Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2024
  4. Monsour v C & R Darvill Pty Ltd - [2024] QCATA 103

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Pending

Monsour v C & R Darvill Pty Ltd[2024] QCATA 103

Monsour v C & R Darvill Pty Ltd[2024] QCATA 103

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Monsour & Anor v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust [2024] QCATA 103

PARTIES:

MARIE MONSOUR

BRUCE MONSOUR

(applicants/appellants)

v

c & r DARVILL PTY LTD ATF C & r DARVILLL FAMILY TRUST

(respondent)

APPLICATION NO/S:

APL259-22

ORIGINATING APPLICATION NO/S:

BDL065-18

MATTER TYPE:

Appeals

DELIVERED ON:

10 September 2024

HEARING DATE:

13 and 14 September 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The application to extend time to seek leave to appeal in respect of appeal grounds 1, 2, 5(a) and 5(b) is refused;
  2. The application to reinstate appeal ground 3 is refused;
  3. The application to amend appeal ground 4 is refused;
  4. The appeal in respect of appeal grounds 4 and 5(c) is dismissed;
  5. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of written submissions addressing the costs of the appeal, not exceeding five (5) pages in length, by: 4:00pm on 2 October 2024;
  6. The parties are to file in the Tribunal two (2) copies and exchange one (1) copy of written submissions in reply, not exceeding five (5) pages in length, by: 4:00pm on 16 October 2024.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant applied for leave to appeal – where respondent given leave to amend counter-application at the commencement of the hearing below – where the applicant objected to the amendment – where the applicant did not seek an adjournment or an opportunity to file further evidence in response – where tribunal below determined that the respondent was entitled to recover loss suffered by non-compliant variations claimed in the amended counter-application – whether the applicants were afforded natural justice – where respondent permitted to lead additional evidence in chief at hearing – whether applicants denied procedural fairness – whether tribunal’s reasons for permitting amendment to counter-application were adequate

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – variations – where contract governed by Domestic Building Contracts Act 2000 (Qld) – where builder claimed for non-compliant variations – where builder applied to recover amounts for non-compliant variations – where tribunal at first instance permitted recovery of amounts for non-compliant variations – where tribunal at first instance found ‘exceptional circumstances’ warranting conferring entitlement on builder to recover for non-compliant variations – whether tribunal at first instance erred in finding ‘exceptional circumstances’ – whether approval for the recovery of an amount for non-compliant variations requires each variation to be considered or whether the total circumstances may be considered

Domestic Building Contracts Act 2000 (Qld) s 79, s 80, s 82, s 83, s 84

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61, s 142, s 143

Allaro Homes Cairns Pty Ltd v O'Reilly & Anor [2012] QCA 286

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Brutus v. Cozens (1973) AC 854 Poiner v Quirk [2007] QDC 299

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

Hogan v Hinch [2011] HCA 4

King & Ors v Australian Securities and Investments Commission [2018] QCA 352

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

Lee v Lee (2019) 266 CLR 129

Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219

Martin v Gosdschan [2011] QCATA 224

Monsour & Anor v C & R Darvill Pty Ltd [2022] QCAT 302

Monsour & Anor v C & R Darvill Pty Ltd [2023] QCAT 62

Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189

Vetter v Lake Macquarie City Council [2001] HCA 12

Webb v The Queen (1994) 13 WAR 257

APPEARANCES & REPRESENTATION:

Applicant:

Mr P Beehre of Counsel instructed by AJ Torbey & Associates

Respondent:

Mr G Sheahan of Counsel instructed by All Building Law

REASONS FOR DECISION

  1. [1]
    Darvill undertook building renovations to the Monsours’ home. As regrettably happens from time to time the parties fell into dispute. The Monsours commenced proceedings seeking the recovery of what they said were overpayments to Darvill, the recovery of amounts paid for variations, and damages for the cost of rectifying defective building work. Darvill counterclaimed for unpaid monies owing in respect of the building works.
  2. [2]
    The Tribunal ordered the Monsours to pay Darvill $134,407.62[1] .
  3. [3]
    The Monsours appeal the decision.

The decision at first instance

  1. [4]
    The parties entered into a building contract for substantial renovations to the Monsours’ home. It was a fixed price contract for over $1.4 million. As the works progressed, the relationship between the parties became increasingly fraught. The Monsours formed the view that they were being overcharged by the builder. The Monsours gave notice terminating the contract. Darvill in turn gave notice of termination.
  2. [5]
    The Monsours commenced proceedings. Darvill counterclaimed. 
  3. [6]
    The contract was governed by the provisions of the Domestic Building Contracts Act 1990 (Qld) (‘DBCA’). At the commencement of the hearing Darvill was given leave to amend its counter-application to include a claim for recovery of amounts for variations pursuant to s 84 of the DBCA.
  4. [7]
    The hearing lasted eight days. Dr Monsour, a medical practitioner, was the principal advocate for the applicants. Initially the matter was listed for 4 days. The hearing contined for two days after an almost four month hiatus. Some four months later the hearing resumed for a final two days.
  5. [8]
    The claim by the Monsours to recover an overpayment to Darvill failed as did their claim to recover payments made for variations. Darvill was successful in its counterclaim for the outstanding progress claim less the value of defects it would have been required to rectify had the contract been completed. Darvill was also successful in its claim pursuant to s 84 of the DBCA to recover amounts for variations.
  6. [9]
    The Monsours were ordered to pay Darvill $134,407.62.

The grounds of appeal

  1. [10]
    It is fair to observe that the grounds of appeal have been somewhat of a moving feast. It is therefore necessary to say something about the history of the appeal and the grounds relied upon by the Monsours.
  2. [11]
    Originally there was but a single ground of appeal: the Tribunal erred in law in the interpretation and application of s 84(4) of the Domestic Building Contracts Act 2000 (Qld).
  3. [12]
    The Monsours filed further amended appeal submissions in November 2022 containing amended grounds of appeal:
    1. Ground 1 – the Tribunal erred in law in permitting Darvill to amend its counterclaim to include a claim under s 84 of the Domestic Building Contracts Act 2000 (Qld) (DBCA);
    2. Ground 2 – the Tribunal erred in law in failing to provide adequate reasons for the decision to permit the amendment of the counterclaim;
    3. Ground 3 – the Tribunal erred in fact in inferring that relief of exceptional circumstances under s 84 of the DBCA was always in contemplation on the basis of the Notice of Termination pursuant to Clause 20 of the Contract;
    4. Ground 4 – the Tribunal erred in fact or law in finding that there were exceptional circumstances pursuant to s 84 of the DBCA with respect to the variations;
    5. Ground 5 – the appellants were denied procedural fairness or natural justice as a result of:
      1. The Tribunal allowing the respondent to adduce new evidence contrary to Tribunal directions made in 2019;
      2. The Tribunal allowing the respondent to adduce evidence in the form of a new version of the respondent’s quantity surveyor report;
      3. Eleven of the respondent’s witnesses were not made available for cross examination.
  4. [13]
    In December 2022, subsequent to filing the amended appeal submissions, the Monsours filed an application seeking an extension of time to file an amended application for leave to appeal or appeal, regularising the amended grounds of appeal contained in the further amended appeal submissions. In February 2023 the Monsours filed an application seeking an extension of time to file submissions in support of the application for leave to appeal or appeal. In that application they stated the amended grounds of appeal were on questions of law only, however leave to appeal was required to appeal interlocutory decisions made in the course of the hearing.
  5. [14]
    On 3 May 2023 the Tribunal gave the Monsours leave to amend the application for leave to appeal or appeal in accordance with the application.
  6. [15]
    Darvill says that the Monsours abandoned ground of appeal 3 as it raised an error of fact and abandoned ground of appeal 4 insofar as it relied upon an error of fact.
  7. [16]
    On 7 September 2023, prior to the appeal hearing, the Monsours filed an application to further amend the grounds of appeal to reinstate ground of appeal 3. The application is opposed by Darvill.
  8. [17]
    The grounds of appeal at the commencement of the appeal hearing were therefore:

Ground 1 – the Tribunal erred in law in permitting Darvill to amend its counterclaim to include a claim under s 84 of the Domestic Building Contracts Act 2000 (Qld) (DBCA);

Ground 2 – the Tribunal erred in law in failing to provide adequate reasons for the decision to permit the amendment of the counterclaim as referred to in ground 1;

Ground 3 – abandoned, however application made to reinstate;

Ground 4 – the Tribunal erred in law in finding that there were exceptional circumstances pursuant to s 84 of the DBCA with respect to the variations;

Ground 5 – the appellants were denied procedural fairness or natural justice as a result of:

  1. The Tribunal allowing the respondent to adduce new evidence contrary to Tribunal directions made in 2019;
  2. The Tribunal allowing the respondent to adduce evidence in the form of a new version of the respondent’s quantity surveyor report;
  3. Eleven of the respondent’s witnesses were not made available for cross examination.
  1. [18]
    The abandoned ground of appeal 3 being an appeal on a question of fact, and grounds of appeal 1, 2, 5(a) and 5(b) being appeals from interlocutory decisions made in the course of the hearing below, require leave.[2] By s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an application for leave to appeal must be filed within 28 days after the ‘relevant day’. The ‘relevant day’ means, inter alia, where no written reasons have been given or requested, the day the person received notice of the decision, or where written reasons have been provided, the day the person is given the written reasons for the decision.
  2. [19]
    As may be apparent from the above, the issues for determination relating to the amendment of the grounds of appeal at the commencement of the appeal were:
    1. Should leave be granted to reinstate ground of appeal 3;
    2. If the reinstatement is granted in respect of appeal ground 3, should time be extended for the filing of the application for leave to appeal;
    3. In respect of appeal grounds 1, 2, 5(a) and 5(b) should time be extended for the filing of the application for leave to appeal.
  3. [20]
    In the course of the appeal hearing the Monsours made a further application to amend appeal ground 4, seeking to assert an error of mixed law and fact. 

The application to reinstate ground of appeal 3

  1. [21]
    Ground of appeal 3 is:

The Tribunal erred in fact in inferring that relief of exceptional circumstances under s 84 of the DBCA was always in contemplation on the basis of the Notice of Termination pursuant to Clause 20 of the Contract.

  1. [22]
    The ground of appeal is said by the Monsours to arise out of the following passage from the reasons:

It is not disputed that the parties entered into a domestic building contract for renovations to the Monsours’ home. None of the variation claims complied with the strict requirements then applying pursuant to the DBCA. At hearing the builder applied for, and was granted, leave to amend its response and counter application to clarify its claim for payment of variations was pursuant to s 84(2) DBCA. I note the right of the builder to recover variations through application to the Tribunal utilising s 84 DBCA process was flagged from outset by solicitors acting for the Monsours when the purported notice of termination was issued by the Monsours on 30 June 2016. (underlining added)

  1. [23]
    The notice of termination was in evidence. In the notice, the Monsours stated that Darvill had breached s 79 to s 83 of the DBCA by failing to ensure that a variation document containing information required by the DBCA was signed before the variation work was carried out. The notice stated that Darvill had made no application under s 84 of the DBCA to QCAT to recover amounts for the variations.
  2. [24]
    In determining whether to permit the reinstatement of the ground of appeal, it is necessary to consider the merit of the ground.
  3. [25]
    There is nothing in the passage from the reasons to suggest that the learned member had drawn any particular inference, and certainly not as submitted for by the Monsours. It is readily apparent that the learned member was simply observing the termination notice recognised that the builder had a right to avail itself of the provisions of s 84 of the DBCA and apply to the Tribunal to recover an amount for the non-compliant variations.. Even if the inference contended for by the Monsours could be said to have been drawn  it is far from clear what they say the consequence was by reference to any specific identified error in the decision below.
  4. [26]
    Even if leave was given to reinstate the ground of appeal, the Monsours would be faced with the hurdle of obtaining leave to appeal. The principles relevant to whether leave to appeal should be granted are well established and were summarised in Lida Build Pty Ltd v Miller and Anor:[3]

[9]   Leave to appeal will ordinarily only be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage [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 and 580.]; there is a reasonably arguable case that the primary decision-maker made an error [QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.] and there are reasonable prospects that the applicant would be granted orders in its favour [Cachia v Grech [2009] NSWCA 232, [13].]; or to correct a substantial injustice to the applicant caused by error [QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 QD R 41].

  1. [27]
    I am not persuaded that there is a reasonably arguable case of error as raised by the proposed appeal ground 3. It would be futile to reinstate the ground of appeal in circumstances where the ground is without merit.
  2. [28]
    The application to reinstate ground of appeal 3 is refused.

Grounds of appeal 1 and 2

  1. [29]
    The Monsours assert error by the learned member in permitting Darvill to amend its counter-application at the hearing to include a claim for recovery in respect of non-compliant variations.
  2. [30]
    As has been earlier noted, the building contract between the parties was governed by the provisions of the (repealed) Domestic Building Contract Act 2000 (Qld). The DBCA imposed obligations on a building contractor in respect of contractual variations principally relating to the documentation of such variations in writing, and the consent of the owner, before variation work was undertaken.[4]
  3. [31]
    In the absence of compliance by a building contractor with the requirements of the DBCA in relation to a variation, the building contractor may only recover an amount for the variation with the approval of QCAT on application by the building contractor.[5]
  4. [32]
    The Tribunal may approve the recovery of an amount for a variation only if satisfied that there were exceptional circumstances to warrant conferring an entitlement on the building contractor for recovery of an amount for the variation, or the building contractor would suffer unreasonable hardship if not permitted such recovery. In addition, the Tribunal must be satisfied that it would not be unfair to the owner for the building contractor to recover an amount.[6]
  5. [33]
    At the hearing below the Monsours represented themselves. Darvill was represented by counsel. Four days prior to the hearing, Darvill’s legal representatives provided the Monsours and the Tribunal with a ‘List of Issues’ document. In that document, Darvill identified that it would be seeking an order that the Monsours pay an ‘amount of $159,052,71 for unpaid variations pursuant to Section 84(2) of the Domestic Building Contracts Act 2000 QLD and $42,961.92 for lost profit on the remaining contract sum.’
  6. [34]
    At the commencement of the hearing counsel for Darvill sought leave to amend the counter-application to include a claim pursuant to s 84(2) for the recovery of amounts for variations which did not comply with the DBCA. The Monsours opposed the application to amend. The learned member explained to the Monsours the relevant provisions of the DBCA and the effect of the provisions. Dr Monsour maintained his objection to the proposed amendment. In allowing the amendment, the learned member gave the following reasons:

All right. Look, I’m going to grant leave, it’s a statutory provision and the tribunal’s remit is to come to a decision based on the appropriate material, it’s – I don’t think there there’s any disadvantage to it insofar as there will be any surprise, according to Mr Sheahan, on the evidence which either will or will not support the provision in the Act. So I’m going to grant leave for the amendment.[7]

  1. [35]
    The Monsours say that the learned member erred in permitting the amendment by allowing the amendment late in the proceeding without applying the principles in Aon Risk Services Australia Ltd v Australian National University[8] and in failing to afford the Monsours procedural fairness.
  2. [36]
    It is not controversial that Darvill had, from early in the proceeding below, maintained a counterclaim for variations not paid by the Monsours. What Darvill had not done was to articulate a claim for recovery under s 84(2) of the DBCA in respect of non-compliant variations. As has been earlier noted, under the provisions of the DBCA the Tribunal may approve the recovery of an amount for a non-compliant variation if:
    1. either of the following applies:
      1. there are exceptional circumstances to warrant recovery; or
      2. the building contractor would suffer unreasonable hardship if not permitted to recover; and
    2. it would not be unfair to the building owner for the building contractor to recover an amount.
  3. [37]
    Darvill relied on ‘exceptional circumstances’, not ‘unreasonable hardship’.
  4. [38]
    In Allaro Homes Cairns Pty Ltd v O'Reilly & Anor[9] the Court of Appeal considered the meaning of ‘exceptional circumstances’:

The phrase “exceptional circumstances” is not defined. It is found in an act whose purpose or object is to achieve a reasonable balance between the interests of building contractors and building owners and to maintain appropriate standards of conduct in the industry. It may be vague but the matters that might be considered relevant to such an inquiry will be indicated by the particular way in which the Act was not complied with and the circumstances particular to the dispute. In this Act, it directs attention to those circumstances which are exceptional and warrant conferring upon the building contractor an entitlement to recovery for the variation which its conduct, by failing to meet the obligations imposed by the statute, deprived it. It would therefore suggest, in the context of this dispute, attention might be directed to the circumstances that applied that prevented compliance or explained non-compliance with s 80(2)(e), which required the building contractor to state the change of the contract price because of the variation or how the change in price might be worked out. Circumstances such as an unanticipated event requiring work to be done urgently might, for example, afford an explanation and constitute an “exceptional circumstance”. But this comment should not be regarded as exhaustive, the term is broad and it is not desirable to attempt an exhaustive statement of what might be in any given dispute an exceptional circumstance.[10]

  1. [39]
    In Mann v Paterson Constructions Pty Ltd[11] the High Court considered the analogue provision of s 84 found in the Domestic Building Contracts Act 1995 (Vic):

The apparent purpose and legislative effect of these provisions is that a builder shall not be permitted to recover any money in respect of owner-initiated variations (other than for prime cost items and by way of provisional sums) except in accordance with these provisions. As such, they function as protective provisions, designed to prevent the kinds of problems likely to arise where domestic building contract variations are dealt with informally, as by oral request by an owner for a variation and compliance by the builder without first agreeing with the owner on the price and other consequences of giving effect to the variation; in particular, to avoid the surprises and consequent disputation likely to arise where plans and specifications under a major domestic building contract are varied without the degree of formality mandated by s 38(1) and (2) or (3). Hence, subject to only one exception, they prohibit a builder recovering any money in respect of owner-initiated variations unless the required degree of formality has been observed. The one exception reflects a legislative recognition that there can sometimes be instances of non-compliance which are in themselves exceptional or would result in the builder suffering exceptional hardship and in which it is not unfair to require the owner to pay a reasonable recompense for the variation, namely, the cost of the variation and a reasonable profit margin in accordance with s 38(7).[12]

  1. [40]
    The amendment (underlined) to the counter-application was in the following terms:

2. That the Applicants pay the Respondent the amount of $159,052.71 for unpaid variations pursuant to Section 84(2) of the Domestic Building Contracts Act 2000 QLD and $42,961.92 for loss of profit on remaining Contract Sum.

  1. [41]
    Counsel for Darvill described the amendment as just a reference to the particular section number.[13] It would be wrong however to characterise the amended counter-application by Darvill for recovery under s 84(2) as a mere formality. The section only permitted Darvill to recover for non-compliant variations if it was able to establish either exceptional circumstances or unreasonable hardship and recovery would not be unfair to the Monsours.
  2. [42]
    The decision by the learned member to permit the amendment was made on the first day of the hearing. Being a decision, not the final decision in the proceeding, leave to appeal is required. An application for leave to appeal the learned member’s decision was required to be filed within 28 days of the date of the decision.[14] That time may be extended by the Tribunal.[15]
  3. [43]
    The decision by the learned member was made on 27 October 2020. The Monsours filed the application for leave to appeal or appeal on 2 September 2022. Ground of appeal 1 was first raised in the Monsours written appeal submissions filed 21 November 2022. On 9 December 2022 the Monsours filed an application seeking an extension of time to file an amended application for leave to appeal or appeal until 9 December 2022 to reflect the grounds of appeal in the submissions. On 3 May 2023 the Appeal Tribunal granted the Monsours leave to amend the application for leave to appeal or appeal in accordance with the 9 December application.
  4. [44]
    In giving leave to the Monsours to amend the application for leave to appeal or appeal to include, inter alia, appeal ground 1, the Appeal Tribunal did not consider nor determine the necessity of extending time to enable the ground to be pursued. In order to rely upon appeal ground 1 the Monsours must obtain an extension of time and, if time is extended, leave to appeal the interlocutory decision permitting the amendment to the counter-application.
  5. [45]
    By s 61(1)(b) of the QCAT Act, the tribunal may, by order, extend or shorten a time fixed by the QCAT Act, an enabling Act or the rules. By s 61(3) the tribunal can not extend or shorten a time or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
  6. [46]
    In Harper Property Builders Pty Ltd v Queensland Building and Construction Commission[16] the Appeal Tribunal explained the relevant considerations when dealing with an application to extend time under s 61 of the QCAT Act:

[26]  Whilst recognising that the discretion to extend time is unfettered (except to the extent that s 61 of the QCAT Act precludes such an extension when it would cause prejudice or detriment, that could not be remedied by an appropriate order for costs or damages), the following matters have been recognised in the above cases as particularly relevant considerations in such exercises:

  1. the length of the delay;
  2. the adequacy of explanation for the delay;
  3. the merits of the proceeding sought to be litigated;
  4. prejudice to others; and
  5. the interests of justice (sometimes expressed as ‘general considerations of fairness’).

[27] In the context of extending time for an appeal or review, commonly the central question addressed is whether there is any reasonable prospect of success in the proposed appeal.

  1. [47]
    The length of delay in respect of appeal ground 1 is significant, almost two years. No attempt has been made by the Monsours to explain the delay. It may be accepted that as self represented litigants the Monsours would not have possessed the level of skill in conducting the proceeding as might be expected from a legal practitioner. Against this, it is noted that there is no suggestion the Monsours were without the financial resources to engage lawyers. Rather they chose to represent themselves. While the QCAT Act recognises that, in most cases, parties should represent themselves unless the interests of justice require otherwise, in the proceeding below the parties were given leave to be legally represented from a very early stage.[17] These factors tell against extending time.
  2. [48]
    I will address the merit of the ground as part of the interests of justice considerations.
  3. [49]
    There is obvious prejudice to Darvill if time is extended. This factor tells against extending time.
  4. [50]
    The interests of justice considerations are, in the final analysis, decisive. These considerations are, in part, a reflection of the matters referred to in s 61(3) of the QCAT Act. In bringing the amended counter-application Darvill was required to satisfy the Tribunal below that it was an appropriate case in which to permit the recovery of amounts for non-compliant variations. This burden was, to a large extent, evidentiary. Darvill relied upon exceptional circumstances warranting recovery. The task of the Tribunal was to make factual findings about, inter alia, the circumstances in which the variation works, and the building works generally, were carried out and to determine whether, on the basis of those factual findings, ‘exceptional circumstances’ had been established.
  5. [51]
    In accordance with tribunal directions, the parties filed statements of evidence in the proceeding below. It is apparent from Darvill’s written evidence that the builder considered the demands of the Monsours in the course of the build became increasingly difficult to manage. Darvill’s evidence was that the Monsours, and particularly Dr Monsour, constantly changed their minds about the scope of works, interfered with the activities of Darvill and its contractors including giving directives to building contractors on site, and placed unreasonable demands on the builder. This was of course the evidence upon which Darvill relied to support its application for recovery of amounts for non-compliant variations on the basis of exceptional circumstances.
  6. [52]
    Accordingly, the evidence upon which Darvill intended to rely in support of the claim pursuant to s 84(2) had, subject to any oral evidence given at the hearing, been filed by the commencement of the hearing. It is unclear from the Monsours’ submissions what they say was the further evidence they would, or could, have filed had the application to amend the counter-application been made in a more timely way. As has been observed, the onus was on Darvill to establish an entitlement to recover amounts for the non-compliant variations. This required Darvall to lead evidence of the circumstances of the build which Darvill submitted were exceptional within the meaning of s 84(4) of the DBCA.
  7. [53]
    A number of options presented themselves to the Monsours when the application to amend the counter-application was allowed. The Monsours could have sought an adjournment of the hearing. This would have permitted them time to consider the nature and effect of the amendment and whether they required the opportunity to, inter alia, file further evidence. The Monsours say that the possibility of an adjournment was not raised with them by the member. Doubt must attend any submission that the Monsours would have sought an adjournment. On another occasion during the hearing the prospect of an adjournment was raised to which Dr Monsour responded that he did not want the matter adjourned, that the dispute had been an emotional strain on he and his wife and that he would ‘would rather get the matter over and done with.’[18]
  8. [54]
    Alternatively, the Monsours could have flagged an appeal of the decision and sought a stay of the proceeding until the appeal was determined. Or the Monsours could have sought to continue subject to their being given the opportunity to lead further evidence about ‘exceptional circumstances’. Instead, the Monsours elected to continue the proceeding without further order or direction.
  9. [55]
    The hearing lasted for a total of eight days. The first four days of the hearing took place in October 2020.  Most of the four days was taken up with Darvill’s counsel’s cross-examination of Dr Monsour during which Dr Monsour was questioned about each of the variation claims.
  10. [56]
    The hearing resumed in February 2021 and continued for another two days. On the first day of the resumed hearing Darvill’s quantity surveyor gave evidence and Mr Darvill gave his evidence in chief. At the commencement of the second day, the following exchange took place:

MEMBER: All right. Before Mr Darvill resumes, I have given some consideration to your amended pleading. You introduced a – an amendment to incorporate a potential claim under section 84 of the Domestic Building Contracts Act.

…

MEMBER: Dr Monsour is not represented by legal counsel. Building matters are difficult. It doesn’t matter how intelligent you are, they are at a complete disadvantage, I say, unless the Tribunal abides by a directive in section 29 I think it is of the QCAT Act where a member must ensure all parties are aware of the implications and ramifications of matters presented at the Tribunal. I’m not going to say more than that – I’m going to hand up a copy of the Domestic Building Contracts Act section 84.

…

MEMBER: I’ll provide it to both parties. I would suggest, Dr Monsour and Mrs Monsour, you note section 84 because the builder potentially has a claim under 84(2) in respect of exceptional circumstances. The only other thing I’ll say is this: it seems to me that there has only been mention of the provisions of the contract, but generally most construction cases turn and rely upon the Act for legislation, which takes precedence. It matches in most parts the contract, but you will see there that there is an exception. That’s all I intend to say. But I would suggest you give some thought to that in the examination you’re going to commence now – the cross examination in respect of Mr Darvill.

  1. [57]
    The cross examination of Mr Darvill then commenced. There was no indication given by Dr Monsour that he had not understood what the member said, nor did Dr Monsour request an adjournment to consider the matters raised by the member before commencing the cross-examination. It is important to bear in mind that almost four months had passed since the commencement of the hearing. There is no indication that the Monsours took any steps during that period to further consider or evaluate their position regarding the amendment to the counter-application, or to educate themselves about the provisions, and application, of the DBCA.
  2. [58]
    The cross-examination of Mr Darvill took up most of the second day of the resumed hearing. In the course of the cross-examination, the following exchange took place:

DR MONSOUR: …. Do you agree that these variations are not legal as stipulated by the contract because of those?[19]

MEMBER: Well, let’s not say “not legal, as stipulated by the contract”, because I did mention to you that section 84 has been added as a claim by the builder of the domestic building contract. I gave you a copy of the provision.

DR MONSOUR: Yes.

  1. [59]
    It is apparent from the above passage that the learned member was attempting to guide Dr Monsour to the amended counter-application and the provisions of the DBCA. There is no indication from the transcript that Dr Monsour did not understand the learned member. To the contrary, Dr Monsour’s spoken affirmation appears to confirm that he understood what the learned member was trying to do.
  2. [60]
    After the second day of the resumed hearing, there was a further interval and the hearing continued for a final two days in June 2021. The two days were taken up largely with Dr Monsour’s cross examination of Mr Darvill and Mr Gannon, who was the builder’s supervisor and site foreman on the building site, relating to Darvill’s claims for variation works.
  3. [61]
    On the first day of the resumed hearing the following exchange took place during Dr Monsour’s cross-examination of Mr Darvill:

MEMBER: I think that it is appropriate and I wouldn’t do this if it was you represented by competent counsel but there was an amendment made to the defendant’s pleadings. I don’t know if you have pleadings but there is a claim that whilst variations do not comply with either the Domestic Building Contracts Act or the contract, there’s a claim that exceptional circumstances applies and that’s the basis upon which these variations are claimed from you, and I did remind you to frame any questions accordingly.

DR MONSOUR: Well, one would think, Member Howe, that nine months afterwards is an extreme amount of time.

MEMBER: And I’m, simply, drawing this to your attention.

DR MONSOUR: All right.

  1. [62]
    Again, there is nothing from the exchange to indicate that Dr Monsour did not understand the importance of the application of the provisions of the DBCA in relation to the claim by the builder to recover amounts for variations.
  2. [63]
    What is however clear from the transcript is that Dr Monsour took the time to cross-examine Mr Darvill in great detail in relation to the variation claims including the circumstances in which the claims were raised by the builder.
  3. [64]
    On the final day of the hearing the following exchange took place:

MEMBER: … What we’re talking about, Dr Monsour, is the – I’ll show you this. It’s easiest [indistinct] It’s the – I have mentioned on a number of occasions about the builder’s case has been expanded, and I’ve given leave to include a claim for exceptional circumstances in relation to a claim for payment – unpaid variations which do not comply with the Act or the contract, That’s what that is.

DR MONSOUR: Member Howe, I just want to clarify something.

MEMBER: Yes.

DR MONSOUR: So even though, on contract, it sets out the conditions of variations, etcetera

MEMBER: Yes.

DR MONSOUR: So are you indicating that this overrides the contract?

MEMBER: It could. They can succeed. I did warn you about this, and if you look at the repealed Domestic Building Contracts Act – repealed – it still applies to contracts entered into prior to June 30, 2015, I think it is. And those were provisions which have been set aside now, But, that said, if there were exceptional circumstances, it it’s established that the builder should be paid, it can be paid. All right. What we might do – have you had a chance to look at them?

DR MONSOUR: What?

MEMBER: Those provisions in the Domestic Building Contracts Act?

DR MONSOUR: No.

MEMBER: What we might do, we might print out – it’s not a long Act. We might print out the Domestic Building Contracts Act repealed – we can do that can’t we? And we’ll provide that to Dr Monsour. I’ve got an obligation under the QCAT Act… to make sure both parties understand the issues.

