‘BSA’) to get to the bottom of the matter. The fact remains that the Applicants did not have an opportunity to prepare evidence in anticipation of addressing the leak issue.
- The Respondent’s submission that the issue is very likely to be one not caused by the Respondent is a factual matter which does not address the core issue of whether the Applicants were denied procedural fairness by the Member’s approach to addressing the leak issue. A similar observation may be made in relation to the further submission that it would be unfair on the Respondent to require him to have to defend the issue in any further proceeding that the Applicants may bring in relation to the leak issue. In our view, that is not relevant if the leak issue should not have been agitated at the hearing in the first place.
- In our view, the Applicants were denied procedural fairness in the circumstances. The matter of enlarging the application to include the leak issue was raised with Ms Terera without any prior notice. The Member did not clarify the ramifications of proceeding with the leak issue. Notwithstanding Ms Terera is qualified as a lawyer, I respectively consider that the Member, consistently with s 29 of the QCAT Act, should have clarified with Ms Terera the consequences of proceeding with the leak issue, particularly in the context where it was raised by the Member without prior notice. Ms Terera was not offered the opportunity to reflect on the proposal put by the Member. We consider it self-evident that the Applicants must have been at some disadvantage in running such a case in circumstances where they had no prior knowledge that it was to form part of the case so as to enable them to prepare accordingly.
- The Respondent submitted (in the alternative) that if the Appeal Tribunal determined that the leak issue should not have been dealt with it, is proper to make a declaration (under section 60 of the QCAT Act) that the Applicants are not prevented from bringing a fresh application in respect of that issue.
- In our view, the proper order is to set aside the Member’s order that the application be enlarged to include the dispute in relation to the leak issue. We consider that this order is permitted by section 146(d) of the QCAT Act. The intended effect of such an order is that the dismissal of the original application by the Member does not affect the ongoing dispute in relation to the leak issue; the order dismissing the original application stands but it has no operative effect in relation to the leak issue.
Jones v Dunkel argument
- The Applicants’ submissions refer to the Respondent’s representative relying upon the principle in Jones v Dunkel and submit that there was no basis to support the inference. The rule in Jones v Dunkel enables a tribunal of fact more confidently to draw an inference of fact in favour of a party from the opposing party’s unexplained failure to call a witness whom that party would be expected to call in order to give evidence concerning the fact.
- The difficulty with the submission is that it is not demonstrated that the Member wrongly relied upon such principle in reaching the conclusions he did. On reviewing the reasons recorded in the Transcript, we have not located any reference to that principle by the Member. The Member referred to the absence of three witnesses. The first was the maker of a quotation relied by the Applicant (Mr Stacey). The Member said that given that he had not been called it was ‘difficult, in those circumstances, for me to make much of that quote, which goes ultimately to issues of quantum’. In our view, the Member did not draw any Jones v Dunkel influence, he merely stated that he was not prepared to place reliance on the quote in the absence of the maker of it.
- The second person whose absence was noted by the Member was a Mr Bonney. The Member referred to part of an email provided by Mr Bonney which stated that the tiling was not of a high standard and that he was unable to perform any remedial works to make the tiles appear acceptable. The Member said that he was not prepared to attach ‘any significance or weight’ to that email in Mr Bonney’s absence (who had not been made available for cross-examination) and the ‘metes and bounds of his assertions are therefore unable to be properly tested’. In our view, the observations made by the Member do not amount to the drawing of any particular inference consistent with the principle in Jones v Dunkel. The Member stated that he was not prepared to attach any weight to the statements contained in the email given that the maker had not been made available for cross-examination. We consider that it was open to the Member to do so.
- The third person was a Mr Theslow, who was presumed by the Member to be a licensed plumbing contractor who provided a plumbing inspection report for the QBCC. The Member noted that Mr Theslow had not been called as a witness but observed that the ‘logical inference to be derived’ from the report was that the leakage fell outside the Respondent’s scope of works. This evidence concerned the leak issue. As noted above, the order enlarging the application to include that dispute will be set aside and the Member’s findings are of no moment as a consequence. In any event, we consider that the observations by the Member do not involve any reliance on a Jones v Dunkel inference.
- In our view, the matters complained of by the Applicants involve a mixed question of fact and law. In our view, there is no reasonable prospect of success on that argument and leave to appeal is refused. Even if such matters involved a question of law only, we consider that the Applicants have failed to make out that ground.
Wrongful rejection ground
- The Applicants’ submissions in this context are contained in paragraph 4 (headed ‘Unsatisfactory Conduct by the Respondent’), paragraph 5 (headed ‘Member was dismissive of the evidence provided’) and paragraph 7 (headed ‘Member accepted all of the Respondent’s evidence’) of the Applicants’ written submissions.
