Horner v Unique Design Qld Pty Ltd
[2020] QCATA 182
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- Unreported Judgment
- Horner v Unique Design Qld Pty Ltd[2020] QCATA 182
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Horner v Unique Design Qld Pty Ltd[2020] QCATA 182
Horner v Unique Design Qld Pty Ltd[2020] QCATA 182
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Horner v Unique Design Qld Pty Ltd [2020] QCATA 182 |
PARTIES: | rosalie horner (applicant/appellant) v unique design qld pty ltd (respondent) |
APPLICATION NO/S: | APL031-19 |
ORIGINATING APPLICATION NO/S: | BDL146-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 26 February 2020 |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown Member Deane |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – where the applicant sought leave to appeal – where the applicant was ordered to pay a decision sum in the tribunal below – where the applicant seeks to rely upon fresh evidence – where the documents sought by the applicant were not before the tribunal below – where the applicant fails to provide any submissions in support – where the applicant re-agitates a previously decided matter – where no error found in the decision below – where leave to appeal not merited CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – where the parties entered into a building contract for renovation of a bathroom – where disputes arose as to terms of the contract – where no error found in the learned member’s construction of the contract – where leave to appeal not merited Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b) Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 Dutta v Guy Kits t/a Design Build Homes [2014] QCATA 280 Fox v Percy (2003) 214 CLR 118 Gemview Jewellery v Florian Stafleu [2011] QCATA 276 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Ryan v Worthington [2015] QCA 201 Unique Design Qld Pty Ltd v Horner [2019] QCAT 11 |
REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented by Michael Peacock |
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]Mrs Horner contracted with Unique Design Qld Pty Ltd (‘the Builder’) to renovate her bathroom. The contract is dated 11 January 2018 (‘the Contract’). She did not pay the balance claimed by the Builder as she contended that the shower screen installed was different from what she contracted to receive. The Builder commenced proceedings.[1] Mrs Horner unsuccessfully resisted the Builder’s claim and was ordered to pay the balance claimed by the Builder in the sum of $7,065.00 within 14 days of the order.[2]
- [2]Mrs Horner seeks leave to appeal that order on the basis that the bathroom plan was altered in respect of the screen door without her knowledge and agreement. She contends that a variation form ought to have been supplied. This is essentially the same basis upon which she disputed the original claim. She seeks an order that the Builder replace the screen with what Mr Peacock proposed on his initial visit and to be reimbursed outlay costs incurred by her in this appeal proceeding.[3]
Fresh evidence
- [3]The applications to rely upon fresh evidence are dismissed.
- [4]Mrs Horner’s application for miscellaneous matters filed on 11 June 2019 was directed to be treated as an application for leave to rely upon fresh evidence and to be determined together with her application for leave to appeal or appeal.[4]
- [5]Mrs Horner also filed a further application for miscellaneous matters on 1 August 2019, which appears to be a further application for leave to rely upon fresh evidence.[5]
- [6]Attached to those applications are some documents which were not before the Tribunal below. One of the documents appears to be measurements of the screen by the Builder’s subcontractor dated 14 March 2018 as sent to the Builder. There is a notation that it was received, we assume by Mrs Horner, on 20 June 2019, in response to the Mrs Horner’s application for miscellaneous matters filed on 11 June 2019, which asked for the set out measurements of 14 March 2018.
- [7]Mrs Horner’s submissions do not address why the evidence was not available to the Tribunal below, why it is important, nor why the fresh evidence should be accepted as directed. The documents attached are primarily photographs of Mrs Horner’s bathroom before and after the renovation. There is no reason why such documents could not have been offered in evidence at the original hearing.
- [8]In relation to the 14 March 2018 measurements, there is no explanation as to why Mrs Horner did not seek a direction for the production of this document in the original proceedings. Even if we were minded to grant leave to rely upon this document in the appeal, which we are not, the drawing is consistent with the explanation provided to the learned Member during the original hearing by the Builder’s witnesses of the screen as installed, which the learned Member found was what was agreed under the Contract to be supplied.