  1. [65]
    Before the conclusion of the final day of the hearing the learned member again raised the issue of Darvill’s claim to recover amounts for non-compliant variations pursuant to s 84 of the DBCA. The learned member explained to the Monsours that their final written submissions should address the builder’s amended counter-application.
  2. [66]
    The parties filed written closing submissions. Darvill’s submissions addressed the application of s 84 of the DBCA and the relevant evidence in detail.[20] The Monsours filed detailed response submissions.[21]
  3. [67]
    It may be accepted on the basis of the foregoing that the Monsours elected to proceed with the hearing below, over eight days, notwithstanding the late amendment to the counter-application. At various junctures, the learned member sought to remind the Monsours of the amended counter-application and the implications of the amendment.  The Monsours had ample opportunity over the course of the hearing to take such steps as they considered necessary to protect their interests if they considered they had been disadvantaged by the late amendment to the counter-application. They could have sought an adjournment; they could have sought legal advice; they could have sought leave to file further evidence in chief. The Monsours evidence concluded at the end of the fourth day. Four months later the hearing resumed. At the commencement of the resumed hearing the learned member again raised with the Monsours the amendment to the counter-application and the application of s 84 of the DBCA. At this juncture it was open to the Monsours to apply to reopen their case and adduce further evidence in chief relevant to the amended counter-application.
  4. [68]
    It is no answer for the Monsours to say that they were self represented. The parties had been given leave to be legally represented early in the proceeding below. There is nothing to suggest that the Monsours could not afford legal representation. Indeed they were legally represented for much of the appeal proceeding. It is clear from the transcript that Dr Monsour was intelligent, articulate and organised. Some passages from the transcript lead one to suspect however that Dr Monsour may have somewhat overestimated his abilities as an advocate in what were very complex legal proceedings.
  5. [69]
    It would be unfair, in these appeal proceedings, to permit the Monsours to raise a ground of appeal that should have been addressed by them during the lengthy hearing below. The Monsours were clearly intelligent people and approached the conduct of the proceeding below in a sophisticated way. Had they engaged lawyers, the course of events may have been different. The Monsours elected to represent themselves in the proceeding as they were entitled to do. However they must bear the consequences of that decision. The consequences of the actions of the Monsours for Darvill are obvious. The builder conducted its case on the basis that it was entitled to pursue the claim to recover amounts for variations pursuant to s 84 of the DBCA. It would be unfair to the builder for the Monsours to now raise a ground of appeal relating to a decision made at the very commencement of the hearing below.
  6. [70]
    The Monsours place considerable reliance in their appeal submissions on the decision of the High Court in Aon Risk Services v Australian National University.[22] The significance of the decision in Aon is that the presiding decision maker must assess whether an application to amend is reasonable in the context of judicial case management.[23] Without specifically referring to Aon the learned member addressed the issue of prejudice to the Monsours in allowing the amendment in stating that there would be no surprise, the parties already having filed their statements of evidence, and whether the claim pursuant to s 84 of the DBCA would be successful would turn on the evidence. It is implicit in the reasons that the learned member was satisfied that the amendment was for the just and expeditious resolution of issues in the proceedings rather than an amendment raising new claims and new issues.[24] It is also implicit from the reasons that the learned member’s discretion was guided by the objects of the QCAT Act which include dealing with matters in a way that is accessible, fair, just, economical, informal and quick.[25] And it is relevant to note that the Monsours did not seek an adjournment and the question of wasted resources did not arise.
  7. [71]
    The application to extend time to rely upon ground of appeal 1 is refused. I would add that even had the application to extend time been allowed, I would have refused leave to appeal for the reasons set out.
  8. [72]
    Ground of appeal 2 is that the learned member erred in law in failing to give adequate reasons for allowing the amendment to the counter-application. This ground of appeal also arises out of an interlocutory decision.
  9. [73]
    In King & Ors v Australian Securities and Investments Commission[26] the Queensland Court of Appeal stated:

[40]  Reasons do not need to be lengthy and elaborate. There is no need to refer to all of the evidence led in the proceeding. Relevant evidence should be referred to, but not necessarily in detail. It is not incumbent upon a judge to deal with every argument and issue that might arise in the course of a case, but where an argument is substantial or an issue is significant, reasons for the rejection of the argument or the resolution of the issue should be given.

[41] Inadequacy of reasons does not necessarily amount to an appellable error. An appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice. An appellable error arising from inadequate reasons does not necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (for example, where only one conclusion is reasonably open on the available evidence) it may itself decide the matter. (footnotes omitted)

  1. [74]
    Not every judicial decision attracts a duty to give reasons[27] however reasons are expected for final decisions and important interlocutory rulings.[28] The duty to give reasons does not apply to every interlocutory decision. There is a difference between an important interlocutory decision such as summary judgment, and an interlocutory application involving practice and procedure such as a strike out application. The former, being an important interlocutory decision, would attract similar requirements for reasons as would be the case in a final hearing whereas in respect of the latter something less might be required in the circumstances of the case.[29] The decision to permit the amendment to the counter-application was a matter of practice and procedure.  Consequently, the learned member was not required to provide the level of detail in the reasons  as might have been required if the rights of the parties were being finally determined.
  2. [75]
    It is apparent from the reasons that the learned member understood the counter-application as originally framed and the nature and effect of the proposed amendment. The learned member acknowledged that whether the builder was able to establish exceptional circumstances would turn on factual findings and whether those findings satisfied the requirements of the DBCA. The learned member acknowledged that the parties had filed their statements of evidence which would be relevant to the determination of the application by the builder pursuant to s 84 of the DBCA. The reasons reveal that on this basis the amendment was allowed.
  3. [76]
    In the circumstances, the reasons were adequate.  Appeal ground 2 has no reasonable prospect of success. It follows that the application to extend time to apply for leave to appeal is refused.

Ground of appeal 4

  1. [77]
    Appeal ground 4 is that the Tribunal erred in law in finding that there were exceptional circumstances pursuant to s 84 of the DBCA with respect to the variations.
  2. [78]
    During the course of the appeal hearing, the Monsours applied to amend the ground of appeal to assert an error of mixed law and fact. The amendment was opposed by Darvill. I will address the application to amend later in these reasons.
  3. [79]
    The learned member addressed the issue of exceptional circumstances under the following headings:
    1. Constant changes to the works requested by Dr Monsour;
    2. Interference by the Monsours with the work done on site;
    3. Assurances by Dr Monsour that the owners would pay for the changes to the works;
    4. Failure by Darvill to document variations.
  4. [80]
    The learned member found that that there were constant and numerous changes made to the scope of work of the contract, some of which were the basis of variation claims and others which were not. The learned member found that the Monsours were overwhelmingly responsible for the changes.[30]
  5. [81]
    The learned member found that Dr Monsour’s constant checking of the works and his undertaking measuring and fault finding resulted in the work taking far longer than necessary and made the work far more difficult than would otherwise have been the case. The learned member found that the Monsours directed workers and subcontractors on site without Darvill’s permission resulting in additional problems for the builder. The learned member found that the interference by the Monsours, and particularly Dr Monsour, caused the worksite to become dysfunctional.[31]
  6. [82]
    The learned member referred to the builder’s unchallenged evidence that the problem of the constant changes being made by the Monsours causing a cost blow out had been raised with the Monsours on six occasions and Dr Monsour’s response had been that this (that is, the increased cost) was ‘okay’. The learned member also referred to the evidence of Mr Darvill that it was only late in the build he realised the earlier assurances by the Monsours regarding the increased costs could not be relied upon.[32]
  7. [83]
    The learned member accepted Darvill’s submission that constant changes made by the Monsours to the builder’s scope of work on a daily and occasionally more frequent basis, meant documenting such changes would have been very difficult if not impossible. The learned member found that the confusion caused by constant changes, delay, unhelpful oversight by the Monsours and inability to coordinate the scheduling of various trades on site, both the builder’s and those engaged directly by the Monsours, added a further layer of complexity to all tasks, including associated with variations and the obligation to appropriately document variations.[33]
  8. [84]
    The learned member stated:

[275]  In light of the foregoing, I find that there are exceptional circumstances to warrant conferring an entitlement on the builder to recover money for variations to the scope of work of the contract.

[276]  I find allowing such would not be unfair to the Monsours. The Monsours were at fault in repudiating the contract and their conduct during construction a primary cause of the difficulties that beset the builder. The Monsours have had the benefit of the variation work and there is no suggestion of any financial hardship on their part if ordered to pay. The Monsours assured the builder the changes would be paid for.

