Holliday v Franklin (QLD) Pty Ltd
[2017] QCATA 8
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- Unreported Judgment
- Holliday v Franklin (QLD) Pty Ltd[2017] QCATA 8
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Holliday v Franklin (QLD) Pty Ltd[2017] QCATA 8
Holliday v Franklin (QLD) Pty Ltd[2017] QCATA 8
CITATION: | Holliday v Franklin (QLD) Pty Ltd [2017] QCATA 8 |
PARTIES: | Fiona Holliday David Holliday (Applicants/Appellants) v Franklin (QLD) Pty Ltd (Respondent) |
APPLICATION NUMBER: | APL280-15 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Stilgoe OAM Member Howard |
DELIVERED ON: | 23 January 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – where party failed to attend scheduled hearing – where decision reserved – where party attended at Tribunal later the same day – where directions hearing subsequently held with parties to discuss further hearing – where cross-application dismissed without hearing on the merits – whether error of law – whether procedural fairness observed APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – construction of clause relating to no adjustment in contract price for different dimensions – whether tribunal erred in construction of clause – whether error of law APPEAL – LEAVE TO APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – CERTIFICATES – whether the principal or the builder should pay for the final certificate – whether an order needed to be made for issue of the final certificate APPEAL – LEAVE TO APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – variation – where not in compliance with contract or Domestic Building Contracts Act – whether approval properly given by Tribunal – whether error of fact and law Domestic Building Contracts Act 2000 (Qld), s 84 Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1, s 62 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 47, s 48, s 93, s 142, s 143A Pickering v McArthur [2005] QCA 294 Ericson v Queensland Building and Construction Commission [2014] QCA 297 Albrecht v Ainsworth & Ors [2015] QCA 220 |
APPEARANCES: |
|
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]Fiona Holliday and David Holliday (‘the homeowners’) entered into a contract on 25 June 2013 with Franklin (QLD) Pty Ltd (‘the builder’) for the construction and completion of a new garage and storeroom (the extensions) at the homeowners’ premises. As the works progressed, changes were made to the scope of works. Some of those changes were unwritten variations to the contract.
- [2]Disputes subsequently developed between the homeowners and the builder. Ultimately, not all of the builder’s claims were paid.
- [3]The builder applied to the Tribunal for an order that the homeowners pay his outstanding claims totalling some $36,140, plus interest and costs. The homeowners filed a response and counter-claim. They sought orders that the builder’s claim be dismissed with costs, and that he be ordered to provide them with a final certificate for the extensions. Further, they counter-claimed damages for rectification of a concrete swimming pool. The construction of the pool was the subject of a separate and earlier building contract between the builder and the homeowner.
- [4]The proceeding was listed for hearing on 1 May 2015 at 9:30am. The builder’s director appeared on its behalf. There was no appearance for the homeowners. Despite repeated attempts by the Tribunal, the homeowners were unable to be contacted.[1] The Tribunal decided to proceed in the absence of the homeowners.[2] The hearing finished by midday. The builder left the Courthouse.[3]
- [5]The Tribunal records that at about 1:15pm, Mr Holliday arrived at the Courthouse wishing to proceed with the hearing.[4] The Tribunal Member listed the matter for a Directions Hearing on a subsequent day.[5] With the agreement of the parties reached during discussions at the directions hearing, the Tribunal proceeded to determine the builder’s claim relating to the extensions on the papers without a further oral hearing.[6]
- [6]However, during the directions hearing, and despite Mr Holliday’s protestations, the Tribunal told the parties that it would not be making any determination about the pool.[7] It advised the parties that only the claim regarding the extensions, and not the pool, was before it.[8] It is apparent from the Transcript of the Directions Hearing that the Member mistakenly believed at that time that the claim regarding the pool was not before it. It explained that it was aware of another file about the pool, but explained that file was not joined for hearing with the extensions claim.[9] The separate file referred to appears to have been the application filed by the homeowners for review of a decision of the Queensland Building and Construction Commission (QBCC) to refuse to issue a direction to rectify to the builder for the pool.[10] At that time, the review application was stayed, pending the determination of the contractual claims.
