Walker v Davlyn Homes Pty Ltd
[2003] QDC 292
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- Unreported Judgment
- Appeal Determined (QCA)
- Walker v Davlyn Homes Pty Ltd[2003] QDC 292
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Walker v Davlyn Homes Pty Ltd[2003] QDC 292
Walker v Davlyn Homes Pty Ltd[2003] QDC 292
DISTRICT COURT OF QUEENSLAND
CITATION: | Leonard & Vera Walker v Davlyn Homes Pty Ltd [2003] QDC 292 |
PARTIES: | LEONARD WALKER and VERA WALKER Appellants AND DAVLYN HOMES PTY LTD (ACN 069 150 376) Respondent |
FILE NO/S: | D3551 of 2002 |
DIVISION: | District Court |
PROCEEDING: | Brisbane Court |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 26 August 2003 |
DELIVERED AT: | Brisbane District Court |
HEARING DATE: | 11 August 2003 |
JUDGE: | Samios DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | Appeal and New Trial – Appellant Jurisdiction – Appeal from Queensland Building Tribunal to District Court – whether errors made by tribunal Queensland Building Tribunal Act 2000 s.92(4), s.41(2), s.41(3) Heyman v Darwins Ltd (1942) AC 356 Howard v Dickford Tool Co Ltd (1950) 1 KB 417 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Morris v Baron & Co (1918) AC 1 Pavey and Matthews Pty Ltd v Paul (1986) 162 CLR 221 Pointon v Redcliffe Demolitions Pty Ltd (2002) QDC 131 Shepherd v Felt & Textiles of Australia Limited (1931) 45 CLR 359 Summers v Commonwealth (1918) 25 CLR 144 Sumpter v Hedges (1898) 1 QB 673 Sweet & Maxwell Limited v. Universal News Services Limited (1964) 2 QB 699 |
COUNSEL: | Mr L Smith for the Appellants Mr K Copely for the Respondent |
SOLICITORS: | Ace Solicitors for the Appellants Robert Bakker Lawyers for the Respondent |
- [1]This is an appeal against the decision of the Queensland Building Tribunal (the Tribunal) delivered on 26 July 2002 by which it was ordered that the appellants pay the respondent by 9 August 2002 the sum of $16,140.24.
- [2]By an application filed in the Tribunal on 2 January 2002, the respondent who was a licensed builder, sought orders against the appellants for the payments of moneys and costs, losses and damages pursuant to a contract for the construction of a house for the appellants at 29 Jodi Close, Ningi in the Caboolture region north of Brisbane. The appellants filed a defence and counter-claim to the respondents application in the Tribunal on 27 May 2002. The appellants filed a further defence and counter-claim to the respondent’s application in the Tribunal on 31 May 2002.
- [3]The hearing of the proceedings between the parties took place on 10 May 2002 and 11 June 2002.
- [4]On the hearing of this appeal counsel for the appellants and counsel for the respondent accepted that despite the repeal of the Queensland Building Tribunal Act 2000 (the Act) by the Commercial and Consumer Tribunal Act 2003 which commenced on 1 July 2003, the hearing of this appeal is governed by s.92 of the Queensland Building Tribunal Act 2000. Section s.92(4) of the Act provides that:
“(4)The appeal is by way of rehearing, unaffected by the Tribunal’s decision on the material before the Tribunal and any further evidence allowed by the District Court.”
- [5]Sub-section 6 of section 92 of the Act provides that on this appeal the District Court may do any of the following:
- (a)Confirm, annul, vary or reverse the Tribunal’s decision; or
- (b)remit the case to the Tribunal for further hearing or rehearing; or
- (c)make consequential or ancillary orders or directions.
- [6]Both counsel accepted that I would approach the hearing of this appeal on the basis that there was an onus on the appellants to identify some error made by the Tribunal in arriving at the decision and to the extent the decision was based on findings of fact including any assessment of the credibility of witnesses, although this court will give respect and weight to the conclusions of the Tribunal, this court will give effect to the proper inferences to be drawn from facts which are undisputed or which having been disputed are established by the findings of the Tribunal. For these principles I was referred to the decision of his Honour Judge McGill in Pointon v Redcliffe Demolitions Pty Ltd (2002) QDC 131. Therefore, I propose to proceed on this basis on the hearing of this appeal.
