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Pivovarova v Michelsen[2019] QCATA 54

Pivovarova v Michelsen[2019] QCATA 54

QUEENSLAND CIVIL AND  ADMINISTRATIVE TRIBUNAL

CITATION:

Pivovarova v Peter B Michelsen t/as Peter Michelsen Building Service ABN 84003506297 [2019] QCATA 54

PARTIES:

TATIANA PIVOVAROVA

(applicant/appellant)

 

v

 

PETER B MICHELSEN t/as PETER MICHELSEN

BUILDING SERVICE ABN 84003506297

(respondent)

APPLICATION NO/S:

APL223 -17 

ORIGINATING

APPLICATION NO/S:

BDL245-12

MATTER TYPE:

Appeals

DELIVERED ON:

10 May 2019

HEARING DATE:

26 November 2018

HEARD AT:

Brisbane 

DECISION OF:

Justice Daubney, President 

Member King-Scott

ORDERS:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – where the applicant appealed a decision of the Tribunal – where the decision on the appeal was favourable to the applicant and the matter was remitted to be determined according to law – where the Tribunal reheard the matter and found against the applicant – where the applicant appealed against the reheard decision – where the applicant raises questions of mixed law and fact in her grounds of appeal – where leave is required for an appeal on a question of mixed law and fact under s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 – whether leave should be granted for questions of mixed law and fact – whether the appeal should be allowed 

Queensland Civil and Administrative Tribunal Act 2009, s 3, s 4,  s 28,  s 32  s 135, s 142

Michelsen v Pivovarova [2017] QCAT 235

Pivovarova v Michelsen [2015] QCATA 73

Radcliff and anor v Walker [2011] QCAT 435

Thompson Residential Pty Ltd v Hart and Anor [2014] QDC 132

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented 

Respondent:

Self-represented 

REASONS FOR DECISION

  1. [1]
    Tatiana Pivovarova (the Applicant) appeals the decision of the Tribunal made on 10 July 2017. She does not seek leave to appeal, however, some of her grounds of appeal raise questions of mixed fact and law and fact for which leave is required under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
  2. [2]
    This matter has a long and chequered history involving multiple applications. A brief history of the matter is set out below.
  3. [3]
    The Applicant, the home owner, contracted with a licensed builder, Peter Michelsen (the Respondent) to build a new home at Brookwater. She was not happy with the outcome and refused to pay the balance owing under the contract. The Respondent brought proceedings in the Tribunal against the Applicant claiming $49,500 and interest on the amount at a contractually agreed rate of 15 per cent per annum. He was substantially successful. The Applicant was ordered to pay the Respondent the sum of $47,800 plus interest plus costs. She appealed that decision.
  4. [4]
    A decision on the appeal was delivered on 10 June 2015 and a number of the Applicant’s grounds of appeal were upheld.[1] The Appeal Tribunal set aside the decision and remitted the matter to the Tribunal to be determined according to law.

The First Appeal

  1. [5]
    It is apposite to repeat the principles applied in an appeal of this kind. Member Deane who comprised the first Appeal Tribunal with then President Justice David Thomas, in considering the appeal said:[2] 

Where grounds of appeal raise questions of mixed law and fact, leave to appeal is necessary.[3]  Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[4]  Where leave is granted the appeal is to be decided by way of rehearing.[5]

Section 146 of the Queensland Civil Administration Tribunal Act 2009 (Qld) (QCAT Act) sets out the appeal Tribunal's powers on appeal where the appeal is on a question of law. It does not provide for rehearing as compared to section 147 which relates to appeals on questions of fact or mixed law and fact.[6]  If a question of law resolves the matter as a whole then the Appeal Tribunal may substitute its decision, otherwise it is to remit the matter for further consideration.