  1. [85]
    As is apparent from the foregoing, the learned member made a number of factual findings relevant to the progress of the build. None of these factual findings is appealed.
  2. [86]
    Whether facts as found fall within a statutory description or satisfy statutory criteria is a question of law.[34] Where words are used in a statute according to their common understanding, whether the facts as found fall within these words is a question of fact.[35] The words ‘exceptional circumstances’ found in s 84(4)(a)(i) of the DBCA cannot be construed according to ordinary usage. The words must be read together and in the context of s 84 and the DBCA as a whole.[36]  As such, whether the facts as found by the Tribunal below fall within the meaning of exceptional circumstances in s 84 is a question of law. Whether it was open to the learned member to make the relevant factual findings is a question of fact or it may be a question of law if it is said that there was no evidence upon which a particular finding was made. The Monsours do not make a ‘no evidence’ submission.
  3. [87]
    It is not entirely clear what the Monsours say is the error of mixed law and fact. The appeal submissions are not particularly illuminating, referring to ‘… an error of law or fact in finding that there were exceptional circumstances.’ 
  4. [88]
    The Appeal Tribunal must conduct review of the evidence given at first instance and of the tribunal’s reasons for judgment to determine whether there has been an error of fact or law.[37] The Appeal Tribunal will not interfere with the primary tribunal’s findings unless they are "glaringly improbable" or "contrary to compelling inferences."[38]
  5. [89]
    The Monsours say that the learned member had no expert evidence with respect to the variations the subject of the finding of exceptional circumstances. This submission is directed at what the Monsours say was the absence of evidence about the value of the variations. It is unclear from the Monsours’ submissions how it is said the valuation of the variations was relevant to the determination of the question of whether there were exceptional circumstances permitting recovery by Darvill for the non-compliant variations. It is evident from the reasons that the value of the variations formed no part of the learned member’s finding of exceptional circumstances. The relevant circumstances were those that prevented compliance with the DBCA or explained non-compliance with the DBCA, not the value of the variation works.
  6. [90]
    The Monsours say that the finding of ‘exceptional circumstances’ was based in part on contested and untested hearsay from witnesses who were not made available for cross-examination. The submissions fail to address the particular evidence and the specific findings. In making the finding that there existed ‘exceptional circumstances’ the learned member referred to the evidence of Mr Darvill, Mr Gannon, Mr Paikin, and Mr Weeks all of whom gave evidence at the hearing and were cross-examined by the Monsours. The learned member also referred to statements made by Darvill’s employees and subcontractors about the conduct of the Monsours during the build, noting that the witnesses were not available for cross-examination and that while this reduced the weight to be given to the evidence it did not entirely discount the statements from consideration.[39]  Ultimately, it was a matter for the learned member to afford weight to the evidence. This submission will be addressed later in these reasons when dealing with appeal ground 5.
  7. [91]
    The Monsours say that some of the admissible evidence regarding ‘exceptional circumstances’ was given by Darvill’s witnesses whose evidence was given in chief thus depriving the Monsours of the opportunity to consider the evidence and adduce evidence to rebut it. Again, the submission is lacking in detail by failing to identify the particular evidence. Nor do the submissions address what additional evidence the Monsours would or could have adduced. Proceeding on the basis that the Monsours’ appeal submission relates to the evidence referred to in the reasons which was referenced to the transcript:
    1. Mr Darvill gave evidence in chief: that Dr Monsour sent emails regarding electrical work; about changes requested by the Monsours to the engineering of steel beams; about weekly meetings with Dr Monsour; about the Monsours leaving notes about required changes around the building site; that Dr Monsour had turned subcontractors away from the site;
    2. Mr Gannon gave evidence in chief that Dr Monsour had regularly provided to him drawings, notes and emails regarding changes to the works;
    3. Mr Gannon gave evidence in chief that Dr Monsour’s behaviour was, on occasion, aggressive and that after a certain point in time he did not feel comfortable being on site;
    4. Mr Paikin gave evidence in chief that, on occasion, Dr Monsour’s behaviour was aggressive and that he had referred to as having been a boxer;
    5. Mr Darvill gave evidence in chief that he felt threatened, intimated or harassed by Dr Monsour;
    6. Mr Darvill gave evidence in chief that he told Dr Monsour that the building costs were being ‘blown out’ and Dr Monsour’s initial response was that it was okay and that they just wanted a good job;
    7. Mr Darvill gave evidence in chief that at a certain point in time he realised he could not rely upon Dr Monsour’s prior assurances regarding payment for changes in the works.
  8. [92]
    Mr Darvill’s statement of evidence[40] referred extensively to the difficulties that he, his employees and contractors experienced dealing with the constant changes to the works sought by the Monsours. The statement of evidence referred to regular meetings with Dr Monsour, the presence of notes left around the worksite by Dr Monsour, and the increase in costs, including the statement by Dr Monsour that ‘we just want a good job’. Mr Darvill’s statement of evidence also referred to Dr Monsour’s behaviour which he described as threatening and intimidating.
  9. [93]
    It is readily apparent from the statement of evidence of Mr Darvill that none of Mr Darvill’s oral evidence in chief relevant to ‘exceptional circumstances’ should, or could, have taken the Monsours by surprise. Furthermore, the Monsours had the opportunity before the hearing to adduce written evidence in response.
  10. [94]
    A statement of evidence by Mr Gannon had been filed.[41] Mr Gannon referred in his statement to ‘countless changes (to the works) on a daily basis’ by the Monsours and to various difficulties encountered on the site as a result of the Monsours’ interference with the works and contractors. While Mr Gannon’s statement of evidence did not refer to Dr Monsour’s behaviour as being aggressive, it could hardly be suggested that Mr Gannon’s evidence in chief at the hearing regarding this issue, of itself, materially disadvantaged the Monsours, particularly given Mr Darvill’s evidence.
  11. [95]
    A statement of evidence by Mr Paikin had also been filed prior to the hearing in which Mr Paikin referred to Dr Monsour’s ‘angry outbursts’ and his threatening physical interactions if required, noting his history as a boxer. Again, the evidence in chief by Mr Paikin given at the hearing could not have taken the Monsours by surprise who had ample opportunity before the hearing to adduce evidence in response.
  12. [96]
    The Monsours say that the learned member erred in law in finding exceptional circumstances without taking into consideration the complete lack of attempts by Darvill to comply with the requirements of the DBCA. The Monsours say that Mr Darvill’s evidence at the hearing was that when attempts to move to a cost plus contract were unsuccessful, Mr Darvill knew that he was required to be more diligent with documenting changes to the works.
  13. [97]
    The learned member noted in the reasons that there were 37 contractual variations, none of which complied with the requirements of the DBCA. The learned member referred to the relevant provisions of the DBCA and particularly s 84. The learned member accepted the evidence of Mr Darvill that the Monsours were responsible for delays in the build and changes to the scope of works, that they constantly interfered with the works and gave unauthorised directions to workers. The learned member found that there were constant and numerous changes to the scope of works and that the Monsours were overwhelmingly responsible for the changes. The learned member referred to the evidence of Mr Darvill that the Monsours maintained a constant vigil looking for miscalculations or inaccuracies of measurement and constantly interfered with, and micro-managed, the work done on site. The learned member found that Dr Monsour’s constant checking and measuring and fault finding resulted in the work taking far longer and more difficult than would otherwise have been the case. The learned member was satisfied that the Monsours directed works and sub-contractors on site and their interference caused the worksite to become dysfunctional. The learned member found that the constant changes made by the Monsours to the scope of works on a daily if not more frequent basis meant documenting such changes would have been difficult if not impossible. The learned member found that confusion caused by constant changes, delay, unhelpful oversight by the Monsours and inability to coordinate the scheduling of various trades on site, both the builder’s and those engaged directly by the Monsours, added a further layer of complexity to all tasks, including that associated with variations and the obligation to appropriately document variations. The learned member was satisfied that any attempt by Darvill to document agreement to variations would have added further significant delay to the completion of the work. None of these factual findings is appealed.
  14. [98]
    The thrust of the Monsours’ appeal submission is that the learned member erred by not considering each variation and determining whether exceptional circumstances had been made out.  The purposes of the DBCA are to achieve a reasonable balance between the interests of building contractors and building owners and to maintain appropriate standards of conduct in the building industry.[42] Section 84 of the DBCA is legislative recognition that circumstances may arise which would justify the recovery by a building contractor of an amount for a non-compliant variation. The circumstances are, however, required to be exceptional. This requires an examination of the particular facts of a matter and must be determined on a case by case basis. There is nothing in s 84 that mandates the approach argued for by the Monsours. The learned member was entitled to view the chronology of events relating to the build in totality. Indeed, it would not have been feasible to do otherwise in light of the evidence below. Similarly, the learned member was entitled to approach the determination of whether there were exceptional circumstances by reference to the non-compliant variations as whole. This is particularly so given the finding by the learned member that the constant changes made by the Monsours to the scope of works meant documenting such changes would have been difficult if not impossible. It is of note that this finding is also not appealed. The approach taken by the learned member was consistent with the balancing of interests of the builder and homeowners required by the DBCA.
  15. [99]
    This is not a case such as Poiner v Quirk[43] where there was no assertion by the builder that there were exceptional circumstances. To the contrary, the builder led extensive evidence about the exceptional circumstances pertaining to the build. As the Court of Appeal noted in Allaro Homes the term exceptional circumstances is a broad one. In light of the factual findings by the learned member to which reference has been made, and which findings are not appealed, it was open to the learned member to conclude that exceptional circumstances had been made out by the builder.
  16. [100]
    In circumstances where the many factual findings to which reference has been made have not been the subject of appeal, the application to amend the ground of appeal to assert an error of mixed law and fact is refused.
  17. [101]
    Ground of appeal 4 is not made out.