- [7]In its reasons for decision, the Tribunal subsequently recorded as follows:[11]
[13] The Directions Hearing took place by telephone at 9 am on 21 May 2015. Both parties indicated they were eager for the matter to be completed and that they were prepared for a decision to be made without a further oral hearing. I indicated I would not be prepared to determine the pool application in that way but finalisation of this claim would allow the QBCC claim to proceed. The parties indicated they were satisfied with that approach.
[14] The builder was prepared to proceed to hearing on the day listed and had its witnesses available. It is reasonable for its claims to be finalised without delay. I am prepared to determine the claim relating to payments outstanding under the contract and the variations based on the documents before me under the provisions of s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[15] However the counterclaim relating to the pool requires a hearing to allow cross examination of the expert witnesses. The owner has filed evidence claiming an amount of $195,000 for the demolition and reconstruction of the pool. The builder says the pool damage is due to circumstances outside his control. To reopen or continue the hearing for this purpose would delay the finalisation of the builder’s claim.
- [8]The Tribunal subsequently made orders relating to the extensions that the homeowners pay the builder an amount of $18,448.83, and dismissed the counter-claim relating to the pool contract without a hearing on the merits about it.[12] It observed that it appeared the final certificate was no longer required, but did not dismiss the claim for it.[13]
- [9]The homeowners made application for leave to appeal and appeal in respect of the Tribunal’s decision.
The application for leave to appeal and appeal
- [10]The homeowners’ grounds of appeal allege an error of law and several alleged errors of fact and/or mixed law and fact by the Tribunal. Leave of the Appeal Tribunal is required in deciding an appeal on a question of fact or mixed fact and law.[14] Leave to appeal will usually only be granted where there is a reasonable argument that the decision of the Tribunal was attended by error, and it is necessary to correct a substantial injustice to the applicant caused by that error.[15] If leave is given, the appeal is by way of rehearing.[16] Evidence which was not before the Tribunal when it made its decision may be allowed on rehearing, at the Appeal Tribunal’s discretion.[17]
- [11]Leave is not required in deciding an appeal on a question of law. If an error of law is established, the Appeal Tribunal may substitute its own decision for the Tribunal’s based on the facts as found by the original Tribunal, if the question of law disposes of the matter in its entirety.[18] Otherwise, the Appeal Tribunal must remit the proceeding to the Tribunal for determination according to law.
The grounds of appeal
- [12]The alleged error of law is said to arise from the Tribunal’s interpretation or construction of the domestic building contract between the parties, and in particular Clause 29.2, having regard to Clause 3.2.
- [13]The alleged errors of fact and/or mixed fact and law concern findings, as follows:
- That the payment of Invoice #112 indicated that the homeowners had accepted a variation during construction to the extension of the garage by an extra 600 mm (three storeys high), as referred to in paragraph [38] of the Tribunal’s reasons for decision;
- That the homeowners had accepted a variation relating to the exposed driveway and slab by signing the quote, as referred to in paragraph [44] of the Tribunal’s reasons for decision;
- That the homeowners have a final certificate for the extension, as referred to in paragraph [51] of the Tribunal’s reasons for decision; and
- That the counter-claim relating to the pool should be dismissed, despite evidence from QBCC representatives, concluding that the pool required either partial or complete demolition, as referred to in paragraph [56] of the Tribunal’s reasons for decision.
Ground of appeal alleging error of law
- [14]It is useful to explain the context of the alleged error of law. The builder rendered Invoice #5678 in the sum of $8,180.72 relating to the shed extension of 600 mm over and above the dimensions specified in the plans. Mr Galea, the director of the builder, gave evidence that the extension was for 600 mm for the length and height of the three-storey garage. In particular, his evidence was that Mr Holliday required the additional length in order to accommodate his boat. The extension was requested, according to Mr Galea, while the footings were being dug.
- [15]The homeowners say the contract specifically provides for a change in dimensions at Clause 29.2 and that no extra payment could be charged by the builder.