  1. [6]
    The same principles apply to the current appeal.
  2. [7]
    The relevant findings of the Appeal Tribunal were as follows:
    1. (a)
      The Member’s decision that Practical Completion was deemed to have been reached because the Applicant had taken possession should be set aside as the Member’s reasons were inadequate and failed to disclose why the written consent given by the Respondent prior to the Applicant taking possession did not satisfy clauses 17.8 and 17.9 of the contract, so that Practical Completion was not deemed to have been reached (Ground 2).[7] The Appeal Tribunal did not uphold the Applicant’s submission that the Member was not entitled to make findings in respect of the consequences of the Applicant taking possession because it was not pleaded.[8] 
    2. (b)
      The Member’s finding that the defects, incomplete work and deviations from the contract, plans and specification were all minor in nature was open on the evidence and would not be disturbed.[9]
    3. (c)
      The Member’s finding that Practical Completion was actually reached and that the premises were habitable despite the fact that the defects, incomplete work and deviations from the contract, plans and specification were all minor in nature should be set aside and remitted to the Member for fresh determination.[10]
    4. (d)
      The Member’s reasons did not clearly indicate whether she considered substantial performance in making her findings. The parties were not afforded an opportunity to make submissions on the applicability of the doctrine. This was an error of law and the decision that Practical Completion was reached was set aside. The matter was returned to the Member for a fresh determination (Ground 5).[11]
    5. (e)
      As the finding of Practical Completion was set aside, the finding that the Practical Completion Stage Notice, as a matter of law, was not valid (Ground 8).[12]
    6. (f)
      The Member’s reasons did not clearly indicate whether she took into account Prime Cost adjustments and other variations set out in the Respondent’s reconciliation document in finding the amount owing. The Appeal Tribunal determined that the contract price ought to be reduced by $6,830.00 for Prime Cost Items supplied by her.[13]
    7. (g)
      The Member’s reasons did not address the issue of adjustments to the contract price and failed to provide sufficient and adequate reasons. This was an error of law. This finding was set aside and returned to the Member for fresh determination (Ground 6).[14]
  1. (h)
    The Member found that interest was payable from the date of final inspection which she erroneously found to be 15 June 2012 when in fact it was common ground that it should have been 12 July 2012. The decision required correction in this regard.[15]
  2. (i)
    The Appeal Tribunal held it was open for the Member to find that the reasonable costs of rectifying and completing minor defective and incomplete work were $1,680.[16] The Member reduced the amount owing to Mr Michelsen by $1,680 for the reasonable costs of rectifying and completing minor defective and incomplete work which was consistent with a finding of substantial performance but as the Member did not refer to the doctrine it was set aside and returned to the Member for fresh determination (Ground 7).[17]
  3. (j)
    The Member did not make any finding as to whether the contract was an entire contract, nor whether the findings that any defects, incomplete work or deviations were minor gave rise to an entitlement to be paid the final payment less a deduction as a consequence of substantial performance. The reasons were inadequate and the decision was set aside and returned to the Member for fresh determination (Ground 11).[18]
  4. (k)
    The Appeal Tribunal found no demonstrated error in the Member’s refusal to find that liquidated damages ought to have been paid by the Respondent at a rate of $40 per day from 4 June 2012.[19] There was no clear evidence for the Member to make such a finding.[20]

The Tribunal’s reconsideration and decision 

  1. [8]
    The same Member of the Tribunal heard and determined the matter on the papers pursuant to s 32 of the QCAT Act.
  2. [9]
    The Applicant disputed that Practical Completion had been achieved and maintained that the Respondent’s entitlement to payment had not arisen.
  3. [10]
    The Member found that the Applicant took possession of the property with the consent of the Respondent after an exchange of emails between them, where the Respondent advised that he would return, in the next few days, to complete outstanding work. 
  4. [11]
    Thereafter, according to the Member’s findings, the Respondent served a Practical Completion Stage Notice stating that the works had reached Practical Completion on 15 June 2012 and provided for a final inspection on 12 July 2012.[21] The Applicant was also served with a Form 21 Final Inspection Certificate issued by the certifier.[22]

The parties attended the final inspection at which the Applicant denied that Practical Completion stage had been reached. She refused to accept, complete or sign a defects document provided to her.[23]

  1. [12]
    The Member found that the concerns raised by the Applicant were so trifling that they did not have any bearing on whether Practical Completion had been reached.[24] In the alternative, she found that the contract had been substantially performed.[25] The Member then referred to the various minor deviations from the plans and specifications.[26] She noted that her earlier finding that they were minor was not disturbed by the Appeal Tribunal.[27]
  2. [13]
    The Member made the adjustment to the contract for the amount that the Applicant had paid for Prime Cost Items supplied by her and deducted the sum of $1,680, accepted by the Appeal Tribunal as reasonable for the cost of rectifying and completing minor defective and incomplete work.[28]
  3. [14]
    The Member ordered the Applicant to pay the sum of $40,990 together with interest from 12 July 2012 at a rate of 15 percent to Mr Michelsen no later than 1 August 2017.