- [7]The appellants were unrepresented during the hearing before the Tribunal. The Respondent was represented by a lawyer on the first day of the hearing but not the second day.
- [8]There was evidence before the Tribunal that the respondent and the appellants entered into a contract in writing for the construction of the house (the contract). The respondent claimed the terms of the contract were contained in a document described as a “Building Services Authority Domestic Building Contract.” This document became Exhibit 1 in the proceedings before the Tribunal. Exhibit 1 provides that the contract includes the “General Conditions of the Building Services and Authority Building Contract.” The appellants claimed these general conditions were not part of the contract between the parties.
- [9]The contract provided a total price of $94,211.00. This price was made up of a lump sum component of $77,000, prime cost items of $11,711.00 and provisional sums of $5,500. Progress payments provided for in the contract were based on percentages applicable to the lump sum component. For the base stage inclusive of deposit the progress payment was 10% of the lump sum component. For the frame stage the progress payment was 15% of the lump sum component. The respondent claimed each of these stages was reached. The progress claim from the respondent to the appellants and dated 13 October 2001 for the slab stage was $9,421.00. The progress claim from the respondent to the appellants and dated 22 October 2001 for the frame stage was $14,132.00. The total for both stages was therefore $23,553.00.
- [10]By a default notice dated 29 October 2001 from the respondent to the appellants the respondent claimed the appellants were in substantial breach of the contract pursuant to clause 26 of the contract in that the appellants had failed to pay the sum of $23,553 for the slab and frame stages within five working days of the invoices. This notice notified the appellants that if the breach was not remedied within seven working days the respondent might exercise its right to terminate the contract.
- [11]Before 7 November 2001 (which was the date by which the appellants were required to make the progress payments claimed by the respondent) the appellants paid the respondent the sum of $19,441.00. The respondent claimed that as the appellants had not paid the sum of $23,553.00 the appellants were in substantial breach of the contract therefore entitling the respondent to terminate the contract which the respondent did by notice in writing to the appellants dated 7 November 2001.
- [12]There was also evidence before the Tribunal that the appellants had by a notice in writing to the respondent dated 5 November 2001 terminated the contract pursuant to what the appellants had described as “1.2 of the B.S.A Code”. This notice referred to breaches under the code 1.1, 1.3 and 1.4. Reference was also made in this notice to defective construction. This notice from the appellants to the respondent was received by the respondent on 8 November 2001.
- [13]In its application filed in the Tribunal the respondent claimed pursuant to a quantum meruit an amount of $34,562.73 less payments received of $19,441 leaving an amount of $15,121.73. This amount was reduced to $14,577.24 by the Tribunal. In the proceedings before the Tribunal the appellants denied liability for the amount claimed by the respondent and counterclaimed for rectification of defects and damages.
- [14]No further evidence was adduced on the hearing of this appeal.
- [15]The first three grounds of appeal are as follows:
- Without fault on the appellants’ part, the appellants’ witnesses did not give evidence on 11 June 2002.
- By reason of the failure by the appellants’ witnesses to give evidence at the Tribunal hearing:
- (a)the appellants were denied the right to adduce evidence;
- (b)the appellants were not properly heard;
- The learned Tribunal member was in error by:
- (a)failing to adjourn the hearing of the claim and counter-claim to enable the appellants to secure the attendance of their witness;
- (b)proceeding with the hearing of the claim and counter-claim in the absence of the appellants’ witnesses;
- (c)insisting on strict compliance that by the appellants with the requirement to file witness statements prior to being permitted to adduce evidence from such witnesses;
- (d)allowing the respondent to adduce evidence from witnesses whose witness statements were not filed prior to commencement of proceedings or at all;
- (e)failing to require the respondent to put key elements of its case to the appellants in cross examination;
- (f)failing to advise the appellants that it had placed no evidence before the Tribunal in respect of certain items in their counter-claim, and the consequences thereof;
- (g)failing to permit the appellants to tender evidence in the form of quotations for rectification work.
- [16]The transcript shows at the end of the first day of the hearing the Tribunal considered that both parties had come to the hearing badly prepared. It was the Tribunal’s intention to have the evidence of the parties in written form and that the appellants’ response to the respondent’s claim be presented in an orderly manner. Further, the Tribunal informed the appellants that if they wished to claim there were other defects that the Tribunal should take note of, then the appellants would have to have an expert to support them because at that point in time a Mr Clayton who had given evidence said there were not any other defects.
