Gummerson v McDonald & Son Builders Pty Ltd
[2018] QCATA 126
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- Unreported Judgment
- Gummerson v McDonald & Son Builders Pty Ltd[2018] QCATA 126
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Gummerson v McDonald & Son Builders Pty Ltd[2018] QCATA 126
Gummerson v McDonald & Son Builders Pty Ltd[2018] QCATA 126
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gummerson v McDonald & Son Builders Pty Ltd [2018] QCATA 126 |
PARTIES: | KAREN MICHELLE GUMMERSON (appellant) |
| v |
| McDONALD & SON BUILDERS PTY LTD (respondent) |
APPLICATION NO/S: | APL370-17 |
ORIGINATING APPLICATION NO/S: | MCDO75/17 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 4 September 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
ORDERS: | Leave to appeal refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – functions of appellate tribunal – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal Queensland Building Services Authority Act 1991 (Qld), s 77 Queensland Building Services Authority Regulation 2003 (Qld), s 34B Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Self-represented |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- [1]On 2 November 2017, the Tribunal ordered Karen Gummerson to pay McDonald & Son Builders Pty $10,404.94 for unpaid building work and interest, plus costs of $414.70.
- [2]Ms Gummerson has applied for leave to appeal that decision.
- [3]In determining whether to grant leave, the Tribunal will consider established principles including:
- [4]Ms Gummerson submitted that the Tribunal failed to take into account her loss of income from having to arrange repairs. This is not a ground of appeal, nor was evidence adduced to support it.
- [5]Ms Gummerson’s application for leave to appeal focused on the Tribunal’s findings of fact. She submitted that the ceiling install over the stairs did not meet the Australian Standard, that she had a conversation with the builder where he agreed to be responsible for painting and that the work was of a very poor standard. Ms Gummerson also disagreed with the Tribunal’s findings about the cost of the defects, despite producing no independent estimates of the costs at either the hearing or as part of her appeal.
- [6]
- [7]Ms Gummerson filed two undated black and white photographs that she claimed showed that the stairs do not meet relevant building standards. This is fresh evidence. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:[8] Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- [8]Ms Gummerson did not explain why she did not provide the photographs earlier. Ms Gummerson did not produce the relevant Australian Standard as evidence at the original hearing,[9] nor did she file it as part of her appeal. The photographs would not have any impact on the result of the case without the relevant standard in evidence. The photographs would also carry little weight given their modest quality and lack of dating. The photographs are not admitted into evidence and the appeal must proceed on the evidence before the original Tribunal.
- [9]The Tribunal made its findings having considered both oral and documentary evidence from both parties, including the original Contract, photographs and correspondence. Having heard from both parties, the Tribunal was in the best position to assess credibility and weigh the evidence accordingly.
- [10]Ms Gummerson also submitted that she should not have been ordered to pay interest because the builder did not negotiate, did not contact her, did not send her invoices for three years and did not make it clear that interest was being charged.
- [11]The Tribunal may award interest at a rate specified under the contract.[10] If the parties enter a contract and a rate is specified under the contract, then that is the interest payable.[11] Although the Contract specified a rate of 18 percent,[12] the Tribunal in its discretion discounted it by 10 percent.
- [12]Interest is payable on and from the day after the day the amount became payable until the amount is paid. The invoice was signed and dated on 17 October 2013 and notes that it is payable by 19 December 2013. The builder was not required to negotiate or send further invoices. The invoice was never paid and was reduced by only $700 at the hearing, almost four years later. The amount of interest awarded by the Tribunal was therefore consistent with the evidence.
- [13]Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal’s findings about the extent of the defective work and the interest payable were open on the evidence.
- [14]The Tribunal’s decision was therefore appropriate and I can find no reason to come to a different view.
Should the Appeal Tribunal grant leave to appeal?
- [15]Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[13] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[14] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.[15]
- [16]Having read the transcript and considered the evidence, I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting their decision, or were influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.
- [17]There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted.
- [18]Leave to appeal is refused.
Footnotes
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232, [2].
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[5] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].
[6] Ibid.
[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4.
[8] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
[9] Transcript, page 1-20, lines 1-3.
[10] Queensland Building Services Authority Act 1991 (Qld), s 77(2)(c); Queensland Building Services Authority Regulation 2003 (Qld), s 34B(1)(a).
[11] Contrast Constructions Pty Ltd v Bartlett [2014] QCATA 262, [74].
[12] Contract dated 9 September 2013, Item 9.
[13] Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).
[14] Ibid.
[15] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.