This Appeal

  1. [15]
    The Applicant has appealed the Member’s further decision.
  2. [16]
    An application to stay the decision was refused by this Appeal Tribunal on 8 January 2018.[29]
  3. [17]
    A further application by the Applicant that the matter be transferred to the Court of Appeal was dismissed on 13 July 2018.

Grounds of appeal

  1. [18]
    The Applicant’s grounds of appeal and submissions are combined in the Application for leave to appeal and appeal. The grounds of appeal and submissions were expanded in the Applicant’s written submissions dated 26 July 2017. It is not easy to identify, with precision, what are the grounds of appeal. The documents are disjointed, confusing and, in some instances, pejorative and disparaging of the Member. In addition, the Applicant seeks to re-litigate matters already determined against her by the first Appeal Tribunal decision. The following appear to be the substance of each ground of appeal. Instead of the Applicant’s nomenclature referring to each ground as an Error in Law as contained in her written submissions and adopted in the Respondent’s submissions, we have adopted the more conventional description.

Ground 1

  1. [19]
    The Applicant submits that the Member erred in her decision in favour of the Respondent on the basis of the doctrine of substantial performance without affording the parties an opportunity of making submissions about the applicability of the doctrine. It is submitted that the Member was selective in complying with the Appeal Tribunal finding and applying the doctrine of substantial performance but not giving the parties an opportunity of responding.

Ground 2

  1. [20]
    The Member breached s 3(b) of the QCAT Act in failing to deal with the matter in a fair and just manner. The Member falsified, distorted and misrepresented the Respondent’s claim disclosed in the Form 26 and conducted the procedure on a claim that the Member made up behind closed doors without giving the Applicant an opportunity of responding. The Member was guilty of unethical, unfair, unjust and biased conduct.

Ground 3

  1. [21]
    The Member erred in finding that the Respondent was entitled to be paid due to the substantial performance claim when the claim does not exist because the Respondent failed to allege such a claim, or disclose and prove any of his entitlements due to the substantial performance including interest of 15 per cent in his Form 26 Application.
  2. [22]
    In breach of s 28(3)(a) of the QCAT Act, the Member failed to accord the Applicant natural justice by making a decision in the Respondent’s favour on the basis of the doctrine of substantial performance when the Respondent did not lodge or prove any entitlement to such a claim and without giving the Applicant an opportunity to rebut such a claim. 

Ground 4

  1. [23]
    In breach of s 3(b) and s 28(3)(a) of the QCAT Act the Member, respectively, failed to deal with the matter in a fair and just manner and failed to accord the Applicant natural justice in finding that the Queensland Building Services Authority (QBSA) alleged minor defects did not prevent Practical Completion when no affidavit, report or statement from the QBSA in relation to Practical Completion stage was provided to the Applicant prior to the hearing and the Applicant did not have a fair opportunity to prepare her defence in the matter.
  2. [24]
    The Member further erred by finding that the QBSA alleged minor defects did not prevent Practical Completion when the Applicant was not allowed to cross examine the QBSA inspector.

Ground 5

  1. [25]
    In breach of s 3(b) and s 28(3)(a) of the QCAT Act the Member, respectively, failed to deal with the matter in a fair and just manner and failed to accord the Applicant natural justice in that the Applicant was placed at a disadvantage and unfair conduct was committed against her by the Tribunal and the Respondent when the Member made a decision about payment to the Respondent and the Applicant was not aware about any substantial performance claim and did not expect to have to defend herself in relation to a substantial performance claim at the original hearing.

Ground 6

  1. [26]
    The Member failed to provide reasons in accordance with the law for the payment of interest at the rate of 15 per cent.

Ground 7

  1. [27]
    The Member failed to provide sufficient and adequate reasons in relation to the Prime Cost Items and in failing to calculate the Prime Cost Items which the Respondent was entitled to in accordance with s 9.7 of the contract. 

Ground 8

  1. [28]
    The Member erred and was in breach of s 4(d) of the QCAT Act by treating unlike cases alike. The Member made her decision about substantial performance based on the case of Thompson Residential Pty Ltd v Hart and Anor,[30] which was not relevant to the matter as in that case the contract was terminated and in the instant case the contract is still on foot. The Member disregarded s 67 of the Domestic Building Contracts Act 2000 (Qld) (DBC Act).