- [17]Further the Tribunal informed the appellants they should determine what they wanted to prove and set matters out in a statement and determine what to challenge regarding the respondent’s case. Consequently, the Tribunal gave directions that the evidence in chief of the appellants be given in written statements.
- [18]Finally, the Tribunal said regarding the female appellant “if you want to be here you are very welcome to sit here with him but you are not required unless you are to be a witness in the proceedings.” (See T 150-153).
- [19]In my opinion the transcript shows the Tribunal regularly assisted the appellants to conduct their defence to the respondent’s claim and to advance the appellant’s counter-claim and made the appellants aware of the procedures expected by the Tribunal for the conduct of the proceedings.
- [20]Further, on 10 May 2002 when Mr Glastonbury on behalf of the respondent gave evidence, he made it clear that it was his wife who would be in a position to say whether the general conditions were given to the appellants at the time of the execution of the contract. The male appellant claimed those conditions were not given to the appellants at the time of the execution of the contract. It is correct that on 11 June 2002 Mrs Glastonbury gave evidence without having provided a witness statement of evidence. Her evidence was to the effect that the general conditions were given to the appellants at the time of the execution of the contract. As the transcript shows, the Tribunal had told the appellants that if Mrs Walker was to be a witness her attendance on 11 June 2002 would be required. It was submitted on behalf of the appellants that the appellants could reasonably have believed the respondent’s case was over on the first day of the hearing and Mrs Glastonbury would not be called as a witness. There is no evidence before me what was the Appellants’ belief. I do not accept the appellants approached the hearing before the Tribunal on the basis of legal considerations of upon whom rested the onus of proof. In my opinion if there was any fault on anyone’s part that lead to Mrs Walker not providing a witness statement or attending the hearing on 11 June 2002, at which time an application could have been made that Mrs Walker’s evidence be taken notwithstanding her evidence was not in the form of a written statement, it was the appellants’ fault.
- [21]In my opinion the appellants were accorded natural justice and the Tribunal made no error as claimed in the first three grounds of the amended notice of appeal.
- [22]The fourth ground of the appeal is as follows:
The learned Tribunal member erred in:
- (a)finding that the Building Services Authority General Conditions of Building Contract formed part of the contract between the appellants and the respondent;
- (b)finding that the payment of an amount of $23,553 was payable by the appellants before 7 November 2001 (the date of purported termination by the respondent);
- (c)finding that the appellants were in breach of contract by virtue of their failure to pay the respondent the amount of $23,553 before 7 November 2001;
- (d)finding the default notice issued by the respondent, dated 29 October 2001 was an effective and compliant default notice pursuant to Condition 26 of the Building Services Authority General Conditions of Building Contract;
- (e)finding that the Walkers did not rectify the purported breach prior to 7 November 2001;
- (f)finding that the respondent was entitled to terminate the contract for the Walkers’ purported breach;
- (g)finding that the respondent’s letter dated 7 November 2001 was effective in lawfully terminating the contract in accordance with Condition 26 of the Building Services Authority General Conditions of Building Contract;
- (h)failing to find that the attempted termination by the respondent on 7 November 2001:
- (i)was wrongful and ineffective; and
- (ii)amounted to repudiatory conduct entitling the appellants to terminate.
- (i)failing to find that the appellants accepted the respondents repudiation and terminated the contract;
- (j)failing to find that the appellants were entitled to damages arising from the respondent’s breach of the contract;
(k)finding that the respondent was entitled to payment from the appellants for the work done on a quantum meruit basis plus profit margin.
- [23]The Act requires that the proceedings are to be conducted with as little formality and technicality and with as much speed as the requirements of the Act and a proper consideration of the matters before the Tribunal permit (see s.41(3)). Further, the Tribunal is not bound by the rules of evidence but it may inform itself in any way it considers appropriate (s.41(4)).
- [24]The Tribunal adverted to the issue of the general conditions throughout the first day of the proceedings and secured a copy of conditions to deal with the issue. On the second day of the hearing, there was evidence from Mrs Glastonbury that the conditions were handed over and it was clear to the Tribunal that the appellants denied this allegation. There is no evidence before me that the conditions that the Tribunal obtained were not those that would have been applicable to a contract at the time the parties entered into the contract. In my opinion unless the appellants showed to the contrary, it should be accepted the Tribunal informed itself that the conditions the Tribunal obtained were those that were applicable to a contract at the time the parties entered into the contract.
