Robertiello v Dilione[2002] QDC 173

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Vincenzo Robertiello (a contractor), seeks an extension of time within which to appeal a decision of the Queensland Building Tribunal (“the Tribunal”) given on 14 January 2002. The application is made pursuant to Rules 748 and 785(1) of the Uniform Civil Procedure Rules 1999 (“UCPR”) and section 92 of the Queensland Building Tribunal Act (Qld) 2000 (“the Act”). The application to extend time was filed on 9 May 2002, nearly four(4) months after the decision.  The applicant had applied a waterproofing sealer on the floor area of the roof deck at a property belonging to the respondents Lino Di Lione and Frank Di Lione namely 68 Chester Street, Teneriffe.  The work was completed in early November, 1995. The applicant disputes that he contracted with the respondents and now alleges that the contract was with Franco Di Lione Construction Pty. Ltd.  That was a matter not raised before the Tribunal.  Also, there is a further report by an engineer Mr. Golle which suggests that the work was done properly in the first instance.  That report was not before the Tribunal. 

2. [2]
   The applicant had received a letter from the respondents’ solicitor on 23 April 2001 alleging defective work. The applicant attended at the premises and conducted flood tests. He satisfied himself that the Emer-clad waterproofing membrane was not the cause of the leak. The applicant then received the Domestic Building Dispute Application from the respondents’ solicitor Mr. Barbi. The application was filed on 17 August 2001. The statement of claim alleged that the work done was defective. The warranty given by the applicant was due to expire on 20 August 2001. The work had been carried out between August and November 1995.

Background to the decision of the Tribunal

3. [3]
   The applicant attended a mediation by a mediator appointed by the Tribunal on 18 September 2001. It was agreed at the mediation as follows:

“ The parties in the dispute have reached a solution acceptable to both parties as follows:

We the undersigned agree with the following outcomes of the mediation conducted at the Queensland Building Tribunal on 18^th of September 2001 and that the Parties consent to this agreement being made an order of the tribunal.  All items listed in this agreement to be started by 24^th September 2001 and completed by the 5^th of October 2001. 

The Applicant to provide unrestricted access. 

The Respondent to provide a minimum of 24 hrs notice to the Applicant prior to any work taking place. 

The Respondent to carry out all necessary works to test and rectify the leak.  All consequential damage resulting from the testing procedure to be rectified by the Respondent. 

The Respondent to rectify all previous attempts to work  undertaken to locate the leak. 

The Respondent to engage the services of the Queensland Master Builders Association if the Respondent is unable to locate the leak and to use their services to assist in the location of the penetration.  A further two week from the 8^th of October to the 19^th October to be allocated to the “Outside Consultant” who is to be provided by the Respondent to carry out and repair the fault.

The Respondent on completion of the rectification work to provide a garantee (sic) of the completed works to the Applicant.

If the leak can not be located during the time frame given the Respondant is to notify the Applicants Solisitor (sic) N.R. Barbi.

It is also agreed that the Queensland Building Tribunal application fee of $200 be paid by the Respondent to the Applicant

The above items are located at 68 Chester Street Teneriffe, QLD 4006”

4. [4]
   Pursuant to the mediation agreement, the applicant removed tiles and extended the Emer-clad waterproofing from 100 to 150 mm onto the surrounding walls of the roof deck of the premises. In late October 2001, the male respondent contacted the applicant and complained of further leaks. The applicant maintained that the waterproofing was not the cause of the leak but the brick work of the surrounding walls of the roof deck may be.

5. [5]
   On 4 December 2001, the Tribunal in the absence of the applicant made orders in terms of the mediation agreement and directions. The applicant said that his mother in law was ill that morning. The first application was heard by the member of the Tribunal on 10 January 2002. The applicant filed statements and gave evidence by telephone. The decision of the Tribunal was delivered on 14 January. As part of the reasoning of the Tribunal, reference was made to certain specifications provided by the distributor of the Emer-clad to the respondents. There was no evidence before the Tribunal that the applicant had ever seen these specifications. That finding was specifically made by the member in the reasons given on 14 January (para. 17). The member went on and said:

“Regardless of whether or not he had received them (the specifications) he had agreed to rectify the leak and further had promised, in the event that the rectification work was not effective, that he would engage the services of an expert.  He failed to do so.

6. [6]
   An order had been made by the member pursuant to s. 125 of the Act which provided that:

“The tribunal may make a decision in terms of the settlement, and may make consequential orders or give consequential directions”.

Having made a decision in the absence of the applicant under s. 119 of the Act, the member then proceeded to order statements of evidence going to the cause of the leak.    It was envisaged that there would be further evidence and that was in fact heard on 10 January 2002.  The problem which arises in this case from that procedure is that at the hearing, an order was made that the applicant was required to “rectify the leak.  This involves waterproofing the top and back of the parapet wall in accordance with the original specification.”  That aspect was never part of the contract between the applicant and the respondents.  The end seams according to the specification were required to be lapped up to 150 millimetres.  The mediation required the applicant to rectify the work done.  The order of the member set new parameters for the contract.  Although the member is entitled to make consequential orders under s. 125(5), it seems to be a hybrid arrangement to hear new evidence and then to re-write the original contract and order rectification over and above what was agreed to at the mediation.  In fact, there was a specific finding by the member (para. 15) “that the leaks continue despite the rectification work undertaken by the respondent (the present applicant) because that rectification did not extend to complete compliance with the original specification for the work”.  The applicant was never bound by the original specification.  He never saw it.   His contract was to waterproof the floor area and up to 100 millimetres onto the surrounding walls of the roof deck of the said premises.   It seems to me, in any event,  that the parties have waived what was agreed to at the mediation by engaging in further proceedings based on other evidence.  There is prima facie,  an erroneous approach, in my view, to the determination of this matter by the member.  