Ground 9

  1. [29]
    The Member erred in failing to provide sufficient and adequate reasons for whether the Practical Completion stage had been reached and that, having acknowledged that if the Member was wrong that Practical Completion had not been reached, failed to find the Respondent was not entitled to payment pursuant to his Form 26 claim and the Respondent was in breach of section 67(2) of the DBC Act.

Ground 10

  1. [30]
    In breach of s 3(b) and s 28(3)(a) of the QCAT Act the Member, respectively, failed to deal with the matter in a fair and just manner and failed to accord the Applicant natural justice in respect of the Applicant’s refusal to accept, complete or sign a defects document provided by the Respondent.

Ground 11

  1. [31]
    The Member erred by finding that the Respondent was entitled to be paid pursuant to substantial performance and at the same time failing to make a decision whether the Form 26 lodged by the Respondent is misleading and in breach of s 216 of the QCAT Act as it does not disclose any entitlement to the final payment on the basis of the doctrine of substantial performance.

Ground 12

  1. [32]
    The Member erred in finding, from a Practical Completion perspective, that a finding could be made after 5 years that Practical Completion had not been reached.

Ground 13

  1. [33]
    In breach of s 3(b) and s 28(3)(a) of the QCAT Act the Member, respectively, failed to deal with the matter in a fair and just manner and failed to accord the Applicant natural justice in finding that the Respondent had not sought payment in relation to the unsigned variations.

Ground 14

  1. [34]
    The Member erred in finding that there had not been any breach of contract by virtue of the fact that some roof overhang remained at 300mm.

Ground 15

  1. [35]
    The member erred in not maintaining specialist knowledge, expertise and experience and in not ensuring the appropriate use of the knowledge, expertise and experience in accordance with s 4(f)-(g) of the QCAT Act.

Ground 16

  1. [36]
    The Member erred in finding that liquidated damages could not be dealt with as there was no clear evidence for the Member to make a finding.

Ground 17

  1. [37]
    Having acknowledged the undisputed evidence that the Respondent had not completed the works in accordance with the contract, the Member failed to find that the Respondent was in breach of the contract, that the Practical Completion stage had not been reached and that the Respondent was not entitled to final payment with interest pursuant to his Form 26 application.

Ground 18

  1. [38]
    Errors in law made by the Appeal Tribunal in its decision made on 10 June 2015 have impacted on errors made by the Member in her decision on 10 July 2017.

Ground 19

  1. [39]
    The Appeal Tribunal and the Member erred in failing to find that the Respondent was in breach of the contract in installing a bamboo floor instead of timber as stated in the contract.

Applicant’s oral submissions

  1. [40]
    In addition to voluminous written submissions, the Applicant addressed lengthy oral submissions to us in the present appeal hearing. The submissions made orally were largely repetitive of the Applicant’s written submissions. In particular, the Applicant’s oral submissions went to the following issues:
    1. (a)
      assertions that the Applicant had been denied natural justice and reasons previously given were not lawful; 
    2. (b)
      the Member’s approach to dealing with the matter on the basis of Practical Completion was erroneous in law and failed to comprehend the Applicant’s defence to the assertion that the works had not been practically completed; 
    3. (c)
      the Member had failed to provide adequate reasons for the finding that Practical Completion had been achieved; 
    4. (d)
      the Respondent had failed to prove properly that Practical Completion had been achieved; 
    5. (e)
      Radcliff and anor v Walker[31] was a case in which the Tribunal found that Practical Completion was not achieved until all the work was done; 
    6. (f)
      the Respondent breached Clause 9.7 of the building contract by failing to provide invoices or other documentation concerning Prime Cost Items;
    7. (g)
      the Applicant had not claimed for damages, yet losses suffered by her were taken into account by the Member;
    8. (h)
      the Applicant should be reimbursed for interest she has had to pay on money she borrowed in order to comply with the Tribunal’s decision. 
  2. [41]
    The Applicant also made assertions concerning the Respondent’s tax and financial status which are completely unrelated to the appeal. 
  3. [42]
    Nothing said by the Applicant in her oral submissions added anything of substance to her written submissions.