- [16]Clause 29 of the contract is a miscellaneous provision. Each subsection of clause 29 provides for a variety of, largely unrelated, issues, including subcontracting rights under the contract, parties rights to assign under the contract, copyright and providing for the contract to be governed by the laws of Queensland.
- [17]The sub-paragraph in contention is as follows:
29.2 No adjustment to contract price for different dimensions
All dimensions in this contract are approximate to the extent that they are based on dimensions estimated from any existing building on the land. Subject to this contract, the contract price shall not be adjusted if actual dimensions vary from estimated dimensions.[19]
- [18]The homeowners’ argument about the alleged error of law is said to rely upon Clause 3.2. Clause 3 of the contract is entitled ‘Discrepancies and Ambiguities’. In particular, Clause 3.2 reads as follows:
3.2 Contract complete in itself
The parties acknowledge that the terms of this contract are set out in the contract and it shall not be altered, varied, suspended, deleted or affected by reference to any prior representations, conditions or agreement, whether written or verbal.[20]
- [19]In its reasons for decision, the Tribunal said:[21]
I have formed the view the [sic] Clause 29.2 of the contract is intended to cover the usual variations that can occur in a building but it is not meant to exclude a deliberate change of this magnitude…
- [20]It is fundamental that construction of contractual terms must occur in context. In this case, clause 29.2 must be read in the context of the contract in its entirety. As indicated earlier, it occurs in a miscellaneous clause covering a variety of largely unrelated matters. Variations to a contract by agreement are specifically provided for in Clause 12.[22] Specifically, variations by agreement are anticipated by the contract and a method set out for documenting them. Further, the contract, as a domestic building contract, was subject, at that time, to the now repealed Domestic Building Contracts Act 2000 (Qld) (DBC Act). The provisions of the DBC Act continue to apply for a domestic building contract, and the parties to it, entered into before the repeal.[23] As the Tribunal discussed in its reasons for decision,[24] the DBC Act also provides for variations.[25]
- [21]Sub-clause 29.2 provides that all dimensions in the contract are approximate, ‘to the extent that they are based on dimensions from any existing building’ and that, subject to the contract, there should be no adjustment to the contract price if the actual dimensions vary from the estimated dimensions. Having regard to the specific provision for variations to the contract in Clauses 12 and in the DBC Act, it is apparent that the deviations in dimensions contemplated in 29.2, are of a minor or inconsequential nature which may occur when measurements are taken accurately, but not perfectly, from existing structures. For example, this would apply if the new garage had ultimately been positioned 2-3 millimetres to the right of the position indicated in the plans. It does not apply to price increases where the dimensions of the structure that comprise the works are varied.
- [22]Sub-clause 3.2 does not assist the homeowners’ argument. It simply provides that prior representations, conditions or agreement written or verbal do not affect the contract. That is, it refers to events that occurred before the Contract was formed. The variation claimed by the builder relates to events after the contract was entered into and when the footings were being dug for the shed.
- [23]The variation whereby the shed was an extra 600 mm in length for the full height of the construction over and above what had been contracted for is not covered by sub-clause 29.2. It fell under clause 12 or, if not documented as required by the contract, under s 84 of the DBC Act.
- [24]The Tribunal’s reasons for decision disclose that the Tribunal construed sub-clause 29.2 such that it applied to minor variations, but not a deliberate change of the magnitude concerned here of 600mm. In construing clause 29.2, the Tribunal does not appear to have appreciated that it related only to the distance from existing structures on the land.
- [25]In discussing clause 29.2, the Tribunal did not explicitly refer to the specific provision in clause 12 for variations or the DBC Act. However, on a fair reading of the reasons for decision as a whole (noting especially paragraphs [9] and [29-31], and that in [38], the Tribunal refers to, although without specifying the provisions of the DBC Act, the correct issues[26] for determination in deciding to approve payments to the builder), it is sufficiently clear that the Tribunal construed the provision having regard to the requirements for a valid variation and, in the absence of it, procedure for the Tribunal’s approval to be obtained for amounts claimed as variations.
- [26]The Tribunal erred in its construction of clause 29.2, but not in the manner contended for by the homeowners. Despite this error, it ultimately made the correct decision about whether 29.2 applied and then applied the correct legal test.
