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Worthington v Ryan QCATA 192
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Worthington v Ryan  QCATA 192
STEVEN BRIAN WORTHINGTON T/AS WORTHINGTON SIMMONS BUILDERS
ANDREW WILLIAM RYAN
ORIGINATING APPLICATION NO:
20 December 2018
On the papers
Senior Member Brown
Leave to amend the application for leave to appeal or appeal refused.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT - where application out of time to amend application for leave to appeal or appeal – where delay not insignificant and unexplained – no significant detriment to the opponent – where proposed new ground of appeal futile and without prospects of success
Domestic Building Contracts Act 2000 (Qld) (repealed) Part 7
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61(1)
Crime and Misconduct Commission v Chapman & Anor  QCAT 229
Poiner v Quirk & Anor  QDC 299
Thompson Residential Pty Ltd v Tran  QDC 156
D P Gardiner of counsel instructed by McCarthy Durie Lawyers
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
- There has been long and significant litigation between these parties.
- There have been two decisions given in a building dispute between them commenced in matter BDL274–11. After the first hearing there was an appeal by Dr Ryan to the Appeal Tribunal and then by him to the Court of Appeal. The matter was returned to the original Tribunal for redetermination. After the second redetermination (second decision) Mr Worthington commenced the present appeal to the Appeal Tribunal.
- The second decision was handed down on 17 January 2017.
- Mr Worthington filed his application for leave to appeal or appeal on 14 February 2017.
- On 16 February 2017 certain orders were made as to the conduct of the appeal including an order that Mr Worthington prepare an appeal book and make submissions addressing amongst other things the Tribunal’s error sought to be appealed. Mr Worthington complied with that direction as required by 10 March 2017.
- Dr Ryan was directed to add any additional necessary documents to an appeal book and amongst other things to make submissions in response by 31 March 2017.
- However on 15 February 2017 Dr Ryan filed an application to reopen the building dispute BDL274–11.
- On 28 March 2017 an order was made adjourning Mr Worthington’s appeal pending determination of Dr Ryan’s reopening application. In result Dr Ryan did not file any material as required by the order made 16 February 2017.
- On 27 June 2018 Dr Ryan’s reopening application was determined and refused.
- Dr Ryan then proceeded to file his own appeal against the second decision on 16 July 2018.
- On 17 October 2018 Mr Worthington filed an application seeking leave to amend his application for leave to appeal or appeal to add a third ground of appeal. The third ground of appeal was that the Tribunal erred in “not allowing an amount of $19,839.65 for works undertaken due to the fact that the respondent failed to sign written variation requests.”
- Both parties agree that in order to be successful Mr Worthington requires leave of the Appeal Tribunal under section 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to extend the time to add another ground of appeal. In his submissions Dr Ryan’s solicitors referred to the time for leave to appeal or appeal expiring on 15 March 2017 but that seems to be a typographical error and the time to appeal actually expired on 14 February 2017.
- Dr Ryan opposes the addition of a third ground of appeal. He says it is for the appellant to establish circumstances showing that the interests of justice requires a departure from the usual requirement to comply with time limits. He says he will be prejudiced by the amendment because there is a prospect of an additional judgement against him if the amendment is allowed and if Mr Worthington succeeds on the third ground of appeal. Finally he says there is no explanation offered for the delay in waiting until 17 October 2018 to make the application to add the third ground of appeal.
- Mr Worthington says his legal representatives did not identify the additional ground of appeal until after a review of the transcripts was undertaken and further advice sought from counsel. That was after Dr Ryan had filed the application to reopen. Then the appeal was adjourned because of the reopening application and no action could be taken until the application to reopen was decided. In result the matter was adjourned for more than 18 months.
- Mr Worthington submits the direction made on 28 March 2017 adjourning the appeal was effectively a stay of any further steps in the appeal proceedings.
- Mr Worthington says he was not notified by QCAT Registry about the reopening application being dismissed until 30 July 2018.
- Mr Worthington submits the respondent will suffer no detriment if Mr Worthington is granted leave to amend his application to add the third ground of appeal; Dr Ryan has not filed any material in relation to the existing grounds of appeal; reliance is not placed on any matter of new evidence arising post hearing; Dr Ryan has not been prejudiced by the time that has passed since the application for leave to appeal or appeal was filed.
- If one accepts that the adjournment of the appeal pending determination of the reopening application effectively stayed the appeal proceedings, there was delay in issue from 14 February 2017 through to 28 March 2017 and then from 31 July 2018 to 19 October 2018.
- If one does not accept that the adjournment of the appeal effectively stayed the appeal proceedings then the delay is from 14 February 2017 through to 19 October 2018, a delay of more than one and a half years.
- Despite the delay there is no indication that Dr Ryan will suffer any detriment because of it. He submits he will be prejudiced because if the amendment is allowed and Mr Worthington succeeds on it, he will have to pay more. That is no true prejudice as a result of delay, but simply an outcome of the correct decision being made. There is no suggestion that Dr Ryan’s financial situation will suffer because he has relied on the decision which found that he was not required to pay $19,839.65 for unsigned written variations.
