Drew, Re[1996] QDC 324

CHAMBERS

JUDGE ROBIN QC

IN THE MATTER OF THE “QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991”

and

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 94 THEREOF

BY JOHN DAVID DREW

BRISBANE

DATE 19/09/96

BRISBANE

CATCHWORDS:

Appeal - application for leave to appeal to District Court from Queensland Building Tribunal - nature of appeal considered (not an appeal de novo) - test of what an applicant for leave must show - leave refused - Tribunal Member's findings were permitted by the evidence.

JUDGMENT

HIS HONOUR: This is an application by a builder who was unsuccessful “below”, in the sense that the tribunal constituted under the Queensland Building Services Authority Act 1991 ordered him to pay a substantial sum of money for rectification work, and a substantial amount of costs to Mr and Mrs Heslop who had proceeded against him there. Section 94(1) of the Act particularly says that the parties to a proceeding before the tribunal may by leave of the District Court appeal against the determination of the tribunal in a proceeding. There is a time limit. The respondents raise no technical objection to the application or the timing of it.

There is no legislative guidance as to when leave ought to be granted. On my interpretation of section 94(1) the matter is at large, in stark contrast to the position which obtains in respect of appeals from the Magistrates Court or a District Court, or from a District Court to the Court of Appeal where the amount in issue falls below a modest monetary threshold. The general structure of the Act led me to observe in another matter, Skinner v. The Queensland Building Tribunal and Szabo, Appeal 138 of 1995 of 26 February 1996:

I have been referred to two decisions of Judges of this Court which formulate suggested tests, Judge Wylie in Trewin v. Clemitson, Application number 7 of 1994, 28 January 1994, and Judge Morley in Lukaszewicz v. Leavy, No 13 of 1995, 20 July 1995. The latter suggests a slightly stricter test, namely that an applicant must demonstrate a foundation for a prediction of success on appeal. Judge Wylie stated:

The appeal, if one is brought, is not by way of rehearing. Judge Kimmins so determined in Ashmore Constructions Pty Ltd v. Queensland Building Services Authority, Appeal No 8 of 1993, a judgment delivered sometime in February 1993. That approach, whereby “the findings of the tribunal are to be equated to the verdict of a jury and will be disregarded only if they can be shown to be manifestly wrong”, has been adopted by other Judges including Judge Brabazon whose language (in Queensland Building Services Authority v. Progressive Enterprises Pty Ltd, Plaint No 246 of 1995, 10 January 1996) I have adopted in this sentence. That this is a correct understanding of the nature of the appeal to the District Court from the tribunal is now beyond doubt, the Court of Appeal having given their imprimatur to Judge Kimmins' views in Whywait Pty Ltd and Mays v. Davison, Appeal No 184 of 1995, 4 June 1996. The judgment of the Court contains the following:

It has become something of a practice for the Judges of the Court to attempt to obviate a split hearing by dealing with an application for leave to appeal and the merits of the appeal together. Judge Brabazon did it and more recently Judge Forde in Foundation Engineering Services Pty Ltd v. Whybird Brown & Farr Pty Ltd, 5 July 1996, Plaint No 2126 of 1996. Ms Adams for the respondents was content that I proceed in this way, but Mr Miles for the applicant builder demurred. He was not fully briefed and, with justification, did not wish to be put in the position of having to say everything that could be said in support of an appeal on this application for leave to appeal. It was common ground that his client would have to show more to succeed on the appeal than to obtain leave.

I proceed on the basis that the test for leave is as set out in Judge Wylie's decision which gives Mr Miles the easier rather than the harder task. Judge Kimmins described the process on appeal in this way:

The challenges to what the Member has done were several. The most substantial issue resolved against the present applicant was whether or not a verandah slab in the residence he constructed for the respondents could be rectified or required demolition. There was also decided in favour of the respondents an issue of defective tiling described as “drummy tiles”. A separate dispute in respect of tiling which arose as an extra in the building contract was resolved against Mr and Mrs Heslop, the present respondents but applicants at the tribunal. Objection is also made to the costs determination made by the tribunal Member. In respect of that, reference to Judge Forde's decision already referred to is useful.

Mr Miles submits that the tribunal's determination in respect of the verandah is such that the threshold for granting leave to appeal is reached. He attacked a number of separate findings of the Member, which together led him to the conclusion that demolition and reconstruction at a cost of $10,000, roughly the average of two quotations, was appropriate.

The Member found that the “edge beam” was not installed; that a Visqueen vapour barrier was not installed and that bolster construction joints were not supplied as required by the plans; that there was a fall in the verandah slab in some place or places towards the main dwelling when at all locations the fall was to be away; and that there was cracking in the verandah slab which was likely to become worse with time.

Mr Drew's case was and is that the edge beam required was installed (not by him but by his subcontractor concreter); that the Visqueen vapour barrier, if omitted contrary to the engineering drawings underneath the verandah, was such that its omission posed no threat to the structural integrity of the verandah - this last contention Ms Adams concedes; that in respect of bolster construction joints any departure from the engineering drawings was by way of provision of extra joints which would only go to strengthen the slab; that any instance of fall in the verandah slab in the wrong direction was within the accepted tolerances; and that any cracking was of a kind only to be expected in a slab, as conceded by the Heslop's expert witness, Mr Abercromby, for example, and is of no significance as far as the soundness of the verandah is concerned.