- [27]Accordingly, although we would allow the appeal on this ground, the decision would be unchanged on this basis alone. That said, there are other factual errors made as discussed in the following paragraphs.
Grounds of appeal alleging errors of fact and mixed fact and law
1. Payment of Invoice #112 referred to in paragraph [38] of the reasons for decision
- [28]The Tribunal’s reasons for decision refer to the homeowners having paid Invoice #112 for the cost of revised drafting of the plans as ‘indicating they accepted the change’. On that basis, the Tribunal decided that it would not be unfair to the homeowners for the builder to recover an amount for the variation in the circumstances because they had received the benefit of a larger garage, and it would result in unreasonable hardship to the builder if the claim was refused.
- [29]
- [30]The builder’s submissions acknowledge that it erred in stating that Invoice #112 was for the final plans. The final (and third set of plans) which incorporate the additional 600 mm were completed later, at some time before 4 November 2014,[29] although the plans themselves do not appear to be dated.
- [31]The homeowners deny instructing the 600 mm extension. That said, the homeowners do not deny that the 600 mm extension was done. They suggest that the builder’s representative was frequently responsible for suggesting changes.[30]
- [32]In any event, it is evident on the basis of the documents that were before the Tribunal that Invoice #112 could not have been for the final plans incorporating the 600 mm extension in light of the dates of the relevant documents and evidence about when the works commenced. We accept that the Tribunal made an error of fact in finding that payment of invoice #112 indicated the homeowners accepted the change.
- [33]However, it is inherently improbable that the builder, of its own volition and without instruction/request from the homeowners to do so, incurred the considerable expense of extending the three story structure by 600 mm. The witnesses for the builder say that Mr Holliday requested it in order to accommodate his boat. This is an entirely plausible explanation for the request. The Tribunal did not discuss or consider the inherent probability of the evidence about this issue. However, if the matter was reheard we would do so, and would conclude on the basis of inherent probabilities, that the builder’s witnesses explanation about the circumstances and reason for the extension should be accepted as more probable and the homeowners evidence found to be inherently improbable.
- [34]Because of our view of the evidence, we would come to the same conclusion as the Tribunal that approval should be given for the builder to recover an amount for the variation. Accordingly, we would not grant leave for appeal on this issue as we do not consider that there is a substantial injustice to be corrected.
- Alleged error that the home owner signed a variation document, as referred to in paragraph [44] of the reasons for decision
- [35]In dealing with the claims for the exposed driveway and slab claimed in Invoices #2808 and #1253, the Tribunal found as follows:[31]
[43] Both parties agree the builder did not complete the concreting work on the driveway. The builder reduced its claim based on the quoted amount of $3464 for the driveway to $2808 to allow for this partial completion of the work.
[44] The owners changed the amount for the slab from $1253 to $1053 before signing the variation saying this was the amount verbally quoted. The builder says this verbal quote was a mistake because it left out labour and claims the higher amount. The owner has accepted the quote at the lower amount so this is the full amount that can be claimed based on the signed variation.
- [36]The documents relied upon by the Tribunal in making this finding are attached the statement of Mr Galea filed on 20 August 2014 at Attachment O[32] and Attachment Q.[33] Based on the documentation signed by the homeowner, the Tribunal explains its conclusion that the homeowner had signed variations agreeing to pay the amounts of $3464 (for which the builder reduced his claim to $2808, because ultimately he completed only part of the work) and $1,053.00 for the exposed driveway concreting and render.
- [37]The homeowner says that the Tribunal erred by failing to acknowledge that the builder had advised in correspondence that it would not accept the signed variation at the reduced price of $1053.[34] The Tribunal did not discuss the builder’s evidence about this point in concluding that the homeowners had agreed to the variation.
- [38]We observe that the Tribunal also had before it a copy of an email dated 3 December 2014 (after the work had been completed to the extent that the Tribunal ordered the homeowners to pay it), from Ms Holliday purporting to unilaterally rescind the accepted quotes on the homeowners behalf,[35] after the work had been done. Although the homeowner does not raise it, we note for completeness that it was too late to rescind the acceptance. The purported rescission could have no effect in respect of works already done.