- [25]Therefore, in my opinion, the Tribunal did not make any error finding that the general conditions of contract that the Tribunal had obtained formed part of the contract between the appellants and the respondent.
- [26]Regarding the events leading up to the termination of the contract and the respondent’s entitlement to claim pursuant to a quantum meruit, in the decision the Tribunal said:
“Each party purported to terminate the contract. The basis on which the respondent’s asserted a right to terminate is not clear. The applicant subsequently terminated for failure to pay. The appellant now claims on a quantum meruit basis for work performed, plus an undisputed profit margin. It is entitled to payment on that basis.”
- [27]The appellants submit in the circumstances the respondent did not have an entitlement to terminate the contract.
- [28]In my opinion, it is correct to say that the respondent could not claim the amounts claimed for the progress claims for the slab and frame stage. That is because the contract provided that the percentages were to be based on the “lump sum component” which in this instance was $77,000.00. The respondent made the claims based on $94,211.00. Therefore, the progress claim for the slab stage ought to have been $7,700 and for the frame stage $11,550.00, a total of $19,250.00. As the appellants had before 7 November 2001 paid $19,441.00 to the respondent, the respondent had no entitlement to terminate the contract for a failure to pay.
- [29]The appellants submit in these circumstances the respondent repudiated the contract.
- [30]It has been held that a genuine but erroneous view of the construction of the contract does not ordinarily infer an intention to repudiate (Sweet and Maxwell Limited v Universal News Services Limited (1964) 2 QB 699). However, in Summers v Commonwealth (1918) 25 CLR 144 the High Court endorsed the view of Lord Parmoor (Morris v Baron and Co (1918) AC 1 at 41), that the persistent maintenance of an untenable construction of a contract on a matter of essential substance should be regarded as repudiatory.
- [31]In my opinion the respondent repudiated the contract.
- [32]However, the evidence before the Tribunal showed that the appellants had by a letter to the respondent dated 5 November 2001 purported to terminate the contract on the grounds referred to in the notice. This notice pre-dated the respondent’s purported termination of the contract and was received by the respondent a day after the respondent’s purported termination of the contract. The Tribunal found that of all the claims made by the appellants against the respondent the only item the Tribunal was prepared to allow to the appellants was the sum of $500 for the misplacement of a bath-tub. In my opinion, no error has been demonstrated in the Tribunal’s findings in that regard. In my opinion the appellants had no basis to terminate the contract when the appellants purported to do so. In my opinion the appellants evinced an intention no longer to be bound by the contract and therefore repudiated the contract.
- [33]Repudiation will not, of itself, effect the discharge of the contractual obligations of the defaulting party. It is necessary for the innocent party to accept the repudiation if the contract is to be brought to an end. (McDonald v Dennys Lascelles Limited (1933) 48 CLR 457, 476-477 per Dixon CJ; Heyman v Darwins Limited (1942) AC 356, 978 per Lord Wright). The question whether or not a party has elected to rescind is one of fact. An election to rescind must involve an unequivocal assertion by the innocent party that he regards himself as no longer bound by the contract as a result of the breach (Halsbury’s Laws of England 4th Ed. Vol 9, para.556).
- [34]Despite the appellants’ letter to the respondent dated 5 November 2001 purporting to terminate the contract, the respondent wrote to the appellants by letter dated 8 November 2001 rejecting the appellants’ termination of the contract. Further, the respondent’s statement of claim filed in the Tribunal claimed that the respondent did reject the appellants’ termination of the contract and advised the appellants that the respondent had already terminated the contract.
- [35]On the other hand the appellants have always maintained that the basis for the termination of the contract were the complaints the appellants had against the respondent regarding the formation of the contract and the performance of the works by the respondent.
- [36]In my opinion, both parties repudiated the contract and neither accepted the other party’s repudiation of the contract. As Asquith LJ said in Howard v Pickford Tool Co Limited (1950) 1 KB 417 at 421:
“An unaccepted repudiation is a thing writ in water and of no value to anyone: it confers no legal rights of any sort or kind.”
