Re an application by Skinner
[1998] QDC 355
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- Unreported Judgment
- Re an application by Skinner[1998] QDC 355
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Re an application by Skinner[1998] QDC 355
Re an application by Skinner[1998] QDC 355
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No 3534 of 1997 |
In the matter of an application by Anthony & France Skinner for Leave to Appeal in the matter of a decision by the Queensland Building Tribunal CO 78/94 (Szabo v Skinner) of 14th July, 1997
Appeal No 3535 of 1997
In the matter of an application by Anthony & France Skinner for Leave to Appeal in the matter of a decision by the Queensland Building Tribunal RO 99/95 (Anthony & France Skinner v Queensland Building Services Authority) of 14th July, 1997
Appeal No 3536 of 1997
In the matter of an application by Anthony & France Skinner for Leave to Appeal in the matter of a decision by the Queensland Building Tribunal CO 300/94 (GK Mullins Pty Ltd. Receiver Appointed) v Anthony & France Skinner) of 14th July, 1997
REASONS FOR JUDGMENT - BOULTON D.C.J.
Delivered the 22nd day of December, 1998
These are applications 3534/97, 3535/97 and 3536/97 which are made by Mr and Mrs Skinner seeking leave to appeal against three decisions of the Queensland Building Tribunal given the 14th July 1997. On that day Member Mr R.N. Wensley QC reconsidered an earlier decision which had been given on 11th October 1996. In that earlier decision he had resolved four applications (two of them being applications to review) which arose out of complicated arrangements to build a house for the Skinners in 1993 - 1994. Mr and Mrs Skinner initially contracted with a Mr Szabo who was not a registered builder. Mr Szabo got into difficulties. The Skinners then enlisted the services of G.K. Mullins Pty Ltd (hereinafter referred to as “Mullins”) which was a registered builder and took over the project utilising Mr Szabo's services as its agent. An insurance premium was paid to the Queensland Building Services Authority pursuant to the contract which had been entered into with Mullins.
A series of disputes arose concerning all of the abovementioned parties. Mr Szabo was the first to apply to the Tribunal on 9th February 1994. That application was CO 78/94. That was only the beginning of the problems as disputes arose in the first half of 1994 between the Skinners and Mullins which led to Mullins ceasing work. In July 1994 the Authority gave a direction to Mullins to complete the project. Mullins then applied to the Tribunal to review this direction in RO 49/94.
In August 1994 Mr Szabo's application was heard by Member Jensen who made findings that the contract between the Skinners and Mullins was “a sham”. This finding was later overturned on appeal to the District Court in early 1996 but until this occurred it created chaos in the relationships between the Skinners, Mullins and the Authority. Mullins launched application C300/94 against the Skinners. The Authority proceeded to refuse insurance to the Skinners on the basis that the contract with Mullins was a sham. The Skinners applied to the Tribunal to review that refusal. That was application R099/95. In early 1996 Judge Robin overturned the decision of Member Jensen and referred application C078/94 back to the Tribunal for further consideration. In doing so he passed the comment that the dispute was “a nightmare for all concerned from almost every point of view”.
Mr Wensley QC heard the four applications together over nine days in April - June 1996. On the 11th October 1996 he handed down his decisions dismissing applications R049/94 and R099/95. In the two substantive applications he ordered that the Skinners pay to Szabo $10,800 and that Mullins pay the Skinners $31,445.04.
The Skinners sought an extension of time within which to appeal against Mr Wensley's decisions in the District Court at Cairns. On the 14th February 1997 His Honour Judge Daly refused to grant an extension of time.
The Skinners then sought a reconsideration from Mr Wensley of his decisions in C078/94, C300/94 and R099/95. On the 14th July 1997 Mr Wensley published his decision dismissing those applications.
It is against this final decision of Mr Wensley that the applicants now seek leave to appeal to the District Court.
The matters came on for hearing before me in chambers on Monday, 30th November 1998. There was no appearance for Mr Szabo or Mullins. I made an order for substituted service on both by express post and adjourned the matter to Friday, 4th December 1998 for hearing. On that occasion neither Mr Szabo nor Mullins appeared either in person or through legal representatives. Mr Skinner appeared in person. Mr Thomson, a solicitor, appeared for the Authority and read an affidavit of C Sawford filed 2nd December 1998 which exhibited the abovementioned decisions. Mr Skinner read no affidavit material but produced some brief written submissions.
Because of the volume of material and its complexity I reserved my decision on the matter after having heard oral submissions. I allowed Mr Skinner to give some brief oral evidence in lieu of an affidavit in order to satisfy me that he had complied with my order for substituted service.
The claims made by Mr Skinner in his written outline are many and varied. They extend to alleging bias in the conduct of the initial proceedings. Mr Skinner expressed dissatisfaction with things said or done during the conduct of those proceedings and indeed with the adverse findings.
The task of an applicant for leave to appeal against a decision of the Tribunal is not an easy one at the best of times. In Ashmore Constructions Pty Ltd v Queensland Building Services Authority Appeal 8/1993 (unrep) Kimmins DCJ determined that such an appeal is not by way of rehearing. The decision of the Tribunal is equated to the verdict of the jury. He referred to what was said by Connolly J in Callinan v Boyne Smelters Ltd [1984] 2 Qd R 501 at 505-506:
“It is obvious that the appellate court cannot set aside the verdict as being against the weight of evidence merely because the court does not agree with it and that the question is not whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty; and that the appellate court must always be on guard against the tendency to set aside a verdict because it feels it would have come to a different conclusion.”