Ground of appeal 5

  1. [102]
    The Monsours say that they were denied procedural fairness or natural justice as a result of:
    1. The Tribunal allowing the respondent to adduce new evidence contrary to Tribunal directions made in 2019;
    2. The Tribunal allowing the respondent to adduce evidence in the form of a new version of the respondent’s quantity surveyor report;
    3. Eleven of the respondent’s witnesses were not made available for cross examination.
  2. [103]
    Grounds of appeal 5(a) and 5(b) arise from interlocutory decisions made in the course of the hearing. It follows, for the reasons set out in respect of appeal grounds 1 and 2, that the application for leave to appeal was filed out of time. In approaching these grounds, the same considerations apply in relation to extending time to seek leave to appeal as were considered when dealing with appeal grounds 1 and 2.
  3. [104]
    At the outset, it should be noted that the delay in seeking leave to appeal the interlocutory decisions is lengthy and not adequately explained by the Monsours. These factors tell against extending time to seek leave to appeal in respect of grounds 5(a) and 5(b). 

New evidence

  1. [105]
    The Monsours say that Darvill was permitted to introduce new factual evidence during the hearing to support its exceptional circumstances argument. The Monsours refer to the oral evidence in chief given by Mr Darvill, Mr Paikin, Mr Gannon and Mr Weeks. The Monsours also say that Darvill was permitted to tender further documentary evidence.
  2. [106]
    The further evidence in chief of Mr Darvill, Mr Paikin and Mr Gannon has been addressed in dealing with appeal ground 4. I have concluded that the oral evidence in chief by these witnesses should not have taken the Monsours by surprise.
  3. [107]
    A statement of evidence by Mr Weeks was filed before the hearing. The evidence of Mr Weeks was that on many occasions the works were undertaken in accordance with the plans only to be subsequently changed by the Monsours and that the Monsours would liaise directly with Mr Weeks’ staff to make changes to the works without the knowledge of Mr Weeks or Mr Darvill. Mr Weeks also gave evidence that as a result of issues with the Monsours, several of his staff refused to work on the site. Mr Weeks gave evidence on the last day of the hearing. Mr Weeks’ relatively brief oral evidence in chief was consistent with, albeit more detailed than, his written statement.  As with the other witnesses referred to in the Monsours’ submissions, the oral evidence in chief of Mr Weeks was consistent with his written evidence.
  4. [108]
    Ground of appeal 5(a) is without merit. The application to extend time to seek leave to appeal in respect of this ground is refused.

Quantity surveyor’s report

  1. [109]
    Mr Ray was the quantity surveyor engaged by Darvill to provide expert evidence about the value of the work undertaken by the builder. At the commencement of day 5 of the hearing, counsel for Darvill sought to tender a further report by Mr Ray. Counsel explained that the amended report was prepared by Mr Ray following his review of the evidence and that he concluded the value of the work completed by Darvall was in fact less than he had opined in his original report and that his revised conclusions favoured the Monsours.  After an adjournment to permit the Monsours time to consider the report, Dr Monsour advised the learned member that there was no objection to the report going into evidence. The complaint by the Monsours in this appeal appears to be confined to the consequences of permitting the report into evidence as it related their own expert, Mr Davies. To understand this submission, one must return to the first day of the hearing.
  2. [110]
    On day 1, the learned member raised with the parties the prospect of the expert quantity surveyors attending a conclave. An experts’ conclave is generally held in proceedings where there is more than one expert in a particular area of expertise. At the conclave, with the assistance of a tribunal member, the experts discuss their respective opinions, endeavour to reach agreement where possible and reduce into a joint report those matters upon which agreement has been reached. The joint report usually also identifies areas of disagreement and further investigations or enquiries recommended to be undertaken. 
  3. [111]
    It was proposed by the learned member that the conclave take place on the second day of the hearing. As events transpired, the Monsours’ expert Mr Davies declined to attend the conclave on the basis that he was not adequately prepared.[44] Mr Davies and Mr Ray each subsequently gave separate evidence.
  4. [112]
    In their appeal submissions the Monsours say that the provision of the further report by Mr Ray created an issue for Mr Davies who stated that he needed more time to review the report before participating in a conclave. The Monsours’ submission erroneously conflates two separate reports by Mr Ray.
  5. [113]
    Mr Ray’s original report was filed one week prior to the commencement of the hearing. It does not appear to be contentious that the report was provided to the Monsours at that time. Dr Monsour did not object to the report of Mr Ray going into evidence.[45] It was on the second day of the hearing that the Monsours’ expert Mr Davies declined to participate in a conclave with Mr Ray.
  6. [114]
    The Monsours’ appeal submissions relate to events that occurred on day 5 of the hearing. Contrary to the submissions, the admission into evidence of the further report of Mr Ray had no bearing on the previously proposed experts’ conclave. The Monsours’ submissions fail to engage with Darvill’s assertion that the amended report by Mr Ray in fact favoured them. The Monsours do not point to any specific prejudice as a result of the amended report of Mr Ray being allowed into evidence.
  7. [115]
    Ground of appeal 5(b) is without merit. The application to extend time to seek leave appeal in respect of the ground is refused.

Witnesses unavailable for cross-examination

  1. [116]
    On the last day of the hearing counsel for Darvill informed the Tribunal that a number of witnesses for the builder could not be contacted and would be unable to give evidence. The witnesses had provided written statements which were attached to a statement of evidence of Mr Darvill. The Monsours had received copies of the statements prior to the hearing. Counsel for Darvill sought to tender the statements noting that it was a matter of weight to be afforded the evidence in the absence of the witnesses being available for cross examination.[46] Counsel for Darvill told the learned member that the most important statements were those by a plumber, Mr Jones; a bricklayer, Mr Ferguson; an employee of Darvill, Mr Homewood; and a roofing contractor, Mr Yaxley. Dr Monsour advised the learned member that he wished to cross-examine all of Darvill’s witnesses. The learned member advised Dr Monsour that he would have the opportunity to address the evidence of the witnesses in final written submissions. On this basis, the statements of evidence were admitted into evidence.
  2. [117]
    In the reasons for decision the learned member referred to six of the statements of evidence although the reasons do not identify who the authors of the statements were.
  3. [118]
    The Monsours say the evidence contained in the statements was hearsay, prejudicial to them and could not be tested in cross-examination. They say that it was procedurally unfair for the witness statements to be admitted into evidence.
  4. [119]
    I have addressed the approach taken by the learned member to the weight to be given to the evidence contained in the statements when dealing with appeal ground 4. The procedure for a proceeding is at the discretion of the tribunal, subject to the QCAT Act an enabling Act and the rules.[47]  In all proceedings the tribunal must act fairly and according to the substantial merits of the case.[48] In conducting a proceeding the tribunal must, inter alia, observe the rules of natural justice.[49]  There is no automatic right to cross-examine a witness in tribunal proceedings.[50] However in conducting a hearing the tribunal must allow a party a reasonable opportunity to cross examine witnesses.[51]
  5. [120]
    The learned member referred to the evidence of the employees and sub-contractors when dealing with the issue of the interference by the Monsours with the build.[52]
  6. [121]
    The Monsours’ submissions do not address what they say was the weight, if any, given to the relevant statements of evidence. There is nothing in the reasons to suggest that the learned member ascribed any particular weight to the evidence. Indeed, other than the passage in the reasons referred to, the statements of evidence are not otherwise mentioned. The learned member refers to the authors of the statements ‘voicing similar concerns about the interference and changes’ made by the Monsours. The reference to ‘similar concerns’ is clearly a reference to the builder’s evidence relating to ‘exceptional circumstances’ and, specifically, the evidence of Mr Darvill, Mr Gannon, Mr Paikin, and Mr Weeks who were the principal witnesses whose evidence the learned member considered, and relied upon, in finding exceptional circumstances.
  7. [122]
    It is unclear from the reasons that the learned member attributed any particular weight to the evidence of the witnesses who did not appear at the hearing. Indeed, it seems reasonably clear from the reasons that the learned member considered the evidence to be relevant in the sense only that it reflected the general tenor of the evidence of Mr Darvill, Mr Gannon, Mr Paikin, and Mr Weeks regarding the extent to which the Monsours interfered with, and constantly requested changes to, the works. I am therefore not persuaded that there was a breach of procedural fairness by the learned member.
  8. [123]
    Ground of appeal 5(c) is not made out.