- [39]Mr Galea’s evidence is that the correspondence sent by the builder raised against it by the homeowners here, was not sent until he after had completed the formwork. The works did not in fact progress further than that. However, all of the work was done except the pouring of the concrete slabs.[36] The builder’s correspondence raised against it sets out concerns about works that had not been paid for by the homeowners. It is apparent on the face of the correspondence that the builder was not prepared to complete the works until the variation for the full amount for the bin slab was signed. On any fair reading, the builder’s correspondence did not, as the homeowner contends, relinquish its claims for work already authorised by the homeowners and completed by the builder. Although the Tribunal’s reasons for decision are not detailed, it is sufficiently clear that the Tribunal proceeded to make its findings having regard to this background.[37]
- [40]The Tribunal did not err in finding that homeowners signed documents accepting the variations for $3464 and $1053, which it relied upon in awarding the sums of $2808 and $1053 to the builder.
- [41]In case we are wrong, we observe that if the Tribunal did err, and we reheard the proceeding, we would rely upon the evidence set out above. Accordingly, we would reach the same conclusion in any event.
- [42]Accordingly, we would not grant leave to appeal on this ground of appeal.
- Relating to the final inspection certificate, as referred to in paragraph [51] of the Tribunal’s reasons for decision
- [43]Paragraph [51] of the reasons for decision is as follows:[38]
The owners say they should not have to pay any amount. They have provided a quote for rectification of plumbing work in the amount of $12,787.50 and they say they engaged appropriate trades and arranged for a Final Inspection Certificate. They did not provide invoices or details of the cost of that work.
- [44]The Tribunal later observed that it appeared the orders sought for a final certificate were no longer necessary.[39]
- [45]The homeowners say that the Tribunal was in error because they do not have a final certificate. However, the Tribunal did not find that the homeowners had a Final Inspection Certificate, rather that the homeowners engaged tradespersons and made arrangements themselves to obtain a Final Inspection Certificate. There is no error by the Tribunal revealed on the basis alleged.
- [46]It is apparent that the Tribunal considered it was dealing with this aspect of the response and counter-claim. That said, the Tribunal did not dispose of the application by the homeowners for a final certificate (in their response to the builder’s claim). Although the Tribunal’s reasons for decision suggest that it would have dismissed the application for these orders, it did not do so. It merely said that it appeared it was no longer required.
- [47]Parties are entitled to have their applications dealt with. Failure by the Tribunal to do so, is an error of law and fact as to the scope of the application and its responsibilities in determining with the issues before it. We are satisfied that there is prejudice to the homeowner, amounting in a substantial injustice, if the homeowner is unable to obtain a final inspection certificate for the builder’s works despite being ordered to pay for them in full in accordance with the Tribunal’s orders. Accordingly, we allow the appeal in respect of this error.
- [48]Both parties have provided fresh evidence in making their submissions about the final certificate. We give leave for this evidence to be relied upon in relation to this issue.
- [49]The builder says that it is willing to instruct the certifier, engaged by it for the works, to obtain a final inspection certificate upon payment of the balance of the Tribunal’s award of $18,448.83. It says that $9500 remains outstanding to it. It points out that some fees must be paid to the certifier because the permit for the building works has exceeded 2 years duration, although it suggests that it believes the amount to be paid is small (that is, $200-300).
- [50]The homeowners submit that the full amount of the award has been available for payment to the builder since January 2016. It appears on the basis of their new evidence that it has not been released pending the builder’s compliance with the homeowners’ demand that the builder pay any outstanding fees to the certifier.
- [51]The definition of ‘practical completion’ in the contract contemplates that all statutory requirements have been completed. Further, the builder is responsible for obtaining the final inspection certificate unless the certifier was engaged directly by the homeowners. Therefore, in the ordinary course of the contract, the certifier’s fees would be paid by the builder from the payments received from the homeowners.