- In order to consider the matters raised by the Applicants, it is necessary to examine the basis upon which the Member dismissed the Application.
- The Member proceeded on the basis that the Applicants’ claim was based on the tort of negligence (which he referred to as a breach of a duty to perform the work in a proper and tradesman-like manner) and/or a claim for breach of contract, specifically an implied term that the works would be performed in a ‘proper, efficacious, and tradesman-like manner’.
- The Applicants have accurately identified the content of the implied term as one that the subject work would be carried out in an appropriate and skilful way and with reasonable care (and skill).
- The Member referred to the photographs relied upon by the Applicants at the hearing (which were also relied upon in support of the Application before the Appeal Tribunal). The Member said:
‘It must be said that the photographs are not especially helpful. They appear to be photographs taken on a mobile phone, and they are poor quality reproductions. It is difficult to discern from the photographs precisely the nature of the problem. It is evident in some, that some tiles contain discolouration. It is evident in some that there is [sic] some cracks in some tiles, but the fidelity of those photographs does make it difficult to precisely make out the nature of the complaints.
Although the photographs are not an [sic] especially good quality, they do it least reveal the essence of the problems that the applicants now complain of …‘
- The Member further said:
‘We only have a series of jpg photographs taken with what looks to be a mobile phone, the quality of which, as I’ve said, is quite poor.’
- Upon viewing the photographs relied upon by the Applicants, it is evident that there was a lack of clarity in the photographs and it has been acknowledged by the Applicants that they could have been of better quality and they sought to lead further evidence in this regard (although they assert that the photographs were sufficient to demonstrate the various matters of complaint).
- The Member stated that the Applicants bore the onus of discharging their case against the Respondent by demonstrating evidence ‘which is sufficient and satisfactory for a proceeding such as these ones, that there is a case to be brought and answered by a respondent in terms of the legal claim that is brought against them’.
- In rejecting the Applicants’ case, the Member addressed the various issues in the following manner.
- With respect to the lippage issue, the Member accepted the Respondent’s evidence that some tiles were replaced by him after a request for rectification by the Queensland Building and Construction Commission (‘QBCC’) and that he was working with a difficult style of tile and that there were some lippage issues which he had ‘addressed’ to the satisfaction of the QBCC.
- With respect to the stainage issue, the Member said:
Questions of efflorescence remain simply unanswered. It is clear from the photographs that there is something here going on with these tiles, but I’m not prepared, on the basis of this evidence, to attribute blame for that at the feet of Mr Clifford. Mr Clifford says that he made several efforts to improve the appearance of the tiles and applied CLR, a well known product, to these tiles to no avail. It may be that there is a defect in the tiles themselves. It may be that there is a defect in the application of the tile sealant product by Dr Bolhar. We just do not know. It is not the purpose of a tribunal such as this one to try and second guess the evidence, but, rather, to make findings of fact on the basis of evidence before it. In the absence of evidence, I am not prepared to make a finding in relation to causation.
- With respect to the issue of the bulging of the walls and the picture framing, the Member said that ‘Similarly … there is simply no evidence before me that I can rely upon’.
- The Member had earlier noted that there was no expert report that described the extent of any lippage between tiles and there was no expert report that ‘descends into issues relating to tiles and efflorescence’.
- The Applicants are seeking to challenge the factual findings made by the Member in relation to the various matters of complaint (or, at least, raise mixed questions of fact and law).
- In Laing & Anor v Kokkinos & Anor (No 2)  QCATA 247 Justice Alan Wilson, President, set out the applicable principles to determine the question of whether or not leave to appeal should be granted in cases involving a question of mixed law and fact. His Honour said:
Is there a reasonably arguable case of error in the primary decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?
- The first and second questions were treated as cumulative requirements by his Honour in Bannink v Solar Energy Group Pty Ltd  QCATA 148 at . In Laing, Justice Wilson cited with approval a decision of the New South Wales Court of Appeal in Cachia v Grech  NSWCA 232 where the Court said:
It is important to keep in mind that for leave to appeal to be granted in a case such as this, the court must be satisfied not merely that there is a reasonably arguable case of error, but also that there is a reasonable prospect of substantive relief being obtained.
- With respect to the lippage issue, having regard to the photographs, we do not regard the evidence of the lippage as ‘self–evident’. It is not disputed that the Respondent was instructed by the QBCC to rectify various work. Although it is not entirely clear, it appears that this rectification work included rectification of the lippage issue. It also appears that the Applicants remained unhappy with the rectified work. The QBCC decided to take no further action in relation to same. The Member found that the lippage issues had been ‘addressed’ to the satisfaction of the QBCC. The Applicants contend that the QBCC was not so satisfied but, rather, was not prepared to make any further direction to rectify given the outstanding moneys that were payable to the Respondent. In our view, the critical issue is the extent, if any, to which the lippage issue was evident following the rectification work and, to the extent it was still evident, whether the rectified work fell short of the requirement that it be carried out in an appropriate and skilful way and with reasonable care and skill. In our view, the state of the evidence is such that it was open to the Member to find that the Applicants had not proved the case in either respect.
