Roberts v Nunn Design Construction Buildings
[2010] QDC 130
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Roberts v Nunn Design Construction Buildings[2010] QDC 130
Roberts v Nunn Design Construction Buildings[2010] QDC 130
[2010] QDC 130
DISTRICT COURT
CIVIL JURISDICTION
JUDGE JONES
No 1949 of 2009
Shane Gavin ROBERTS AND Jacqueline Mary ROBERTS | Appellants |
and | |
Adrian NUNN TRADING AS NUNN DESIGN CONSTRUCTION BUILDINGS | Respondent |
BRISBANE
DATE 25/03/2010
JUDGMENT
HIS HONOUR: On 18 June 2009 the learned member of the then Commercial Consumer Tribunal handed down his decision in this matter. His reasons for judgment extended over 27 pages and contained 119 paragraphs.
It was submitted on behalf of the appellant that of those 119 paragraphs, 100 or so were largely recitals of the respective submissions of the parties below. This characterisation was not seriously challenged in any way by the respondent here today.
The hearing was a building dispute under a domestic building contract. It was conducted over a period of four days. The appellant was represented by a solicitor and the respondent by counsel.
There are ten grounds of appeal. I don't intend to refer to all of those now but it is necessary to deal with most. Appeal ground number 2 is that the Tribunal erred in not providing adequate reasons for its decision.
Appeal ground 3 is the Tribunal erred in deciding the amount of $30,000.60 be paid to the respondent.
Ground 4, the Tribunal erred in allowing the past counterclaim only to the extent of $8,344.20.
Ground 5, the Tribunal erred in failing to find that the respondent was not entitled, on a proper construction, of the contract the Domestic Building Contracts Act 2000 to claim for final payment.
Ground 6, the Tribunal erred in finding that the construction period under the contract ran from the date for commencement determined under the contract rather than from the date of commencement in accordance with clause 8.3 in item 10 of the contract.
Ground 7, the Tribunal erred in finding that the respondent was entitled to extensions of time under the contract in circumstances where there was no finding that the extension of time were reasonable or otherwise came within the provisions of the contract.
And Ground 9, that the Tribunal erred in allowing sums for variations for provisional and prime cost amounts when the respondent was not entitled under the contract and the Domestic Building Contracts Act 2000.
Ground 2 dealing with the adequate reasons was really the only ground covered in substance before me today. It also appears to me that the results in respect of grounds 3 and 4 are largely dependent on the outcome of the other grounds of appeal.
Grounds 5 to 10 at first blush appear to me to be more likely to be dominated by issues of fact rather than law but it is uncertain and it cannot be discounted that questions of law might not be materially involved. In any event, it is well established that a failure to provide adequate reasons, if shown, does amount to an error of law.
In Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSW CA 2003, his Honour Justice Ipp said in part in paragraph 30:
"Reasons for judgment disposing finally of a trial must contain the facts found and the Judge's entire reasoning process. Any departure from this rule (by allowing the incorporation by reference to the submissions of counsel without setting those submissions out) would contravene the rule that justice must not only be done but must be seen to be done. There are many other objections in principle to such a practice. It could give rise to an impression that the Judge has not properly grappled with the issues in the case."
His Honour then went on further to say:
"It would tend to frustrate the losing parties right to appeal, particularly if the cost of counsel's submissions on which the Judge accepted were not identified with precision. It would diminish the capacity of the reasons to indicate to the parties the extent to which their arguments have been understood and accepted, it would detract from judicial accountability, and it would prevent the public from understanding properly the basis on which the decision was given."
It was submitted on behalf of the respondent that some distinction needs to be made or allowance made for decisions of tribunals of the type we are dealing with here today when compared to decisions of superior Courts. I accept that submission. But notwithstanding that, I find that this ground of appeal is made out but I will come back to that point in a moment.
The issue of not only must justice be done but must be seen to be done is a significant one. In Soulemezis v Dudley Holdings Pty Ltd, a decision of the Court of Appeal of New South Wales, 10 NSW LR at 247, his Honour Justice McHugh then sitting as a Justice on the Appeal Court of New South Wales said at page 281, in part:
"If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done."