Respondent’s submissions

Ground 1

  1. [43]
    The Member found that Practical Completion had been reached. She was entitled to do so as the Appeal Tribunal found that there were no demonstrable errors in relation to the Member’s earlier finding that the items complained of by the Applicant as being defective or incomplete were ‘minor in nature’.
  2. [44]
    It was open on the evidence for the Member to conclude, as she did, that the Applicant’s complaints do not prevent a finding that Practical Completion had been reached in accordance with section 67(6) of the DBC Act and clause 17.7 of the contract between the parties.
  3. [45]
    The Member found that Practical Completion had been reached as:
    1. (a)
      Essentially, the Tribunal's view was that the concerns raised by Ms Pivovarova are so trifling that they do not have any bearing on whether Practical Completion was reached. 
    2. (b)
      The Respondent also points to paragraph [3] of the original decision delivered on 24 July 2013 by the Member where it was found that Mr Michelsen's work was neither defective, nor in breach of the contract.
    3. (c)
      In the first appeal decision, the Appeal Tribunal specifically found there was no demonstrated errors in relation to the Tribunal's earlier finding that the items complained of by the Applicant as being defective or incomplete were “minor in nature”.
    4. (d)
      The Member was entitled to conclude, based on all the evidence, and, in particular, the evidence of the BSA inspector, that the works had reach Practical Completion and so payment was due to the Respondent. 
    5. (e)
      The Member’s alternative finding that the Respondent had substantially performed his obligations under the contract and thus should not be found to be in breach on the basis of the minor deviations from the strict terms of the contract was based on the doctrine of substantial performance.  This was adequately addressed by the Member in her decision of 10 July 2017.

Ground 2

  1. [46]
    There is nothing in the transcript or the conduct of the matter to suggest that the Applicant was treated unfairly.  She was given the opportunity to present her case and to make submissions to the Tribunal about the doctrine of substantial performance and did so.

Ground 3, 4 & 5

  1. [47]
    There was no evidence that the Member failed to observe the requirements of natural justice or extend a proper opportunity to the Applicant to present a case.
  2. [48]
    The Member accepted the QBSA’s report as it was the only expert evidence before the Tribunal in relation to whether the building was completed in accordance the plans. This was a finding of fact not an error of law.
  3. [49]
    The applicant has conducted her case in a way that demonstrates she understood the issues to be determined and the evidence before the Tribunal on each of the matters.

Ground 6

  1. [50]
    The decision of the Member outlines the correct contractual clause, clause 11.9, for interest to be awarded at a rate of 15 per cent per annum.

Grounds 7 & 13

  1. [51]
    These two grounds of appeal relate to Prime Cost Items, adjustments and variations.  The Respondent says that the Member took into account evidence from both the Applicant and Respondent in relation to these costs at the hearing and reduced the amount payable awarded in relation to any variations.
  2. [52]
    Further, and in so far as the contention that the Respondent failed to produce invoices of the underlying costs to support Prime Cost or Provisional Sum Items to the Applicant, the Respondent says clause 9.7 of the contract also permits the Respondent to provide “other documents relating to the actual costs incurred by the Contract”.
  3. [53]
    The Respondent provided the reconciliation document dated 12 June 2012 to the Applicant and says it was open to the Member to make a deduction for these matters based on the written and oral evidence of the parties.
  4. [54]
    The first Appeal Tribunal held at [74] that “Mr Michelson acknowledges that Ms Pivovarova paid $6,830 for Prime Cost Items supplied by her.  The contract price ought to be reduced by this amount.”

Grounds 8, 9 & 10

  1. [55]
    It is common practice in judicial decisions to include an alternative finding.  There is no error in law.
  2. [56]
    The Member’s consideration of Thompson Residential Pty Ltd v Hart and Anor[32] is highly relevant to the matter and the Applicant has misunderstood the doctrine of substantial performance.

Ground 11

  1. [57]
    This ground has no merit.  The Applicant was given the opportunity to present her case and to make submissions to the Tribunal about the doctrine of substantial performance.
  2. [58]
    It is clear from both the decisions of the Member that there was an analysis of the evidence in order to arrive at the conclusion that Practical Completion had been reached and that all of the items complained of by the Applicant were minor in nature and were “so trifling that they do not have any bearing on whether Practical Completion was reached”.
  3. [59]
    What constitutes substantial performance is a question of fact and depends upon the nature of the contract and all the circumstances.

