Arber v Walls Hand Crafted [2025] QCATA 104

As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. An Appeal Tribunal would not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling interferences. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146

• [7] The grounds of appeal are not specific, but rather a submission about the credit of the respondent and a reference to new evidence to substantiate the applicants' claim. In attempting to identify error in the adjudicator's decision, by reference the reasons and evidence before him, the applicants in the appeal are attempting to relitigate their whole case.
• [8] As I have already mentioned, an application for leave to appeal is not a fresh hearing of the application on the merits, having regard to additional "fresh" evidence filed in the appeal.

• [9] In particular as noted in the "grounds" the applicants rely on new or fresh evidence Firstly, a two page statement[6] from Tony Thorogood, a sales representative for Calce Company Pty Ltd, the company that supplied the microcement coating. Secondly, a statement of evidence from Mr Hardie, a qualified plasterer dated 9 April 2024. He inspected the work and commented on the finish and observations as to water spotting and ponding. Also, mesh showing through the coating. He also has provided an expert opinion as how microcement is to be applied. There is a third piece of evidence being a short email statement builder, Ashley Glover, who say the builder paid the respondent to 'make repairs to the falls". Also he was paid to redo the floor for which he was paid.
• [10] It is sometimes difficult for some self-represented litigants to appreciate that when seeking to lead new or fresh evidence in appeals, the appeal tribunal is constrained, as are the courts, by judicial authority as to the circumstances when fresh evidence can be relied upon in an appeal. The leading case regularly referred to establish special grounds to admit fresh evidence in an appeal is Clarke v Japan Machines (Aust) Pty Ltd [1984] Qd R 404 at 408. It was recently cited with approval in the Court of Appeal in Chapel of Angels Pty ltd & Ors v Hennessey Building Pty Ltd & Ors [2022] QCA 232. The court said at [38]:

The test of "special grounds" has been long settled: Clarke v Japan Machines (Aust) Pty Ltd [1984] 1 Qd R 404 at 408. Three conditions must be fulfilled:

(a) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and

(c) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

• [11] Even though there is no filed application to lead fresh evidence by the applicants which is usually necessary, the respondent has partly responded to the fresh evidence. He challenges some of the statements made by Mr Thorogood, in particular about chaulking the joints and water testing before this was done. There is no response to the statement of Mr Hardie.
• [12] Of the three conditions referred to in Clarke above, and having read the additional statements constituting the fresh evidence, conditions (b) and (c) would be satisfied. However, it is (a) which is problematic for the applicants. Mr Thorogood did provide a brief statement for the hearing with photographs which the adjudicator referred to. He could easily have provided more detailed evidence as contained in the new statement before the hearing, or even if he was made available to give evidence at the hearing.
• [13] As for Mr Hardie, he carried out, or supervised, the rectification work and therefore he could have provided the evidence contained in his statement at the hearing. In fact it was critical evidence, in my view, not only to establish the work was done but also the value of the work for assessing damages. All the applicants relied upon was the invoice, as the adjudicator noted.
• [14] Mr Grover was another obvious witness to establish the work done by the respondent. There was no evidence from him.
• [15] I have therefore concluded that all of the fresh evidence sought to be relied upon by the applicants could have been obtained with reasonable diligence for use at the primary hearing. As a consequence of this decision, I do not, and cannot, rely on the fresh evidence in determining whether leave to appeal should be granted, and of course the substantive appeal if leave is granted. However, there is a greater problem with jurisdiction discussed below.

• [16] Some further background is necessary to answer the next question on jurisdiction. On 5 November 2022 the respondent provided a quotation for the job, including other wet areas, for a total cost of $15,036.00. The coating work was carried out after renovation work was complete. The applicants were dissatisfied with the work and made a complaint to the Queensland Building and Construction Commission on 9 March 2023. After some negotiations, the compliant in respect of the wet areas, other than the main bathroom was resolved.
• [17] The main problem with the bathroom, as I perceive it from the evidence, was that the falls on the floor were not correct. This caused ponding of water and some pin hole bubbling in the microcement coating. The falls were the responsibility of the builder, Ashley Grove of Grove Built. The respondent agreed to carry out rectification work by re-coating the floor with microcement in early March 2023. The respondent relies on this email[7] to the applicants' builder Ashley Grover, he said:

Hi Ash, this text is to note that the alterations I am making to the screeded floor prior to the microcement. Please be aware that I am not responsible for the falls and/ or any water ponding that may occur after finishing in microcement as I am only following the screeded floor that had already been placed down.

• [18] In response to this text, Mr Grove confirmed that the respondent should proceed with the "alteration to the floor as discussed". The respondent then proceeded to do the work.
• [19] The timing of this work is best described in the evidence of Ms Arber:[8]

On 28th of the 1st 2023, Michael spoke to Tony [Thorogood] about the repairs. On the 30th of the 1st 2023 Michael came for an onsite inspection and stated that repairs would be required and he would come back to complete them. On the 2nd of February 2023, her returned to start the repairs. On the 3rd of the 2nd, he continued. On the 6th of the 2nd - sorry, on the 7th of the 2nd 2023, he returned to complete works and told us - and they were finished then. We agreed to leave it five days prior to water testing, and that was the first time he told us that the bathrooms would need chaulking.