7. [7]
   Some support can be found for that reasoning when one looks to s. 128 of the Act which talks of expedited hearings if the dispute is not resolved at mediation. If the matter is too complex then an expedited hearing may be inappropriate. There is no provision in the Act for the terms of settlement of the mediation to be the basis for a further hearing. The only provision is for the member to “make a decision in terms of the settlement” and make consequential orders. The member in the present case then proceeded to hear evidence as to the cause of the leak when the parties had resolved the matter based upon the original agreement and the extent of the work carried out under that agreement. It seems, with respect, to be unjust to impose the specifications as the basis of the work to be done when they did not form part of the original agreement. The specifications, I find, did broaden the nature of the work to be done on the paraphet walls for example. This area had already been tiled. Normally, the waterproofing membrane would be applied prior to the tiles being laid: (para. 28 affidavit of applicant filed 9 May 2002). This area seems to be a possible cause of the leak.

8. [8]
   The fresh evidence from Mr. Golle and the issue of the contracting parties may be the subject of an application if this matter is to be reheard. These matters could have been properly raised at the hearing before the member on 10 January. However, an appeal from a decision of the Tribunal is by way of rehearing, and further evidence may be adduced if allowed by the Court: s. 92(4) of the Act. The further evidence may establish that the applicant did not in fact contract with the respondents but rather with their company. The quote was made out to Franco Di Lione Construction Pty. Ltd. I make no finding in that regard but mention that fact as another matter which establishes an arguable ground of appeal. Also, the report from Mr. Golle does point to the capping tiles as a source of the leaking. The tiles and mortar grout are porous. These matters do establish, in my view, some merit for this appeal. If the new evidence is allowed to be adduced, then the Court may remit the case to the Tribunal for further hearing or rehearing or reverse the Tribunal’s findings: s. 92(6) of the Act.

Extension of time in which to appeal.

9. [9]
   An extension of time may be given if it is necessary to avoid a plain injustice: O'Callaghan v Hall and Hall.^[1] In the present case, I find that it is an injustice for the applicant to have imposed upon him the specifications as the basis for rectification work.  The Tribunal relied upon both the terms of mediation and also further evidence which introduced the specifications for the first time.  That approach, in itself, may be seen as inappropriate.  Also, I am satisfied, that if the fresh evidence is allowed, it may provide a basis for allowing the appeal and reversing the findings of the Tribunal. 

10. [10]
    Apart from the injustice point, the explanation given by the applicant for failing to appeal within the twenty eight (28) days is somewhat thin. A satisfactory statement of the reason for the delay ought to be given: McLaren v. The Public Curator of Queensland and Anor.^[2].  The reasons offered by the Applicant were:

1. The Applicant was not aware of the decision until notified by Mr. Barbi on 6 March 2002.
2. The Applicant was unable to attend on 13 March 2002 as his mother-in-law had passed away on 31 January 2002 and his own mother on 22 February 2002.
3. The second application was adjourned to 18 April 2002 and the Applicant did not obtain legal representation initially as he believed that the Emer-clad waterproofing was not the cause of the leak.  He retained solicitors on 3 April 2002.  This application related to the Applicant’s cancellation of registration for failure to comply with orders of the Tribunal.
4. That because he was not legally represented at the hearing on 10 January 2002, he omitted to call evidence relating to the original contractual provisions, the expert evidence or that he was not given the specifications prior to him carrying out the work. 

11. [11]
    The extension of time sought is 87 days. There is no explanation given for the delay between 6 March 2002 and the present application which was filed on 9 May 2002. Also, there is no explanation given by the Applicant as to why he did not receive the reasons for the decision of the Tribunal forwarded to him at his address for service provided by him to the Tribunal.  It seems that at all times between January 2002 and May 2002, the Applicant was resident at 33 Ennor Street, Wavell Heights.  There are credibility gaps in the Applicant’s explanation for the delay.  In  O'Callaghan v. Hall and Hall^[3].the delay was some eighteen (18) months.

12. [12]
    The Court of Appeal stated that given such a delay, it would only be “in the most extraordinary circumstances, and to avoid plain injustice, could this Court consider granting an extension of time to appeal after such a long and unjustifiable delay as has occurred here”. I am satisfied that on the facts of the present case, that there are extraordinary circumstances. There is, if the evidence of the Applicant be accepted, a plain injustice on several grounds previously referred to. In relation to the reasons of the Tribunal, that injustice has already been established.

13. [13]
    For those reasons, the Applicant is given an extension of time to 19 July 2002 in which to appeal against the decision of the Queensland Building Tribunal and which was delivered on 14 January 2002 pursuant to rules 748 and 785(1) of the Uniform Civil Procedure Rules 1999.  The costs of this application are reserved.