Ground 12

  1. [60]
    There is no merit in this argument.  The Respondent says that the Member's reasons for the finding of Practical Completion are set out in both of her decisions.  Reference to the time elapsed only has illustrative bearing in relation to s 67(6)(b) of the DBC Act.

Ground 14

  1. [61]
    This ground relates the finding of fact which is dealt with in paragraph [20] of the Member’s decision.  This is not an error of law.

Ground 15

  1. [62]
    This is not a valid ground of appeal.

Ground 16

  1. [63]
    The Respondent says the decision adequately addresses this issue as the finding that $1,680 represented the reasonable cost of rectifying and completing minor defective and incomplete work was open to the Member and was not disturbed on Appeal.
  2. [64]
    It was the inaccuracy of the initial reasons for the decision in failing to detail that this decision was consistent with the finding of substantial performance that the Appeal Tribunal took issue with.  The Respondent says that this has been addressed by the discussion of the law relating to substantial performance at paragraph [29] and [30] of the decision dated 10 July 2017.

Ground 17

  1. [65]
    This ground appears to re-litigate issues which have already been determined.

Ground 18

  1. [66]
    This ground is an attempt to appeal the Appeal Tribunal’s decision of 10 June 2015 and should not be allowed.

Ground 19 

  1. [67]
    The Respondent says this ground is another attempt to re-litigate issues which have been decided.  There is no error of law. The Appeal Tribunal did not disturb the finding regarding the flooring.

Discussion and conclusion

  1. [68]
    It is clear from the filed material and directions that Ground 1 is not made out as the Applicant and Respondent made submissions in relation to the doctrine of substantial performance.[33] 
  2. [69]
    The Applicant was given ample opportunity to present her case to the Member, albeit in writing, and did so. We consider that there is no basis whatsoever for a finding that the Member exercised any bias or denied the Applicant natural justice or treated her in an unjust or unfair manner. Ground 2 is not made out.
  3. [70]
    The doctrine of substantial performance was raised in the first Appeal Tribunal. The Applicant well understood the issues at the time of making submissions to the Member. It was not necessary that the Respondent amend his Form 26 application for the issue to be considered by the Member. The Form 26 application clearly set out his claim for monies due under the contract as Practical Completion had been reached. 
  4. [71]
    The Respondent had submitted in the first appeal that he was entitled to be paid for the works completed less any claim for defective or incomplete work.[34] However, the Member, although making findings consistent with the doctrine of substantial performance, did not afford the parties an opportunity to make submissions on the doctrine. It was clearly an issue before the Appeal Tribunal and, subsequently, before the Member. It was an alternative basis for the claim. The Applicant made submissions and was not disadvantaged. She was not denied natural justice. Grounds 3, 4 and 5 are not made out.
  5. [72]
    Clause 11.9 of the contract allowed interest at 15 per cent; the Member was entitled to make the finding. Ground 6 is not made out.
  6. [73]
    The Appeal Tribunal observed that the contract price ought to be reduced by $6,830 for Prime Cost Items supplied by the Applicant. The Member made that adjustment. Grounds 7 and 13 are not made out.
  7. [74]
    The Member was entitled to make the finding on the basis of substantial performance, and did so, as an alternative finding that the contract had reached Practical Completion. Grounds 8, 9 and10 are not made out.
  8. [75]
    Ground 11 reiterates the Applicant’s complaint that she was not given an opportunity of presenting her case. Clearly, she was. The Member properly analysed the evidence in order to arrive at her conclusion that Practical Completion had been reached and that all of the items complained of by the Applicant were minor and “so trifling that they did not have any bearing on whether Practical Completion had been reached”. Ground 11 fails.
  9. [76]
    We see no merit in Ground 12. Clearly the Member’s reference to the statement that 5 years had elapsed since the Applicant had moved into the house was illustrative.

Practical Completion will be determined by the terms of the contract and the DBC Act. The comment is illustrative that Practical Completion was reached and the house was fit for habitation apart from minor omissions or defects, but it does not vitiate the Member’s earlier findings.  