I have also been referred to a fairly recent decision of the Court of Appeal of Queensland in Drew v Makita Australia Pty Ltd [2009] QCA 66 where his Honour Justice Muir at paragraphs 57 and 58 said:
"A Court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law."
If I could just pause there, while that passage refers to an appeal lying from a Court of law, I see no reason why that would not apply to a tribunal in circumstances where appeal lies. Then to continue with the quote of that judgment, his Honour went on to say:
"The rationale for the requirement that Courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with "a justifiable sense of grievance" through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide "the foundation for the acceptability of the decision by the parties and the public" and to further "judicial accountability"."
Various tests or propositions were referred to by his Honour in the Makita case and I don't intend to go through them all but it seems to me that at the very least, the decision maker is required to provide a broad outline of his or her reasoning on which he or she acted.
Two further matters of principle before moving on are that recently the Court of Appeal of Queensland in The Chief Executive and The Department of Natural Resources and Mines v Kent Street Pty Ltd & Ors [2009] QCA 399 in the decision of his Honour Justice P Lyons he cited with approval a previous decision of his Honour Justice Keane where it was observed that a requirement for adequate reasons was that it demonstrated that the litigation between the parties had been determined fairly and rationally.
Finally on this topic, I also note that section 91 of the Commercial and Consumer Tribunal Act of 2003 which was then applicable, required that a decision of the Tribunal not only had to be in writing but also had to contain reasons for the decision.
Bearing these general but important principles in mind, I now turn to the decision under appeal and the grounds of appeal. Within the grounds of appeal specific complaints are made about the findings of the Tribunal concerning entitlements to final payment. The respondent submits that this finding flows from other findings concerning the commencement date which itself is challenged in ground 6 of the appellant's notice of appeal and the finding of the Tribunal concerning practical completion. This is no doubt correct.
In paragraph 111 of his reasons, the learned Member said:
"Under the contract, the date for commencement of works was to be determined under clause 8. Clause 8 required the builder to commence work on the land within 10 days of receiving all necessary building and/or planning approvals required pursuant to clause 4.1. Building approval was obtained on 6 March 2006 since the work was progressing on 6 March.
And then in paragraph 112 the Member went on to say:
"Item 8 provided for the construction period to be 164 days. On the basis of the commencement date being
6 March 2006 the completion date under the contract was
17 August 2006."
However, at paragraph 21 the learned Member directed himself to the fact that actual works had physically commenced on 21 February 2006. And then at paragraph 22 went on to set out in summary form the position of the appellant in this appeal on that issue. I do not intend to read those submissions but would note that they raise apparently quite substantive matters.
The reasons given by the learned Member below do not, in my opinion, reveal why the respondent's case in fact or law was preferred or perhaps to put it more accurately, why the appellant's case on this particular topic was rejected. The terms of the contract itself do not seem to rule out the possibility of the appellant's case concerning the commencement date being at the very least arguable.
In respect of the respondent's entitlement to final payment, significant arguments were again raised by the appellant. The completion payments are dealt with in some detail at paragraphs 43 to 50 of the decision below and then further at paragraphs 106 to 110.
At paragraph 50 the learned Member summarised the appellant's arguments on this issue. Five substantive matters were raised, raising on my reading of them, substantive matters of fact and law.
On behalf of the respondent, it is submitted that the decision of the Member below on this issue was based upon an assessment of the evidence and an acceptance of the submissions of the respondent. That may be so but I have not been directed to any part of the reasons where it is explained why the respondent's submissions were preferred to that of the appellants. Nor is there otherwise any explanation as to why, on the relevant facts and/or the law, the learned Member reached the conclusion that he did. No broad outline of the reasoning of the learned Member is revealed or otherwise able to be ascertained.
Turning then to ground 7 of the notice of appeal, this appeal is directed at the learned Member's findings concerning extensions of time. This issue was also a matter of considerable conflict and debate below. At paragraph 23 the learned Member observed:
"The applicant asserts that the building works were delayed because of extremely heavy rainfall and difficulties in engaging tradesmen and subcontractors due to the reconstruction of Innisfail as a consequence of Cyclone Larry and market forces."