- With respect to the staining issue, the Member accepted that an issue did exist. However, the Member was not satisfied that it was a matter in respect of which the Respondent should bear responsibility on the basis of the evidence adduced. The Member noted the application of tile sealant by Dr Bohlar, although the Applicants point out that the Respondent supplied the sealer and that the sealing of the tiles was a very simple process. The Member had previously noted the absence of any expert evidence in this regard. In our view, it was open to the Member to find that he could not be satisfied of the cause of the staining (nor that any such cause resulted from a failure by the Respondent to perform the work in accordance with the required standard).
- With respect to the issue in relation to the bulging walls and in relation to the picture framing, the Member found that there was no evidence that he could rely upon.
- In our view, the photographic evidence does not satisfactorily depict the bulging of the walls. Further, having regard to the balance of the evidence and the Member’s findings in relation to same, we consider that it was open to the Member to find that the Applicants had not proved their case in this regard.
- With respect to the ‘picture framing’, we are satisfied that the photographic evidence does depict this effect around the border of the tiles is photographed. However, in the absence of any expert evidence on the issue, and given that it was Dr Bohlar who sealed the tiles, we consider that it was open to the Member to find that the Applicants had not proved their case this regard.
- For the reasons discussed above, we cannot be satisfied that the Applicants have demonstrated that there is a reasonably arguable case of error in the primary decision and that there is a reasonable prospect that the Applicants would obtain substantive relief if leave were granted. In our view, leave to appeal in relation to the matters raised in paragraphs 4, 5 and 7 of the Applicants’ written submissions should be refused.
- The Member referred to an application being made by the Respondent for costs and said, relevantly, ‘There is an entitlement to costs, which is available pursuant to provisions of section 77 of the Act [the QBCC Act], and I am going to order that costs be paid.’
- The phraseology adopted by the Member is, in our view, capable of two interpretations. First, that the Respondent had a right to his costs, pursuant to s 77 of the QBCC Act (presumably on the basis that the Respondent was successful). Secondly, that there was power to order costs under s 77 and that the Member was exercising the power in favour of the Respondent. In supplementary submissions filed by the Respondent in accordance with directions made by the Appeal Tribunal at the hearing, the Respondent cited the Oxford Dictionary as stating that the word ‘entitlement’ can mean a ‘right’ or it can mean ‘power’ or ‘deserving’. The Respondent submitted that the Member couched the word in terms of the availability of the power to award costs under section 77. The sixth edition of the Shorter Oxford English Dictionary defines the term ‘entitlement’ to mean, relevantly, ‘the fact of being entitled or qualified’. The term ‘entitled’ is defined to mean, relevantly, ‘confer on (a person or thing) a rightful claim to something or a right to do’. In our respectful view, the language adopted by the Member is ambiguous. However, when regard is had to an earlier observation by the Member in relation to the question of costs, it seems clear that the Member, in his oral reasons, was referring to the word ‘entitlement’ to mean ‘right’ rather than a ‘power’.
- The earlier exchange between the Member and Ms Terera was as follows:
MEMBER: All right. Ms Terera, is there anything you wish to say by way of reply? I will give you a right of reply, particularly in relation to the issue of costs. And any legal matters that has been raised by Mr Panayi.
MS TERERA: Obviously, I wouldn’t be in favour of, you know, me paying the respondent’s legal – legal costs. I could – I could equally say I have costs of my own. I – I don’t really understand where he’s coming from with ---
MEMBER: Well, generally in litigious proceedings, costs ---
MS TERERA: Even in QCAT?
MEMBER: --- follow the result. Well, certainly in respect of building type matters, there is quite a line of authority that say that costs do follow as a consequence of one or the other party losing. Is there anything you wish to say about that, or not?
MS TERERA: No. I don’t.
MEMBER: All right. (underlining added)
- The Tribunal’s discretion to award costs in a building dispute is a broader and more general discretion than the one conferred by the QCAT. However, there is no automatic rule that costs ‘follow the event’ (that is, the outcome of the proceeding) or that the unsuccessful party must compensate the successful one; the discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them; otherwise, the factors affecting the discretion will vary in each case.
- In our respectful view, in addressing the question of costs, the Member acted on a wrong principle, namely that the Respondent had an entitlement (right) to costs because he was successful in the proceeding.