• [20] Although not clear, it seems he did make some adjustment to the falls. However, after this further work there were still the problems with ponding and bubbling.
• [21] The applicant engaged with Mr Thorogood a sales representative of the product manufacture Calce Company, to address this issue. Unbeknown to the applicant Mr Thorogood then prepared an "Product Investigation" report for the applicants to determine if the product was defective, or whether it was because of the way it was applied. In respect of the main bathroom he said that:[9]

Issues in this room range from internal and external corners left rough which will create watertight issues and allow moisture penetration overtime. The fall is still not correct and moisture will pool in areas on the floor. Mesh showing under the top coat which will need to be recoated. Some areas are left very rough which will allow moisture to penetrate via pinholes. Overall general finishes not of acceptable standard for warranty

• [22] As a consequence of receiving this report, and without notice to the respondent, the applicants engaged Earth House to redo the walls and floor in early March 2023[10] for an eventual cost of $6,545.00. They demanded to be reimbursed by the respondent for this cost on the basis of his defective or incomplete work. He did not pay so they instituted a proceeding in the minor civil disputes jurisdiction of the Tribunal.

• [23] It has been settled now for some time that a building dispute cannot be heard a minor civil dispute. The reason for this has been explained in many appeal cases.[11] In particular in Peter Broadbelt Electrical Pty Ltd v Harrison [2022] QCTA 91 Senior Member Brown explained, in some detail by reference to the definitions in Sch 2 of the Queensland Building and Construction Commission Act 1991 ("QBCC Act") of building work, domestic building dispute, and tribunal work that this type of claim is not a minor civil dispute as defined in Sch 3 of the QCAT Act.

A 'minor civil dispute' is relevantly defined as:

1 (a).. a claim to recover a debt or liquidated demand...;

(b)...................

1. However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute

• [24] Even though s 12 of the QCAT Act confers jurisdiction to hear and determine minor civil disputes, the jurisdiction is subject to the QBCC Act, which is the enabling Act referred to in the definition above. The QBCC Act confers jurisdiction on the Tribunal to decide a 'building dispute', which under s 77 is defined as:

(a) 'Building dispute' relevantly includes domestic building disputes and minor commercial building disputes;

(b) Domestic building dispute" means a claim or dispute arising between building owner and a building contractor, or between two building contractors relating to the performance of or a contract for the performance of reviewable domestic work;

(c) ...............

• [25] This is a building dispute between a trade contractor and the building owners, the applicants. The work the subject of the dispute is plainly reviewable domestic building work, which has already been the subject of review by the QBCC. The jurisdictional position was put succinctly by Member Gordon in Lucas v Habul [2020] QCATA 53 at [16]:

The tribunal's current considered view on point (a)[12] is given in Skinner v FTP Contracting Pty Ltd & Anor (No 2) [2020] QCATA 12, [36], that the requirement in section 77(2) applies to all building disputes even if the application appears also to be a minor civil dispute as defined. This means that the tribunal will never have jurisdiction to hear a building dispute where the applicant has not complied with a process established by the Commission to attempt to resolve the dispute.

• [26] Therefore the minor civil dispute tribunal lacked jurisdiction to hear the dispute. The decision below must be set aside. The applicants are not without remedy. They can institute new proceedings provided they comply with s 77(2) of the QBCC Act which states that:

However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.

• [27] The only evidence of any engagement with the QBCC is the Decision Notice of 12 January 2024. That Notice records that there were complaints made about each of the wet arears on 9 March 2023. Complaints items 1 - 6 inclusive relate to the bathroom. The works were not inspected by the Commission until 21 September 2023. On 4 October 2023 a decision was made to issue a Direction to Rectify in relation to items 9 (laundry), 12 (ensuite), 13(ensuite) and 15 (ensuite).
• [28] However, it seems that there was no "attempt to resolve the dispute" in respect of the main bathroom after the rectification work was done by the respondent. It seems from Mrs Arber's submission in the appeal, under the heading "I called Brian Delaney from QBCC....", that there was some engagement with the QBCC prior to the applicants' paying Mr Hardie and demanding reimbursement from the respondent. It is unlikely there would have been any resolution process before filing the application on 6 March 2023 because after lodging the complaint with the Commission on 9 March 2023, the work was carried out before 10 March 2023.

• [29] This minor civil dispute could not, as a matter of law, be decided by an adjudicator in the minor civil dispute jurisdiction. Given the lack of jurisdiction, the decision of 21 March 2024 was made in error and must be set aside.
• [30] As I cannot be satisfied that s 77(2) of the QBCC Act has been complied with, I cannot transfer the application to the building list in the Tribunal.
• [31] I therefore propose to make the following orders:

(a) Leave to appeal is granted.

(b) The appeal is allowed.

(c) The decision of the Tribunal of 21 March 2024 is set aside.

(d) The application MCD126-23 (Southport) is dismissed for want of jurisdiction.

[1] Who I shall refer to as "the respondent"

[2] Statement of Mr Symington and as viewed on his website.

[3] There was delay because of the involvement of the Queensland Building and Construction Commission ("QBCC".

[4] Terera & Anor v Clifford [2017] QCA 181.

[5] [2023] QCATA 66 at [2]

[6] Undated but obtained subsequent to the hearing, because it makes reference to the respondent's evidence at the hearing.

[7] The email in the MCD file is dated 21 March 2024 so I assume it was printed then, because the evidence demonstrates the work was done in March 2023.

[9] Calce Company report 20.02.2023 annexed to the application for leave to appeal or appeal.

[10] There is an invoice for this work dated 10 March 2023.

[11] Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49; Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd [2023] QCATA 22; 24/7 Plumbing, Drainage & Gas Pty Ltd v PDM Constructions Pty Ltd [2024] QCATA 51.

[12] Jurisdiction of the Tribunal to decided building disputes as a minor civil dispute.