Tyler v Queensland Building Services Authority
[2010] QDC 40
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- Unreported Judgment
- Tyler v Queensland Building Services Authority[2010] QDC 40
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Tyler v Queensland Building Services Authority[2010] QDC 40
Tyler v Queensland Building Services Authority[2010] QDC 40
DISTRICT COURT OF QUEENSLAND
CITATION: | Tyler v Queensland Building Services Authority [2010] QDC 40 |
PARTIES: | STUART TYLER appellant V QUEENSLAND BUILDING SERVICES AUTHORITY respondent |
FILE NO/S: | BD 634/09 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 25 February 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 January 2010 |
JUDGE: | Ryrie DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – where the Tribunal reviewed administrative decision of the Queensland Building Services Authority directing the appellant to rectify and/or complete certain building works – whether the Tribunal Member’s decision involved an error of principle or resulted in a substantial injustice to the appellant Commercial and Consumer Tribunal Act 2003 (Qld), ss 100(1), 100(8) & 101 Queensland Building Services Authority Act 1991 (Qld), ss 70, 71, 72 & 86(1)(e) Adam Peter Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170, applied Albem Pty Ltd v PKF Qld Pty Ltd [2004] QDC 013, applied Capable Consulting (Aust) Pty Ltd v Garget [2009] QDC 404, applied Clements v Flower [2005] QDC 50, applied |
COUNSEL: | Mr R Anderson for the appellant Mr G I Thomson for the respondent |
SOLICITORS: | Crasso Searles Romano for the appellant Queensland Building Services Authority for the respondent |
Introduction
- [1]The appellant (‘Mr Tyler’) seeks leave to appeal from a decision of the Commercial and Consumer Tribunal (‘Tribunal’) of 6 February 2009 and, in the appeal proper, an order that the decision made by the Tribunal, set out at paragraph 68 (1) (a),(b),(c) and (g) respectively be set aside. The appellant takes no issue with the correctness of the Tribunal’s decision as it relates to paragraph 68 (1) (d), (e) and (f). In accordance with the usual practice of this court, the application for leave was argued together with the appeal.
- [2]This matter was originally before the Tribunal as review proceedings pursuant to s. 86(1)(e) of the Queensland Building Services Authority Act 1991 (QBSA Act) and s. 101 of the Commercial and Consumer Tribunal Act 2003 (CCT Act). Mr Tyler had sought review of an administrative decision of the Queensland Building Services Authority (‘QBSA’) of 11 April 2008 directing him to rectify and/or complete certain building works. That direction was given pursuant to s. 72 of the QBSA Act. The Tribunal Member who heard the review application subsequently published his reasons on 6 February 2009.
Leave to Appeal
- [3]Leave is required to appeal under s 100 of the Commercial and Consumer Tribunal Act 2003, and the appeal can be only on error of law or excess or want of jurisdiction. The test laid down by Wilson DCJ (as he then was) in Clements v Flower [2005] QDC 50, that an appellant must show there is a reasonable prospect of demonstrating error of law on the part of the Tribunal Member who constituted the Tribunal and that it could have material affected the decision, has frequently been followed (see McGill DCJ’s observations in Capable Consulting (Aust) Pty Ltd v Garget [2009] QDC 404 at paragraph [3]). As His Honour also observed, it may also be relevant in a particular case to consider the gravity of the case, the amount in dispute, any public interest in the result of the particular case, or whether any question of law raised is one of wider importance than between the parties to the immediate dispute. Any question of injustice is also a relevant and necessary consideration in applications for leave to appeal: Adam Peter Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170. It is upon this basis, that the appellant contends that the decision appealed from involves not only an error of principle, but that a substantial injustice will result to the appellant if it is allowed to stand. The appellant submits that in those circumstances, leave ought to be granted and the appeal proper be allowed.
- [4]Helpful outlines of written submissions (marked as exhibits ST 1 and QBSA 1 respectively) were received for the court’s assistance. Oral submissions were also made by counsel representing the respective parties for the court’s consideration.
- [5]The appellant makes no challenge in respect of any of the findings of fact made by the Tribunal Member as they appear in his Reasons for Decision. Indeed, the appellant relies on those findings to argue that, even on their face, it is adequately demonstrated that the Tribunal Member’s discretion miscarried when he made the orders, the subject of paragraph 68 (1) (a), (b), (c) and (g) respectively.
- [6]In support of that submission, the appellant referred to the findings of fact made by the Tribunal Member relevantly at paragraphs 49, 50, 51 and 59 as they related to the subject matter contained in paragraph 68 (1) (a), (b), (c) and (g), (also referred to in the body of the Tribunal Member’s Reasons for Decision as Items 2, 3, 4 and 12 respectively). The appellant advised this court that it is was not necessary to look beyond those Reasons when considering whether the work ordered to be performed by Mr Tyler was in fact ‘further’ work yet to be completed by him as contemplated by the contract, as opposed to merely the rectification by him of ‘defective’ work (see 5 of ST 1). The appellant argued that the relevant paragraphs referred would lead to the conclusion that the work which Mr Tyler was in fact being ordered to perform was in fact ‘further’ work that was yet to be completed by him under the agreed terms of the contract and were not merely an order requiring him to rectify work that was by its’ nature, ‘defective’. That distinction, the appellant submits, is of real significance in that he submits that no order made under s. 72 of the QBSA Act to complete further work under the contract ought to be made absent an order for payment in respect of it (see point 8 of ST 1).