- [52]We consider it is proper to order that, upon release to the builder of all monies owing to it by the homeowner pursuant to the Tribunal’s orders of 18 June 2015, the builder must instruct the certifier to arrange a final inspection. When a final certificate is issued by the certifier, the builder must provide it to the homeowners.
- Alleged error of fact in dismissing the counter-claim with respect to the pool, despite evidence that it required partial or complete demolition
- [53]As explained earlier, the counter-claim was dismissed without a hearing on the merits. The Tribunal’s reasons for decision anticipated that if the QBCC-related application did not resolve the issues underlying the counter-claim regarding the pool, that an application for reopening might be made by the homeowner. Instead, this application for leave to appeal was filed.
- [54]The QBCC application was ultimately withdrawn. Although this is ultimately irrelevant to our conclusion, we observe that the homeowners sought to provide, in these appeal proceedings, an expert report dated August 2016, outlining ongoing issues concerning the pool.
- [55]Under s 143A of the QCAT Act, following the filing of an appeal, the Tribunal may refer the matter to the Tribunal to consider whether the proceeding should be reopened, in this instance, on the basis of new evidence regarding defects in the pool despite the result of the QBCC direction to rectify process.
- [56]Although referring the application to the Tribunal for a reopening may otherwise have been appropriate, it is clear that the homeowners were denied procedural fairness by the Tribunal in dismissing the cross-application about the pool on the basis it did.
- [57]
- [58]The homeowners were given notice of the hearing but failed to attend at the scheduled time on the hearing day. The Tribunal was entitled to decide to proceed and to finalise the proceeding in their absence.[41] However, it did not do so. It reserved its decision. Following the homeowners’ late attendance on the hearing date, it subsequently listed the proceeding for a directions hearing to determine how to proceed.
- [59]It told the parties that it would determine the builder’s claim on the papers, but that the pool related application was not before it. The homeowners wanted the issues about the pool dealt with. The Tribunal erroneously believed at that point that it did not have that issue before it. It was correct that the QBCC review was not before it, but the contractual claim was the subject of the homeowners’ cross-application. In its reasons for decision, the Tribunal acknowledges it. The reasons for decision do not reveal the basis for determining the proceeding other than on its merits, except, perhaps, either in recording the Tribunal Member’s erroneous belief (the transcript of the directions hearing indicates otherwise) that the homeowners had agreed to finalisation of the claim without a hearing of it on the merits[42], or alternatively, that a hearing in the absence of a party under s 93 of the QCAT Act was a hearing other than on the merits.[43] (That said, it is apparent from the transcript of the directions hearing, that although the hearing on the extensions claim had proceeded on the hearing date in the absence of the homeowners, the counter-claim about the pool was not in fact heard on that day. In any event, a directions hearing was then held to discuss how to proceed. Effectively, there was no occasion on which a hearing on the pool counter-claim was heard in the absence of the homeowners).
- [60]There is no basis for determining the counterclaim other than on its merits under the enabling Act which confers jurisdiction on the Tribunal for building disputes.[44] The only possible basis for summarily dismissing a claim under the QCAT Act arises from sections 47 and 48. Section 47, concerning the strike out of unjustifiable proceedings, does not apply.
- [61]Section 48 provides for striking out if a party is causing unnecessary disadvantage to another party. Although the homeowners should have been at the hearing at the scheduled time, the Member did not purport to dismiss the cross-application under s 48. Section 93 provides for the Tribunal to proceed to hear and decide a matter in the absence of a party who has received notice of the hearing but failed to attend. But that is not a provision enabling a hearing which is not on the merits. In any event, the Tribunal did not conduct a hearing on the counter-claim about the pool.
- [62]We make the observation that even if, as the Tribunal erroneously recorded, the homeowners had agreed to a dismissal without a hearing on the merits so that the QBCC review could proceed, the homeowners should have been given the opportunity to adjourn or withdraw the cross-application in order to allow the QBCC review to be finalised. Then, if that review did not dispose of their issues, the homeowners could have simply sought the Tribunal’s leave to continue with the hearing or to re-apply. Instead, the Tribunal dismissed that counter-claim without a hearing on the merits, without the agreement of the homeowners, and without a means of bringing that issue back before the tribunal for a decision.