- [37]It was submitted by the respondent that even if the respondent had no entitlement to terminate the contract on the ground of the appellants’ failure to pay the progress claims, nevertheless the respondent was entitled to terminate the contract on the basis of the appellants’ purported termination of the contract as notified by the appellants in their letter to the respondent dated 5 November 2001. For this submission the respondent relied upon Shepherd v Felt and Textiles of Australia Limited (1931) 45 CLR 359, 377-378.
- [38]However, in my opinion the principle referred to in Shepherd’s case does not assist the respondent here. The respondent has always maintained that the basis for the termination of the contract has been the failure of the appellants to pay the progress claims in the amount claimed. Similarly, the appellants have always maintained that the basis for the termination of the contract have been the complaints the appellants had against the respondent regarding the formation of the contract and the performance of the works by the respondent.
- [39]In my opinion, although both parties did not accept the repudiation of the contract by the other party neither party regarded the contract as being still on foot and both parties intended that the contract should not be further performed. Therefore, the parties are to be regarded as having so conducted themselves as to abandon or abrogate the contract (D.T.C. Nominees Pty Ltd v Mona Homes Pty Ltd (1977-78) 158 CLR 423, 414). In my opinion in these circumstances the appellants did not have an entitlement to claim against the respondent damages for repudiation of the contract.
- [40]Therefore, in my opinion the findings the appellants submit the Tribunal ought to have made were not open to be made by the Tribunal. The question remains, could the Tribunal allow the respondent’s claim on a quantum meruit basis.
- [41]It has been held in Sumpter v Hedges (1898) 1 QB 673 that where the plaintiff’s breach or repudiation led to termination a restitutionary claim to recover reasonable remuneration cannot be made. In my opinion the rule in Sumpter v Hedges, as it has been called, does not apply in the circumstances because the respondent’s repudiation did not lead to the termination of the contract.
- [42]In Pavey and Matthews Pty Ltd v Paul (1986) 162 CLR 221, it was held that a licensed builder was not prevented from bringing an action upon a quantum meruit for the value of work done and materials supplied under an oral building contract despite a legislative prohibition providing that a building contract was not enforceable unless the contract was in writing. At ps.227-8, Mason J and Wilson J said:
“Deane J, whose reasons for judgment we have had the advantage of reading, has concluded that an action on a quantum meruit, such as that brought by the appellant, rests, not on implied contract, but on a claim to restitution or one based on unjust enrichment, arising from the respondent’s acceptance of the benefits accruing to the respondent from the appellant’s performance of the unenforceable oral contract.
……..
Once the true basis of the action on a quantum meruit is established, namely execution of work for which the unenforceable contract provided, and its acceptance by the defendant, it is difficult to regard the action as one by which the plaintiff seeks to enforce the oral contract. True it is that proof of the oral contract may be an indispensable element in the plaintiff’s success, but that is in order to show that:
- (a)The benefits were not intended as a gift, and
- (b)That the defendant has not rendered the promised exchange value ……… The purpose of proving the contract is not to enforce it but to make out another cause of action having a different foundation in law.”
- [43]Further, at p.263 Deane J said:
“What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or ‘enrichment’ actually or constructively accepted. Ordinarily, that will correspond to the fair value of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied).
…. More relevant for present purposes is the special category of case where restitution is sought by one party for work which he has executed under a contract which has become enforceable by reason of his failure to comply with the requirements of a statutory provision which was enacted to protect the other party. In that category of case, it would contrary to the general notions of restitution or unjust enrichment if what constituted fair and just compensation for the benefit accepted by the other party were to be ascertained without regard to an identifiable real detriment sustained by that other party by reason of the failure of the first party to ensure that the requirements of the statutory provision were satisfied.”
- [44]In my opinion the decision of the High Court in Pavey and Matthews v Paul permitted the respondent to claim against the appellants on a quantum meruit basis. Therefore the Tribunal made no error concluding that the respondent was entitled to claim against the appellants on a quantum meruit basis.
- [45]The fifth ground of appeal is as follows:
The learned Tribunal member erred in dismissing the appellant’s counter-claim for damages;
- (a)in relation to the altered system of pest barrier;
- (b)in relation to the power pole; and
- (c)for the lowering of the site.