- [7]In support of that argument, the appellant submits that even though he concedes there is clear statutory power to make the type of orders the Tribunal Member made under s. 72 of the QBSA Act, in particular, by his acknowledgment that the definition of ‘rectify’ contained in Sch 2 Dictionary also includes the ‘completion of incomplete building work’, the orders still should not have been made absent an order for payment also being made. The appellant submits that because the Tribunal Member did not make any consequential order for payment in favour of Mr Tyler upon the completion of the work ordered by him, the end result to Mr Tyler is unfair. In other words, a substantial injustice will result to Mr Tyler if he is required to complete any ‘further’ work that was to be completed under the terms of the contract without being paid for it.
- [8]A careful reading of the relevant findings set out in the Reasons for Decision at paragraphs 49, 50, 51 and 59 respectfully and the subsequent conclusions which the Tribunal Member made were, in my mind at least, open on the evidence available. The work, the subject of the relevant orders made by the Tribunal Member was work that was clearly incidental to the agreed contract and could not be said to be further or additional work that was outside the terms of the contract as contemplated by both parties.
- [9]For example, in paragraph 49, the Tribunal Member accepted that the relevant plans to renovate the house required that all steel had to be hot dip galvanised, and even though that process could not be done on site, the steel still had to be painted, a fact accepted by the appellant himself. As that painting had not been done, it was open for the Tribunal Member to make the order which he did in respect of that work, properly characterising it as work which was either defective or still incomplete. In respect of paragraph 50, the Tribunal Member, having correctly found that the applicant had unlawfully brought the contract to an end (see paragraphs 37 to 40 respectively), was entitled to find that any failure by Mr Tyler to subsequently install, as required, the concrete upstands surrounding the steel posts at ground level was ‘incomplete’ work. That characterisation is also true, in my mind, in respect of the work the subject of paragraphs 51 and 59. The collar flashings that were to be inserted for the purpose of ensuring waterproofing, after the roof had been painted, also falls within the category of ‘incomplete’ work. So does, in my mind, the vermin proofing. The Tribunal Member, having accepted Mr Tyler’s assertion that there was a ceiling yet to be installed, presumably by him within the agreed terms of the contract, was entitled to find that it was work that was still ‘incomplete’. It follows, that no error of principle has been demonstrated on this ground.
- [10]In further support of his submissions, the appellant also referred to the terms of the original contract and any subsequent agreement which arose as a result of a discussion between the parties which subsequently took place on site. He pointed out that Mr Tyler would have been entitled to receive payment for any ‘further’ work that was still to be performed by him under those respective agreements. That is to say, he would have been entitled to have been paid for the work had he simply completed it in accordance with the terms of those agreements. The appellant argues that in those circumstances, it would be unfair to allow the Tribunal Member’s orders to stand, particularly where no consequential payment order was made in favour of Mr Tyler for any work that he was now being directed to complete under the terms of the contract.
- [11]Even if this court was to accept for the moment this submission, that in truth, the work which Mr Tyler was now been ordered to perform could more properly be characterised as work that was simply work that was yet to be completed under the terms of the contract as opposed to the rectification of ‘defective’ work as such, regrettably I am not persuaded that it follows that this appeal ought to be allowed in any event.
- [12]In coming to that conclusion, I have taken into account the following matters:
- s. 72 of the QBSA Act allows for an order to be made if the relevant body is of the opinion that the building work in issue is either defective or more significantly, ‘incomplete’, which it clearly was in this case.
- s. 72 is not limited by or subject to the terms of any contract entered into between the parties (s. 72(2))
- s. 72 does not require, when making an order to rectify defective work or significantly, requiring the completion of incomplete building work, that it be the subject of any another order, such as an order that payment be made to the person who subsequently carries out that work.
- The Tribunal Member’s own consideration of certain relevant facts, namely that he noted that Mr Tyler had in fact been paid up in full under the contract up to the point when he (wrongfully) terminated it (see paragraph 61 of the Reasons for Decision, a finding open on the evidence) and that it was Mr Tyler who had failed to hold up ‘his end of the bargain’ in respect of the subsequent agreement which took place as a result of the discussion on site (see paragraphs 46, 47 and 63 of the Reasons for Decision).
- The fact that it was open on the evidence before the Tribunal Member to find that Mr Tyler had wrongfully terminated the contract (see paragraphs 37 to 40 of the Decision in this regard) and as such, any argument now that Mr Tyler’s obligation to undertake any further work, once the contract had been lawfully terminated by him was therefore extinguished, cannot, in my mind, be maintained (see point 9 of ST 1).
- The fact that the Tribunal Member was not able to (nor was he required to by relevant statute) to make any consequential order for payment in favour of Mr Tyler particularly in circumstances where the owner of the property was not a party to the proceedings. That is so even if it was accepted by this court (which it is not) that the contract had in fact been lawfully terminated by Mr Tyler.
Conclusion
- [13]Having determined then that the Tribunal Member was entitled to make the orders which he did under s. 72 of the QBSA Act and that no substantial injustice or error of principle has been demonstrated, it follows that the appeal must be dismissed.
Costs
- [14]s. 100(8) of the CCT Act provides that an appellant must pay the costs of an appeal, including the costs of any transcript. As observed by Wilson DCJ in Albem Pty Ltd v PKF Qld Pty Ltd [2004] QDC 013 at paragraph [18], the words contained in the relevant section must be afforded their plain meaning. Accordingly, I consider that the usual order ought to be made, that the appellant be required to pay the respondent’s costs of and incidental to the appeal to be assessed, unless the parties wish to be heard on this issue.
- [15]I have also come to the conclusion that any costs reserved before the Tribunal should be remitted back for its’ consideration in accordance with ss 70 and 71 of the CCT Act, as an examination of the original file does not suggest that this question has been disposed of.
Orders
- Leave to appeal refused.
- Appellant to pay the respondent’s costs of and incidental to the appeal to be assessed.
- Case remitted to the Tribunal for hearing in respect to the costs reserved by the Tribunal Member on 6 February 2009.