- [63]Dismissing the cross-application about the pool without a hearing on the merits was a breach of procedural fairness by the Tribunal. This is an error of law.
- [64]No relevant findings of fact were made by the Tribunal about the substantive issues because the cross-application was not heard on the merits. Accordingly, we must remit the cross-application to the Tribunal for reconsideration.[45] In the circumstances, we make directions for the filing of further evidence to be relied upon by the parties in the Tribunal file BDL093-14.
Orders
- [65]Ordinarily the claim and counter-claim would have been heard together and any amount awarded on the counter-claim off-set against the award against the claim. However, given that the claims for the extension and the pool arise out of separate contracts, at this juncture, we consider the best course is for the Tribunal’s orders of 16 June 2015 to be given effect, as despite the errors made in the Tribunal’s reasoning, the decision about the extensions is correct. The cross-application about the pool can proceed independently, following a hearing on the merits by a tribunal differently constituted. The parties should have the opportunity to file further evidence.
- [66]We make orders accordingly.
Footnotes
[1]Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217 at [6].
[2] Ibid at [7].
[3] Ibid at [8]-[10].
[4] Ibid at [11]-[12].
[5] Ibid at [12]-[13].
[6] Ibid at [13]-[14] and Transcript of Directions hearing on 21 May 2015.
[7] Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217 at [13], [15], [18] and Transcript of Directions hearing on 21 May 2015 page 1-3, lines 5 – 9, 26 – 30, 34 – 35.
[8] Transcript of Directions hearing on 21 May 2015 page 1-3, lines 5 – 9, 26 – 30, 34 – 35 and page 1-5, lines 36 – 40.
[9] Ibid page 1-5, lines 20 – 24 and 36 – 40.
[10] GAR167-14.
[11]Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217 at [13]-[18].
[12] Ibid at [56].
[13] Ibid at [54].
[14] QCAT Act s 142, esp 142(3).
[15] Pickering v McArthur [2005] QCA 294 at [3].
[16] QCAT Act s 147.
[17] Ibid s 147(2).
[18] Ericson v Queensland Building and Construction Commission [2014] QCA 297, Albrecht v Ainsworth & Ors [2015] QCA 220.
[19] Statement of Mr Frank Galea executed on 20 August 2014, Part D, Annexures to Statement of Frank Galea, Document H, page 61 (emphasis added).
[20] Ibid page 52 (emphasis added).
[21] Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217 at [38].
[22] Statement of Mr Frank Galea executed on 20 August 2014, Part D, Annexures to Statement of Frank Galea, Document H, page 56.
[23] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1, s 62.
[24] Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217 at [9], [29]-[30].
[25] DBC Act Part 7.
[26] That is, under s 84(4) of the DBC Act, that the builder would suffer unreasonable hardship and that it would not be unfair to the building owner for the builder to recover the amount.
[27] Statement of Frank Galea filed 20 August 2014, Attachment J.
[28] Statement of Frank Galea filed 20 August 2014, Attachment H at page 49.
[29] Statement of Frank Galea filed 2 December 2014, paragraphs 20-23, and Attachment F10.
[30] Response and counter-claim of homeowners, Part E, Section 2, Witness Statement of homeowners filed (but unsigned) on 24 July 2014 at para [15] – [16].
[31] Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217 at [43]-[44].
[32] Statement of Frank Galea filed 20 August 2014, Attachment O at page 104.
[33] Statement of Frank Galea filed 20 August 2014, Attachment Q at page 112.
[34] Statement of Frank Galea filed 20 August 2014, Attachment W, page 123.
[35] Statement of Homeowners filed 24 July 2014, page 620.
[36] Statement of Frank Galea filed 20 August 2014, paragraphs 49-63.
[37] Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217, especially at [23]-[24].
[38] Ibid at [51].
[39] Ibid at [54].
[40] QCAT Act s 28.
[41] Ibid s 93.
[42]Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217, especially at [13], [56].
[43]Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217 at [17].
[44] QBCC Act s 77.
[45] QCAT Act s 146.