- [46]In my opinion the Tribunal did not err in dismissing the appellants’ counter-claim for damages in the respects referred to in this ground of appeal. With respect to the altered system of pest barrier it was open to the Tribunal to conclude in the context of the evidence of Mr Clayton that he was referring to an alternative system and not one that was “part of the barrier”. With respect to the remaining matters, the Tribunal gave reasons for not finding in the appellants’ favour. In my opinion the Tribunal’s reasons do not reveal any error.
- [47]The sixth ground of appeal is as follows:
The learned Tribunal member was in error in:
- (a)accepting the respondent’s invoices as being a reasonable charge for materials and work alleged to have been done by the respondent and/or his subcontractors;
- (b)failing to give the appellants the opportunity to properly examine those invoices or to cross-examine the authors of those invoices.
- [48]In my opinion it was open to the Tribunal to conclude that the respondent’s invoices were a reasonable charge for the materials and work alleged to be done by the respondent and/or his sub-contractors. Mr Glastonbury’s evidence was that the money was spent and the invoices were corroborative of that evidence. The Tribunal informed the male appellant of his entitlement to challenge Mr Glastonbury on what he had spent and arranged for a copy of the exhibit relevant to this issue to be provided to the male appellant. The appellants did not call contradictory evidence. In my opinion the appellants were afforded the opportunity to examine these invoices and to cross-examine Mr Glastonbury about the invoices.
- [49]The seventh ground of appeal is as follows:
The learned Tribunal member was in error in finding that:
- (a)the amount that should be allowed for work performed on a quantum meruit basis should be $34,018.24;
- (b)the balance owing by the appellants to the respondent for the house was $14,577.24.
- [50]In my opinion the Tribunal did not err regarding these issues. There was evidence upon which the Tribunal could make these findings. It was open to the Tribunal to make these findings.
- [51]The eighth ground of appeal is as follows:
The learned Tribunal member was in error in failing to find that the plans approved by the council were the plans relied upon by the appellants and the respondent and therefore dismissing the appellants’ counter-claim for:
- (a)the installation of the vanity units in the wrong position;
- (b)the portico not being built to specifications;
- (c)the room sizes not being built to specifications.
- [52]Again in my opinion there is no error revealed in the approach taken by the Tribunal to the evidence and it was open to the Tribunal to come to the conclusions the Tribunal reached.
- [53]The ninth ground of appeal is as follows:
The learned Tribunal member was in error in:
- (a)failing to find that the power pole was in the incorrect position;
- (b)failing to find that the respondent was responsible for:
- (i)wall timbers and walls not straight;
- (ii)main beam notched in garage;
- (iii)not all timbers in frame treated appropriately to prevent termite infestation.
- (c)failing to find that the pipe work to the septic system was not properly installed;
- (d)failing to find that the septic treatment plant was not sited in the correct location;
- (e)failing to find that the septic treatment plan required rectification;
- (f)failing to make findings about various other items including:
- (i)the flood damage;
- (ii)incorrect sized storm pipe installation;
- (iii)the respondent’s failure to install cyclone rods;
- (iv)the loss of space due to pipes in the closet instead of the wall;
- (v)the respondent’s failure to provide keys for the back sliding door;
- (vi)unauthorised modification of the house design;
- (vii)other changes to the specifications;
- (viii)variations for hot water system and stove;
- (ix)levelling of the site.
- (g)making no findings as to whether damages were payable by the respondent in respect of each of these items;
- (h)making no findings in relation to the quantum of damages in respect of each of these items.
- [54]The Tribunal considered the items of complaint raised by the appellants before the Tribunal. Regarding these complaints it was open to the Tribunal to come to the conclusions that the Tribunal reached. Regarding some of these complaints the Appellants did not adduce evidence that would permit the Tribunal to make a finding as to what damages were payable and on that basis it can be understood by way of example that the Tribunal said that there was “no evidence before the Tribunal which enables me to make findings about the allegations of flood damage, incorrect size storm pipe installation, failure to install cyclone rods, loss of space to due to pipes in closet instead of wall or failure to provide keys for back sliding door.” Therefore, in my opinion the Tribunal made no error with respect to the matters raised in this ground of appeal.
- [55]Therefore, in all the circumstances I conclude the Tribunal did not make any error in the decision delivered on 26 July 2002.
- [56]Therefore I dismiss the appeal.