Primary Grounds of Appeal/Leave to Appeal
- [9]An appeal on a question of law is as of right.[6] If an appeal is on a question of fact or a question of mixed law and fact, leave is required.[7] There are well established principles as to when leave should be granted.[8] Is there a reasonably arguable case of error in the primary decision?;[9] is there a reasonable prospect that the applicant will obtain substantive relief?;[10] is leave necessary to correct a substantial injustice to the applicant caused by some error?;[11] is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage?[12]
- [10]For the reasons that follow, there is no demonstrated error of law. Nor is there any demonstrated error of fact or of mixed fact and law and therefore no basis for granting leave to appeal.
- [11]Mrs Horner’s application and submissions are not particularly helpful in addressing the principles to which we have referred. Her position appears to be that the Tribunal was in error in making the findings it did, that the evidence should be reconsidered and that a different decision ought to be made.
- [12]She seeks essentially to reargue the case she made at the hearing and challenges the learned Member’s findings. As has been previously observed by the Appeal Tribunal:[13]
The appeal process is not for rearguing the case; it is for correcting errors made in the decision of the tribunal.[14]
- [13]Much of the original hearing and the submissions before us focused upon conversations held after the Contract had been signed. A review of the transcript shows that there was no dispute between the parties as to what documents constituted the Contract.
- [14]The learned Member construed the written terms of the Contract and found that it provided for one frameless screen door and that there was no provision for hanging the screen door from the ceiling. The Member correctly, in our view, observed that to discover the intention of the parties, one starts with the Contract and not with discussions after the Contract is signed.[15]
- [15]The proper construction of a contract is a question of law.[16] In our view no error has been demonstrated. The learned Member approached the construction of the Contract in an appropriate way. It is the parties’ objective intention set out in the Contract which is to be discerned rather than one party’s subjective intention.
- [16]The Articad drawings and measurement plan, which formed part of the Contract, show a singular sliding door. Mrs Horner contends that she understood the door would be 1626 mm wide whereas the actual door as installed is 700 mm wide.
- [17]The learned Member found the Articad drawing showed:
a single sliding door hanging from two wheeled supports on a top rail and a fixed panel of glass adjacent the single sliding door. The fixed panel is different from the door.[17]
- [18]The Articad drawings referred to by the learned Member shows a total dimension of the single sliding door and fixed panel as 1626 mm.
- [19]The learned Member found as a matter of fact, that the sliding screen door actually supplied was the product Mrs Horner contracted to receive from the Builder.[18]
- [20]Consistent with the learned Member’s findings, the Articad drawing shows that the sliding door contracted for was to have a width in the order of half the total dimension of 1626 mm.
- [21]In construing the Contract as to what the parties contracted to supply and receive, the learned Member had regard to clause 1 of the Contract which provided:
I understand the the [sic] bathroom plan we have agreed upon is a graphical representation only and that images in it may not be an accurate representation of the products we have chosen.[19]
- [22]In limited circumstances, discussions prior to a contract being signed can be used to aid construing the written terms.
- [23]Mr Peacock gave evidence as to the discussion with Mrs Horner when he was estimating the job, prior to signing the Contract, as to the description of the proposed screen. His evidence was that he explained that the sliding screen would not close off both the shower and the toilet at the same time. Mrs Horner’s evidence was that Mr Peacock did not explain this to her. The learned Member resolved this conflict in the evidence by preferring the evidence of the Builder’s witnesses.[20]
- [24]
- [25]The question for this Appeal Tribunal is whether or not the relevant findings of fact by the learned Member were open on the evidence. We find that they were.
Other grounds
Disadvantaged by not having documents
- [26]No error is established in this regard.
- [27]Mrs Horner contends that she was disadvantaged by not being provided with the attachments to Mr Peacock’s statement.[23] However she concedes she otherwise had the documents, which formed those attachments. A review of the transcript shows that she did not raise this during the hearing and that the learned Member went to some lengths to ensure that the parties had copies of the documents relied upon by the other party.