It seems to me clear that in respect of the Visqueen vapour barrier and the edge beam, as well as the bolster construction joints, the construction of the residence departed from the engineering plans. As far as the last mentioned is concerned, it seems that only six of the stipulated 10 joints were provided, but in addition to that another 10 were provided in other places. Whether or not that enhanced the strength of the structure would, it seems to me, depend on where the joints were located and perhaps some explanation by an expert, because the evidence does not seem to incorporate it.

So far as the edge beam is concerned, Mr Drew and his contractor say that the edge beam was provided, not in accordance with the plans around the very perimeter of the slab, but set in at some distance which they assert supplied an aesthetic benefit without compromising the strength of the slab. The suggestion that a search for the edge beam could only properly be conducted by digging in under the slab had arisen before the hearing before the Member. Holes were dug under the slab and Mr Chesterton at least - see transcript day two page 30 - observed no edge beam underneath. He said there were two places where the slab had been dug under.

There were a number of reports before the Member in addition to Mr Heslop's evidence to the effect that the edge beam was not there. Against that was the concreter's evidence and against it also might be ranged Mr Drew's hearsay attributed to his plumber who after the hearing below went on the site to rectify his defective plumbing work and discovered it, then he apparently told Mr Drew that the edge beam was there.

It was clearly an issue at the hearing before the Member whether or not the edge beam was there. I cannot see that given the nature of the appeal under section 94 it is open to Mr Drew to adduce fresh evidence. If it is and the usual test for the acceptance of fresh evidence applies, I doubt that the information which it seems the plumber might now be able to give would be received. The plumber is a Mr Scott McPhail.

On the material which I have, I consider that it has to be said there was evidence justifying the Member's view of the edge beam situation. The possibility that the conclusion was wrong is clearly open. I feel some embarrassment having to proceed in the way I do when presumably some test could be devised which would provide a conclusive resolution of the issue. That way of resolving the matter seems to me not to be open. We are dealing with adversary proceedings which must be decided on the evidence presented in the course of them. I find it impossible to say the Member was wrong.

Even if he were wrong in relation to the edge beam, he had recourse to a number of features of the construction including the significant aspect that in at least three respects it failed to comply with the engineer's drawings which, in my opinion, all goes to render the Member's determination regarding the verandah slab as a whole one which is justified by the evidence. I do not think it is an answer for a builder to say that departures from the engineering plans improve the construction in a case like this.

So far as the tiles issue is concerned, this was very much a factual issue. One can understand Mr Drew's dissatisfaction that the number of drummy tiles requiring replacement which the Heslops pointed to increased over time. Their case was that insufficient adhesive was used and that in one instance or perhaps more, adhesive was placed on painted concrete.

Mr Drew blames the Heslops for any fault with the tiles, claiming that they walked on tiles which had been freshly laid and that they ought to have known better, known not to do it, even in the absence of any warning at the time. There are perhaps differences in the parties' understanding of what constitutes a drummy tile, Mr Drew favouring the view that these are limited to tiles which have actually moved and where the grouting is disintegrating. The present respondents say that it extends to any tiles which when tapped sound hollow so that there is an unacceptable risk of their becoming loose, the hollowness indicating a lack of sufficient adhesion in my opinion, that is a factual issue in which the evidence was such that it was open to the Member to reach the conclusion he did.

Mr Drew makes a complaint of procedural unfairness against the Member as well, in particular his receipt of expert reports and evidence in the interests of the Heslops which was made known to him only the day before the two day hearing which occurred in Kingaroy. I have been taken to passages in the transcript which indicate that objections by him, accompanied by a request for an adjournment which the Member refused, were not made until the second day of the hearing, but in the context that the Member gave him every opportunity to adduce further evidence if he wished to do it.

Mr Drew's solicitors did, indeed, write to the tribunal on the day following the Member's publication of his reasons for his decision inviting further consideration, or that at least was the way the tribunal Member took the letter. I think it is right to say that except for the question of costs, the Member had little enthusiasm for reopening his determination, referring Mr Drew to his rights of appeal. That response by the tribunal means that it cannot be said that Mr Drew has failed to exhaust his remedies in the tribunal which can, in my opinion, in an appropriate case be a reason for the refusal of an application for leave to appeal. I refer to my decision in Bethune v. Denley, 971 of 1996, 17 April 1996.

The costs issue which I mentioned is relied on by Mr Miles as a third reason why leave to appeal ought to be granted to Mr Drew. The principal objection is that what the Member did is that he awarded costs, it is said, by reference to work done on issues which were not ultimately decided by the Member at all, but sorted out in a mediation which took place at Kingaroy while the hearing was running. In this respect the Member, in his supplementary reasons, a copy of which is Exhibit 1, did reconsider the matter. The reasons are dated 26 June 1996. I am of the view that the reasons given by the Member for his costs determination are acceptable justification for what he did; the determination is certainly not shown to be “manifestly wrong” any more than the one reviewed by Judge Forde.

It appears to me, (having given as careful consideration as I can to what all of the circumstances which might be before the Court if an appeal were constituted,) that the prospects of an appeal succeeding, given the nature of that appeal as clarified now by the Court of Appeal, are negligible. It follows that I refuse the application for leave.

MS ADAMS: Your Honour, I would seek costs of this application as well.

HIS HONOUR: What do you say about that, Mr Miles?

MR MILES: I cannot argue against that, Your Honour.

HIS HONOUR: The application is dismissed or refused, with costs to be taxed.