The matter is then addressed at paragraph 113 where the learned Member says:
"The applicant asserted is entitled to an extension of time because of heavy rainfall and difficulties in engaging tradesmen. I accept that the applicant was entitled to the extensions as submitted by the applicant and accordingly, the date for practical completion was 26 March 2007. In that regard, I accept the submissions made on behalf of the applicant."
On behalf of the appellant it is submitted that there were significant conflicts in the evidence below concerning the number of rainfall affected days and just how cyclone Larry and inclement weather otherwise impacted on building in the Innisfail area. That those sorts of disputes of fact existed below was not challenger by Mr Collins today.
The reasons of the learned Member below do not reveal how these disputes of fact were resolved or why the respondent's submissions were preferred to that of the appellant, nor how the respondent's entitlements, if any, were triggered pursuant to clause 15(1) of the contract between the parties. In this regard, I accept the appellant's submission on this matter but it is not possible to discern the underlying reasoning which led the learned Member to the conclusion that he articulated in paragraph 113.
The next matter that I wish to deal with in some detail is the defects claim. In his reasons at paragraph 118 the learned Member says:
"With respect to the defects claim, I had the benefit of understanding the claims with a view. Having regard to the evidence called on both sides concerning the defects claim and the submissions made, I allow the following claims."
The learned Member then goes on to identify in subparagraphs (A) to (H) the claims allowed.
On behalf of the respondent, it is said in the written submissions filed on its behalf that:
"It is submitted that the Member set out all of the alleged defects claimed by the applicants from paragraph 77 to 102 of the decision. The Member has identified those claims he has allowed in paragraph 118 and set out that he had the benefit of a view. It is submitted that the applicants have not demonstrated an error of law as the decision was based on an assessment of the evidence and on an acceptance of the submissions of the parties and it is further submitted that sufficient reasons have been given."
However, the reasoning of the learned Member does not reveal how the view assisted him in reaching his conclusions, nor does it reveal which submissions and/or evidence relied on by the parties, that is by either side, was accepted and which were rejected. No explanation was given as to why the claims identified in subparagraphs (A) to (H) of paragraph 118 were accepted and why some of the others identified in paragraphs 80 to 102 of the reasons were rejected. For example, the cooktop, the panel lift door and the lighting. In respect of the latter matter, that is itself the subject of a separate ground of appeal.
Also of some relevance here is that in the reasons below at paragraph 41(C) it is said that one of the issues as to damage is whether the respondent, that is the appellants here, are entitled to claim for alleged defects totalling $21,433.30. However, at paragraph 79 where the learned Member is further considering this matter, it is said:
"The respondents submit that they are entitled to claim the amount of $6,689.20 in respect of various defects and omissions."
No explanation is given as to how the quantum involved flowed from in excess of $21,000 to just under $7,000. Some explanation as to what might have happened was given by the Bar table but that is not a complete answer to the shortcomings that I have already referred to.
I accept the submission that any alleged error of law in cases such as this must be one that could materially affect the decision under challenge. While I am not able to say with any confidence just to what extent the error might affect the decision below, on balance, I accept the submission made on behalf of the appellants that the correction of the error would be likely to materially affect the outcome of the case. In this regard it is my opinion that, within reason, when deciding if a material difference is likely, a sense of proportionality is relevant. That is, what might constitute a material difference in a case involving $30,000 is unlikely to be considered material in a case involving $300,000.
I also accept that, as I have already said, that the reasons given by a Tribunal of the kind involved here need not be as comprehensive and detailed as would be expected by a superior Court. But in my opinion, they must still be sufficient to provide a broad outline or basis for the conclusions reached, otherwise it is not able to be ascertained whether natural justice or procedural fairness has been provided for.
In this case there may well be very good reasons for the conclusions reached but they do not appear in the judgment. It is for these reasons that I've made the orders that I already have.