His Honour's view was endorsed by the Court of Appeal of the Supreme Court of Queensland in Whywait Pty Ltd v Mays & Ors (App No. 184 of 1995). After referring to His Honour's decision and the authorities to which His Honour had referred this Court went on to say:
“With respect, His Honour's judgment to that effect appears correct. It also has the merit of restricting the scope of appeals on matters of fact which may be brought from a Tribunal which, having regard to the provisions of the Act of 1991 was evidently designed to provide a more informal and less expensive procedure and forum for determining domestic building disputes that are generally believed to be available in ordinary litigation.”
In Lukaszewicz v Leavy Morley DCJ on the 12th July 1995 made reference to “the legislative intent...to accord to the Tribunal's determinations a high degree of finality affording an appeal only upon error demonstrated by reference to the materials before the Tribunal.”
The current applications are directed not at an original decision of the Tribunal such as that of Mr Wensley of 11th October 1996 but at a reconsideration made in July 1997. The power of the Tribunal member to reconsider determinations is set out in s.92 of the Queensland Building Services Authority Act 1991. Subsections (3) and (4) of that section are as follows:
- “(3)A reconsideration under sub-section (1)-
- (a)May be made by the member of the Tribunal who made the determination, the chairperson or other member of the Tribunal; and
- (b)Must be made only on the evidence placed before the Tribunal at the hearing of the proceeding.
- (4)An application under this section-
- (a)Must be made within 14 days after the making of the determination; and
- (b)Must be based on a clerical mistake or factual error in the findings of the Tribunal that is of sufficient significance to have influenced the outcome of the proceeding.”
Despite the fact that the current applications are directed at Mr Wensley's reconsideration it is necessary to look carefully at Mr Wensley's original decision because clerical mistakes or factual errors in that decision would have been required to be identified and to have been of sufficient significance in order to persuade Mr Wensley to vary or reverse his original determination.
No such clerical mistake or factual error is identified. I have, however, carefully perused the reasons for decision of Mr Wensley in order to determine whether there is any reasonable prospect of his reconsideration being overturned were leave to be granted.
Mr Wensley canvassed the complicated facts at considerable length before turning to his determination of the substantive applications. He dealt first with the claims of Mr Szabo and with the fact that s.42(3) of the Act barred recovery by an unlicensed builder. He concluded at page 36 of his reasons that Mr Szabo should fail in his action in so far as it was based on contract or in damages. However, he went on to consider the principles referred to by the High Court of Australia in Pavey & Matthews v Paul (1987) 162 CLR 221 and at page 38 concluded as follows:
“I conclude, therefore, that the evidence suggests that the sum claimed by Mr Szabo, namely, $10,723.00, which is based upon about one half of the work under the first and second contract having been completed, is probably a reasonable reflection of the value of the work performed by Mr Szabo the benefit of which (subject to adjustment for any defective workmanship) has been taken by Mr and Mrs Skinner.”
Mr Wensley then embarked on a detailed analysis of particular issues. He found that Mullins had paid the sum of $6,220.36 for timber on behalf of the Skinners. He examined each of the claims for work which was not performed in accordance with the plans or which had been defectively performed. In some of these cases he apportioned responsibility between Mr Szabo and Mullins. Between pages 67 and 74 of his judgment he identified items totally $19,200 for which Mullins should take responsibility and further miscellaneous claims totalling $6,235.
He proceeded to determine the reasonable cost of completing the building following the repudiation of contract by Mullins discounting this by 15% for a failure to mitigate on the part of the Skinners. This produced a sum of $32,300. Allowance was made for $19,769.60 which had not been paid to Mullins. The difference of $12,230.40 was then added to the $19,200 and $6,235 referred to above. On taking into account the payment for timber in the sum of $6,220.36 he arrived at the final figure due from Mullins to the Skinners. The figure payable to Szabo was arrived at in similar fashion.
In considering the claim against the Authority for insurance Mr Wensley carefully considered the terms of the insurance policy which was contained in Exhibit 64. He identified the nature of the claim as one for non-completion referring to the provisions of Clause 2.2 which was in the following terms:
“The contractor is deemed to have failed to execute the residential construction work to practical completion where the owner has properly terminated the contract with the contractor for the performance of the residential construction work because of -
- (a)the neglect or default of the contractor; or
- (b)...”
At page 88 of his reasons he went to hold that the Skinners, when faced with the builder's repudiation of the contract, elected to hold the builder to the contract rather than to accept the repudiation and to determine the contract at law. He observed:
“The Skinners' application to the Authority to the Tribunal to pursue the claim for an order that G.K. Mullins Pty Ltd conclude the work can only be consistent with the conclusion that they wished to hold the builder to the contract. It might be argued that their engagement of Mr Northern to bring the works to a more advanced state than that with which they were left with by Mr Mullins was a tacit acceptance of the repudiation but, again, that was not submitted to me and I do not think such a submission should succeed.”
No clerical mistake or factual error can be determined in any of the above. Mr Wensley's analysis of the building issues is careful and detailed. Far from there being any indication of bias there is a well reasoned and balanced objectivity.
When it came to the question of the insurance policy and the termination of the contract it was necessary for him to draw an inference based on the evidence. It might be said that there were competing considerations and that the finding might well have gone the other way. The confusion brought about by the Tribunal's decision to the effect that the Mullins contract was a sham was something that affected the behaviour of the Skinners and indeed that of the Authority itself during that period. Some sympathy can well be felt for the Skinners who were trying to get their house completed against the backdrop of such a finding.
However, the determination of Mr Wensley concerning the failure of the Skinners to properly determine the Mullins contract is supported by the evidence. Again no clerical mistake or factual error is demonstrated. Mr Wensley's reconsideration of the issue is within the strict limitations of the statute. I am satisfied that leave to appeal should not be granted.
I therefore order that the three applications be dismissed. I note that Mr Szabo and Mullins did not appear and I make no order as to the costs of the applications concerning them. I will consider an application for the costs of the application concerning the Authority if and when such an application is made.