  1. [77]
    Ground 14 relates to a finding of fact and there is no demonstrable basis for it to be disturbed.
  2. [78]
    Ground 15 criticises the Member’s expertise and is not a valid ground of appeal.
  3. [79]
    Ground 16 relates to the claim for liquidated damages. This was dealt with by the first Appeal Tribunal which was satisfied that there was no demonstrable error.[35]
  4. [80]
    Ground 17 re-litigates matters already determined, which are not appealable before this Tribunal. 
  5. [81]
    Ground 18 relates to the findings of the Appeal Tribunal and cannot be considered in this appeal. 
  6. [82]
    Ground 19 also re-litigates matters that are already determined and are not appealable before this Tribunal. 
  7. [83]
    On the basis of the above reasons, this Appeal Tribunal is satisfied that none of the grounds of appeal are made out and the appeal must fail.

Footnotes

[1] Pivovarova v Michelsen [2015] QCATA 73.

[2] Ibid, [4]-[5].

[3] QCAT Act, s 142(3)(b).

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

[5] QCAT Act, s 147(2).

[6] Ericson v Queensland Building Services Authority [2013] QCA 391 at [13].

[7] Pivovarova v Michelsen [2015] QCATA 73, [21].

[8] Ibid, [28].

[9] Ibid, [42].

[10]Ibid, [45].

[11] Ibid, [53].

[12]Ibid, [57].

[13]Ibid, [74].

[14] Ibid, [84].

[15] Ibid, [82].

[16] Ibid, [87].

[17] Ibid, [88].

[18] Ibid, [93].

[19] Ibid, [102-3].

[20] Ibid, [106].

[21] Michelsen v Pivovarova [2017] QCAT 235 at [11].

[22]Ibid.

[23] Ibid, [12].

[24] Ibid, [18]. 

[25] Ibid.

[26] Ibid, [21]-[32]. 

[27] Ibid, [32].

[28] Ibid.

[29] Pivavarova v Michelsen [2018] QCATA 1.

[30] [2014] QDC 132.

[31] [2011] QCAT 435.

[32] [2014] QDC 132.

[33] Ms Pivovarova’s Application for Miscellaneous matters dated 20 September 2015 requested directions allowing her to amend her original response and/or counter application and to lodge further evidence in support thereof so that she could address the reasons of the Appeal Tribunal in [2015] QCATA 73. Annexure 1 sets out Ms Pivovarova’s reasons for seeking those directions which deal with the issue of substantial performance.  Directions of Member Cullen dated 9 October 2015 allowed Ms Pivovarova to file the proposed amended response and/or counter application along with the further evidence she sought leave to adduce and Directions of Senior Member Brown dated 18 November 2015 provided for submissions on further evidence she sought leave to adduce at the final hearing of BDL245-12. Both directions also provided for submissions in response by Peter B. Michelsen t/as Peter Michelsen Building Service.

[34] [2015] QCATA 73, [47].

[35] Ibid, [103].

Close

Editorial Notes

  • Published Case Name:

    Tatiana Pivovarova v Peter B Michelsen t/as Peter Michelsen Building Service ABN 84003506297

  • Shortened Case Name:

    Pivovarova v Michelsen

  • MNC:

    [2019] QCATA 54

  • Court:

    QCATA

  • Judge(s):

    Daubney P, Member King-Scott

  • Date:

    10 May 2019

Litigation History

EventCitation or FileDateNotes
Primary JudgmentQCAT (No Citation)24 Jul 2013Domestic building dispute: application by builder that the respondent pay final/practical completion stage payment; application granted: respondent to pay the sum of $49,500 with interest to the builder: Member Cullen
Primary Judgment[2015] QCATA 7310 Jun 2015Appeal allowed; decision made 24 July 2013 set aside; matter remitted for determination according to law: Thomas J and Member Deane.
Primary Judgment[2017] QCAT 23510 Jul 2017Domestic building dispute: application by builder that the respondent pay final/practical completion stage payment; application granted: respondent to pay the sum of $40,990 with interest to the builder: Member Cullen.
Primary Judgment[2019] QCATA 5410 May 2019Appeal Dismissed: Daubney J and Member King-Scott.
Appeal Determined (QCA)[2019] QCA 256 (2019) 2 QR 50819 Nov 2019Application for leave to appeal dismissed: Fraser JA, Boddice and Crow JJ.
Special Leave Refused (HCA)[2020] HCASL 4111 Mar 2020Special leave refused: Nettle and Gordon JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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