Conclusion

  1. [124]
    I have concluded:
    1. in relation to grounds of appeal 1 and 2, time should not be extended to seek leave to appeal the decision by the learned member to permit the amendment to the counter-application on day one of the hearing or to assert that the reasons for the decision were inadequate;
    2. the application to reinstate ground of appeal 3 should be refused;
    3. in relation to ground of appeal 4 no error has been established;
    4. In relation to grounds of appeal 5(a) and 5(b), time should not be extended to seek leave to appeal;
    5. In relation to ground of appeal 5(c) no error has been established.
  2. [125]
    The following orders are made:
    1. The application to extend time to seek leave to appeal in respect of appeal grounds 1, 2, 5(a) and 5(b) is refused;
    2. The application to reinstate appeal ground 3 is refused;
    3. The application to amend appeal ground 4 is refused;
    4. The appeal in respect of appeal grounds 4 and 5(c) is dismissed.
  3. [126]
    The parties will be directed to file and exchange submissions on costs not to exceed 5 pages in length and submissions in reply, also not to exceed 5 pages in length. Any submissions exceeding 5 pages in length will not be taken into consideration.

Footnotes

[1] Monsour & Anor v C & R Darvill Pty Ltd [2022] QCAT 302.

[2]  QCAT Act, s 142(3)(a)(ii).

[3]  [2011] QCATA 219.

[4]  DBCA, s 79 – s 83.

[5]  DBCA, s 84(2)(b), s 84(3)(b).

[6]  DBCA, s 84(4).

[7]  Transcript, T1-5, line 17.

[8]  (2009) 239 CLR 175.

[9]  [2012] QCA 286 (‘Allaro Homes’).

[10] Allaro Homes (n 10) 5 [15].

[11]  [2019] HCA 32 (‘Mann’).

[12] Mann (n 13) [157].

[13]  T1-3, line 20.

[14]  QCAT Act, s 143(3); s 143(5)(b).

[15]  QCAT Act, s 61(1).

[16]  [2018] QCATA 70.

[17]  The proceeding was commenced in March 2018 and leave to be legally represented was granted to the parties in August 2018.

[18]  T2-31, lines 7-9.

[19]  A reference to the various contractual requirements for variations.

[20]  Appeal Book, pages 86–98.

[21]  Appeal Book, pages 225–231

[22]  (2009) 239 CLR 175.

[23]  ‘Aon and its implications for the Commercial Court’, The Hon. Justice Clyde Croft, 19 August 2010.

[24] Hartnett v Hynes [2009] QSC 225,

[25]  QCAT Act, s 3(b).

[26]  [2018] QCA 352.

[27] Hogan v Hinch [2011] HCA 4.

[28] Webb v The Queen (1994) 13 WAR 257.

[29] Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189.

[30]  Reasons at [254].

[31]  Reasons [265]–[267].

[32]  Reasons [268]–[271].

[33]  Reasons [272]–[273].

[34] Vetter v Lake Macquarie City Council [2001] HCA 12.

[35] Brutus v. Cozens (1973) AC 854.

[36] Allaro Homes (n 10).

[37] Lee v Lee (2019) 266 CLR 129.

[38]  Ibid.

[39]  Reasons [263].

[40]  Appeal Book page 418.

[41]  Appeal Book page 303.

[42]  DBCA, s 3.

[43]  [2007] QDC 299.

[44]  T2-22 line 26.

[45]  T1-6, line 4.

[46]  T8-75, lines 39–47.

[47]  QCAT Act, s 28(1).

[48]  QCAT Act, s 28(2).

[49]  QCAT Act, s 28(3)(a).

[50] Martin v Gosdschan [2011] QCATA 224.

[51]  QCAT Act, s 95(1)(b).

[52]  Reasons at [263].

Close

Editorial Notes

  • Published Case Name:

    Monsour & Anor v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust

  • Shortened Case Name:

    Monsour v C & R Darvill Pty Ltd

  • MNC:

    [2024] QCATA 103

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    10 Sep 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QCATA 10310 Sep 2024-
Notice of Appeal FiledFile Number: CA 13671/2411 Oct 2024-

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
Allaro Homes Cairns Pty Ltd v O'Reilly [2012] QCA 286
2 citations
Jump To
Cite 1 - [2012] QCA 286
Cite 2 - [2012] QCA 286
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
3 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Cite 3 - (2009) 239 CLR 175
Brutus v Cozens (1973) AC 854
2 citations
Jump To
Cite 1 - (1973) AC 854
Cite 2 - (1973) AC 854
Cachia v Grech [2009] NSW CA 232
1 citation
Jump To
Cite 1 - [2009] NSW CA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
1 citation
Jump To
Cite 1 - [1986] 2 Qd R 388
Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70
2 citations
Jump To
Cite 1 - [2018] QCATA 70
Cite 2 - [2018] QCATA 70
Hartnett v Hynes [2009] QSC 225
1 citation
Jump To
Cite 1 - [2009] QSC 225
Hogan v Hinch [2011] HCA 4
2 citations
Jump To
Cite 1 - [2011] HCA 4
Cite 2 - [2011] HCA 4
King & Ors v Australian Securities and Investments Commission [2018] QCA 352
2 citations
Jump To
Cite 1 - [2018] QCA 352
Cite 2 - [2018] QCA 352
Lee v Lee (2019) 266 CLR 129
2 citations
Jump To
Cite 1 - (2019) 266 CLR 129
Cite 2 - (2019) 266 CLR 129
Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219
2 citations
Jump To
Cite 1 - [2011] QCATA 219
Cite 2 - [2011] QCATA 219
Mann v Paterson Constructions Pty Ltd [2019] HCA 32
2 citations
Jump To
Cite 1 - [2019] HCA 32
Cite 2 - [2019] HCA 32
Martin v Gosdschan (No 2) [2011] QCATA 224
2 citations
Jump To
Cite 1 - [2011] QCATA 224
Cite 2 - [2011] QCATA 224
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
1 citation
Jump To
Cite 1 - [1989] 2 Qd R 577
Monsour v C & R Darvill Pty Ltd [2022] QCAT 302
2 citations
Jump To
Cite 1 - [2022] QCAT 302
Cite 2 - [2022] QCAT 302
Monsour v C & R Darvill Pty Ltd [2023] QCAT 62
1 citation
Jump To
Cite 1 - [2023] QCAT 62
Poiner v Quirk [2007] QDC 299
2 citations
Jump To
Cite 1 - [2007] QDC 299
Cite 2 - [2007] QDC 299
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
4 citations
Jump To
Cite 1 - [2008] QCA 257
Cite 2 - [2008] QCA 257
Cite 3 - [2009] 1 Qd R 41
Cite 4 - [2009] 1 Qd R 41
Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189
2 citations
Jump To
Cite 1 - [2020] QCA 189
Cite 2 - [2020] QCA 189
Vetter v Lake Macquarie CC [2001] HCA 12
2 citations
Jump To
Cite 1 - [2001] HCA 12
Cite 2 - [2001] HCA 12
Webb v The Queen (1994) 13 WAR 257
2 citations
Jump To
Cite 1 - (1994) 13 WAR 257
Cite 2 - (1994) 13 WAR 257

Cases Citing

Case NameFull CitationFrequency
Monsour v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust [2024] QCATA 1102 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.