Amount does not reconcile
- [28]No ground of appeal or error sufficient for leave to appeal is established in this regard.
- [29]Mrs Horner contends that the amount found to be payable does not reconcile with the contract price as varied less amounts paid ($7,115.00). Mrs Horner did not raise this issue in the proceedings below. It is too late to raise such an issue upon an appeal. In any event, the amount of $7,065.00 sought by the Builder and ordered to be paid is less than the amount which may have been payable. If there is an error, it is in Mrs Horner’s favour.
Defective work or damage
- [30]No error is established in this regard.
- [31]Mrs Horner has raised issues of defective work or damage to the bathroom caused by the Builder or its sub-contractors. Mrs Horner did not bring a counter-application or otherwise raise this issue in the proceedings below. It is too late to raise such an issue upon an appeal.
Summary
- [32]Nothing in the submissions or in the transcript or in the reasons of the learned Member suggest any error of law or that any finding of fact was not reasonably open on the evidence.
- [33]Insofar as leave is required, leave to appeal is refused. The appeal is otherwise dismissed.
Builder’s claims
- [34]The Builder seeks orders for costs of both the original proceedings and these appeal proceedings and an order for interest.[24]
- [35]The Builder refers to costs such as filing fees paid and loss of productive time by the Builder’s two directors. The Builder did not file an Application for leave to appeal or appeal in respect of the learned Member’s failure to make any order as to costs. The question of the Builder’s costs of the original proceedings including the filing fee paid is not before us. In any event, it is most unlikely that costs in respect of the parties’ time or income foregone would have been ordered. Costs are usually only ordered in respect of outlays incurred.
- [36]The Builder did not seek an order for interest in the original proceedings. It is too late to seek an order for interest in these appeal proceedings.
- [37]In relation to the costs of these appeal proceedings, we make directions to allow for an application for costs in the event that a party has grounds to make an application.
Orders
- [38]The orders are as follows:
- Application for miscellaneous matters filed 11 June 2019 to rely upon fresh evidence is dismissed.
- Application for miscellaneous matters filed 1 August 2019 to rely upon fresh evidence is dismissed.
- Application for leave to appeal is refused.
- Appeal otherwise dismissed.
- Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to the other party, by 4:00pm on 6 March 2020.
- If an application for costs is made in accordance with order number 5:
- (a)the other party is to file in the Tribunal two (2) copies and give one (1) copy to the party making the application, any submissions and evidence in response, by 4:00pm on 27 March 2020; and
- (b)the application will be determined on the papers and without an oral hearing, unless a party requests an oral hearing, not before 4:00pm on 27 March 2020.
- (a)
Footnotes
[1]Application for domestic building disputes filed 1 June 2018.
[2]Unique Design Qld Pty Ltd v Horner [2019] QCAT 11.
[3]Application for miscellaneous matters filed 27 May 2019; Appeal Tribunal Directions dated 17 July 2019, Direction 4.
[4]Appeal Tribunal Directions dated 17 July 2019, Directions 5(a), (c).
[5]As contemplated in Appeal Tribunal Directions dated 17 July 2019, Directions 9(a), (c).
[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(1).
[7]Ibid s 142(3)(b).
[8]See, eg, Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.
[9]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[10]Cachia v Grech [2009] NSWCA 232, [13].
[11]Ibid.
[12]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, 578, 580.
[13]Gemview Jewellery v Florian Stafleu [2011] QCATA 276, [15].
[14]Dutta v Guy Kits t/a Design Build Homes [2014] QCATA 280.
[15][2019] QCAT 11, [19] (citations omitted).
[16]Ryan v Worthington [2015] QCA 201.
[17][2019] QCAT 11, [23] (citations omitted).
[18]Ibid [28].
[19][2019] QCAT 11, [21] (citations omitted).
[20]Ibid [29].
[21]Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125–126.
[22]Chambers v Jobling (1986) 7 NSWLR 1, 10.
[23]Statement of Michael Peacock dated 6 September 2018, exh 1.
[24]Respondent’s submissions dated 19 June 2019.