- What is the explanation for delay? Mr Worthington’s legal advisors say they did not identify the additional ground of appeal until a review of the transcripts was undertaken. They also say “further advice was sought by counsel for the applicant.” Perhaps what was intended was the solicitors sought advice from counsel. One assumes the latter. In any case it is said that the further advice was sought after the application to reopen was filed by Dr Ryan. That may well have been as long ago as shortly after the reopening application was filed on 15 February 2017 or sometime before 30 July 2018 when Mr Worthington’s solicitors were advised of the decision and the reopening application.
- At the very best for Mr Worthington, that means he delayed after 30 July 2018 from taking steps to make the application to amend the application for leave to appeal or appeal until 17 October 2018. There is no explanation for that delay.
- What are Mr Worthington’s prospects of success with respect to the third ground of appeal? The third ground of appeal says that the learned Member should have given him credit for unapproved variations totalling $19,839.85. The learned Member found that whilst the work involved in the subject variations was done they were not approved by the owner and Mr Worthington had not made an application pursuant to the Domestic Building Contracts Act 2000 (Qld) (DBCA) provisions applying at that time nor had there been a claim on a quantum meruit for the work done.
- The new ground of appeal seems to focus on the reason why the variations were not signed by the owner. But that ignores the requirement for signature mandated by Part 7 of the DBCA.
- McGill DCJ concluded in Thompson Residential Pty Ltd v Tran that if a variation failed to comply with the legislative requirements of Part 7 of the DBCA then unless the builder utilised the recovery procedure provided for in s 84(4) of the DBCA, there was no contractual or restitutionary remedy available to a builder to recover for the variations regardless that the owner thereby obtains a benefit from the variation work without paying for it.
- His Honour also noted:
In Allaro Homes Cairns Pty Ltd v O'Reilly  QCA 286 the Court of Appeal refused to interfere in the refusal of QCAT to allow the statutory restitutionary remedy under s 84(4). Significantly however it appears that Holmes JA at  rejected the idea that the applicant could have a restitutionary remedy outside s 84(4), a remedy which, had it existed, the applicant ought to have been able to pursue before the Tribunal. If there was a general law restitutionary remedy available as well as that provided by s 84(4), it is very surprising that the Court did not say so.
- Given there can be no restitutionary claim available to Mr Worthington in respect of the variations, and as the learned Member found, which finding is not challenged, that Mr Worthington had not sought any remedy under s 84(4) of the DBCA, this ground of appeal appears futile and doomed to fail.
- In Poiner v Quirk & Anor, on an appeal from a predecessor tribunal to QCAT also determined by McGill DCJ and also about unsigned variations to a building contract. His Honour had found that there had been a failure to give the builder procedural fairness amounting to an error of law on the part of the Tribunal. He said:
… Ordinarily, where there has been a breach of the rules of natural justice the appropriate remedy is a new trial or hearing, but that is subject to the important qualification that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made at the first trial: Stead v State Government Insurance Commission  HCA 54; (1986) 161 CLR 141 at 145. As was pointed out there, the practical question is whether further information could possibly have made any difference. In my opinion it plainly could not, because the appellant’s case on this point was bad in law and doomed to fail.
The appellant’s claim was on the basis of an unsigned variation to the contract, for particleboard flooring to both levels of the house beneath the tongue and groove flooring…
… The Tribunal found that there were no exceptional circumstances surrounding the claim, and it does not appear from the written submissions on behalf of the appellant that any exceptional circumstances were even alleged: p 13. Indeed those submissions do not address the requirements of s 84 at all; they proceed on the basis that it is sufficient that the work was carried out on instructions from and with the knowledge of the respondents, which is not enough to satisfy s 84. There is nothing to indicate that there would be any unreasonable hardship to the building contractor in enforcing the requirements of ss 79, 80, 82, and 83 in the present case.
On the face of it, if this work was required by the respondents, the appellant simply did not comply with the requirements of the statute. He ought to have required them to sign a variation before he did the work…
In these circumstances there is no point in sending this issue back to the Tribunal for determination by another tribunal member. The evidence of Mr Eccles was really in my opinion irrelevant or perhaps superfluous to the issue that the Tribunal had to decide, which was whether the appellant had satisfied the requirements of s 84. In my opinion he had not, and in those circumstances this claim was bound to fail. The fact that there was a technical breach of the rules of natural justice was therefore of no consequence.
- The only difference about the matter at hand and Poiner is the following submission. That the learned Member failed to determine the claim about unapproved variations properly because she did not determine the issue in accordance with sections 3 and 28 of the QCAT Act. But the aspirational objects provisions of s 3 and the broad procedural powers granted by s 28 cannot stand against or frustrate the clear statutory prohibition and aim set by Part 7 of the DBCA not to reward in any way other than as provided by s 84(4) unapproved variations in building matters. That is clear and trite law.
- Taking all the aforementioned matters into consideration we are unable to conclude that it is in the interests of justice to grant the extension of time to make the amendment proposed. The application is refused. The delay in seeking amendment is not insignificant and there has not been any satisfactory explanation to explain the delay, but the futility of the proposed new ground of appeal overshadows all the other factors and persuades us the discretion to extend time should not be exercised in favour of Mr Worthington in this matter.
- Published Case Name:
Steven Brian Worthington t/as Worthington Simmons Builders v Andrew William Ryan
- Shortened Case Name:
Worthington v Ryan
 QCATA 192
Senior Member Brown, Member Howe
20 Dec 2018