- We are also of the view that there is a further issue in relation to the Member’s decision in relation to costs. There is an absence of reasons in relation to the decision to order costs in favour of the Respondent. The absence of reasons is, in our view, consistent with the Member’s approach that costs automatically follow the event. Even if the Member had proceeded to determine the question of costs in the exercise of the Tribunal’s discretion, there is an absence of stated reasons for the exercise of such discretion. Potential matters which may be relevant to the discretion include a consideration of the fact that the Respondent but not the Applicants had legal representation and the quantum of the claim and counterclaim.
- Additionally, the Applicants have had partial success on the appeal (in relation to the leak issue).
- In light of the above reasons, we consider that it is appropriate that the following orders be made:
- Leave to adduce further evidence is refused.
- Leave to appeal the costs order below (order number 3 of the Decision) is granted.
- Otherwise leave to appeal is refused.
- The appeal is allowed in part.
- The Member’s order that the application be enlarged to include the dispute in relation to the leak in the studio shower is set aside.
- Order number 3 of the Decision is set aside.
- Otherwise the appeal is dismissed.
- The matter is returned to the Tribunal for reconsideration according to law on the question of costs.
Costs of the Application
- The Appeal Tribunal will allow the parties 14 days to file written submissions in relation to the question of costs of the Application for leave to appeal and the Appeal.
 Transcript below at T 94 lines 4-20. See the statements by Ms Terera to the Member at T 6 lines 3 – T 7 line 3.
 Transcript below at T 10 lines 23-25 and T 94 lines 14-20.
  1 Qd R 252.
 Ibid, at -.
Kerr v Paku and Anor  QCATA 157 at , cited with approval in Mannix v Chris Neale Constructions Pty Ltd  QCATA 222 at  per Peta Stilgoe, Senior Member, Justice Alan Wilson, President agreeing.
 Applicants’ Submissions on Appeal, paragraphs 6.1 and 6.2.
 Applicants’ Submissions on Appeal, paragraph 6.3.
 Applicants’ Submissions on Appeal, paragraph 6.2.
 (1959) 101 CLR 298.
 QCAT Act, s 29(1)(a).
 See QCAT Act, s 142(3).
 Transcript below at T 9 lines 23-34.
 Transcript T 7 lines 39-45.
 Transcript T 9 lines 15-17. See also T 53 lines 7-32.
 Transcript T 8 lines 1-6.
 Transcript T 8 lines 25-26.
 Applicants' supplementary submissions, paragraph 2.11 and 2.13.
 Respondent's supplementary submissions, paragraph 11.
 Goodhue v Volunteer Marine Rescue Association Incorporated  QCA 234 at .
 Transcript at T 95 lines 14-17.
 Transcript at T 95 lines 27-31.
 Transcript T 94 lines 24-36.
 Applicants' submissions, paragraph 4.3. See s 44 of the Domestic Building Contracts Act 2000 (now repealed but applicable to the agreement between the parties).
 Transcript below at T 94 line 45 – T 95 line 7.
 Transcript below at T 95 lines 39-41.
 Transcript below at T 95 lines 7-12.
 Transcript below at T 95 line 45 – T 96 line 2.
 Transcript below at T 96 lines 4-13.
 Transcript at T 96 lines 15-16.
 Transcript at T 95 lines 35-38.
 At .
 At .
 Applicant's submissions, paragraph 5.4.
 Applicant's submissions, paragraph 5.5.
 Applicant's submissions, paragraph 7.3.7.
 Transcript below at T 97 lines 5-6.
 Respondent’s supplementary submissions, paragraph 26.
 Transcript below at T 92 lines 11-30.
 Campbell v Kerry M Ryan Pty Ltd  QCATA 58 at , citing Lyons v Dreamstarter Pty Ltd  QCATA 142. See also Stuart Holmes and Renovations v Denton and Anor  QCAT 43 at .
Lyons v Dreamstarter Pty Ltd  QCATA 142 at .
 QCAT Act, s 143(3)(h)(iii).
 QCAT Act, s 146(c).
- Published Case Name:
Sandra Phyllis Terera and Robert Bohlar v Alan Clifford
- Shortened Case Name:
Terera v Clifford
 QCATA 25
Senior Member O'Callaghan, Member Lumb
05 Feb 2016
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QCATA 25||05 Feb 2016||Leave to appeal  QCAT 534. Leave to appeal costs order granted and remitted to QCAT.|
|Primary Judgment|| QCAT 82||12 Apr 2016||Remitted QCAT decision on costs|
|Notice of Appeal Filed||File Number: Appeal 10580/16||17 Oct 2016||-|
|Appeal Determined (QCA)|| QCA 181||18 Aug 2017||Application for leave to appeal  QCATA 25 and  QCAT 82 refused: Morrison JA and Atkinson and Douglas JJ.|