Robertiello v Di Lione & Anor [2003] QCA 497

SUPREME COURT OF QUEENSLAND

CITATION: Robertiello v Di Lione & Anor [2003] QCA 497

PARTIES: VINCENZO ROBERTIELLO / (appellant/respondent) / v / LINO DI LIONE / (first respondent/first applicant) / FRANK DI LIONE / (second respondent/second applicant)

FILE NO/S: Appeal No 3545 of 2003 / DC No 3112 of 2002

DIVISION: Court of Appeal

PROCEEDING: Application for extension of time / Application for leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 14 November 2003

DELIVERED AT: Brisbane

HEARING DATE: 27 October 2003

JUDGES: McMurdo P, Mackenzie and Wilson JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: The application for extension of time grantedThe application for leave to appeal is dismissedThe applicants pay the respondent’s costs of the application

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where original decision of Queensland Building Tribunal – where respondent successfully appealed to District Court and Queensland Building Tribunal decision was set aside – where applicant seeks leave to appeal from District Court decision – whether leave to appeal should be granted / District Court of Queensland Act 1967 (Qld) s 118(3) / Queensland Building Tribunal Act, 2000 (Qld) s 125(5), s 92 / ACI Operations Pty Ltd v Bawden [2002] QCA 286; Appeal No 3970 of 2002, 6 August 2002, cited / Cooper v Jezer Construction Group Pty Ltd [2003] QCA 335; Appeal No 5591 of 2003, 1 August 2003, cited / Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131; Appeal No 5981 of 2001, 24 May 2002, cited

COUNSEL: T Matthews for the applicants / H Zillman for the respondent

SOLICITORS: N R Barbi Solicitors for the applicants / James Conomos Lawyers for the respondent

MCMURDO P: I agree with Wilson J that, for the reasons she gives, the application for leave to appeal should be dismissed with costs.

MACKENZIE J: I agree with the orders proposed by Wilson J for the reasons given by her.

WILSON J: The applicants seek leave to appeal from a decision of the District Court in its appellate jurisdiction. At the commencement of the hearing, the applicants were granted an extension of time in which to seek such leave.

The applicants were the owner and builder of a house at 68 Chester Street, Teneriffe. In August 1995 the second applicant engaged the respondent to apply a waterproof protective coating to the balcony of the house. The balcony has leaked since about March 2001. The applicants allege that defective workmanship on the part of the respondent caused the leak, and that they have suffered loss and damage of approximately $14,500 in consequence.

In August 2001 the applicants commenced a proceeding against the respondent in the Queensland Building Tribunal claiming damages or alternatively rectification. The dispute went to mediation on 18 September 2001, when a compromise was reached in the following terms:

“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 18th 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 24th September 2001 and completed by the 5th 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 proceedure (sic) 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 (sic) from the 8th of October to the 19th 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 (sic) be located during the time frame given the Respondent 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”

Despite the compromise, the respondent filed a defence and counterclaim on 30 November 2001.

On 4 December 2001 the terms of the compromise were made an order of the Tribunal pursuant to s 125(5) of the Queensland Building Tribunal Act 2000 (Qld). The purported rectification having failed, the Tribunal made consequential orders for the filing of affidavits and a hearing as “to the cause of the leak in the work undertaken by the respondent …”. That hearing occurred on 10 January 2002, and the Tribunal’s decision was given on 14 January 2002.

It is unclear what the Tribunal was purporting to do by its decision of 14 January 2002. It made findings with respect to the cause of the leak, which may be summarised as follows –

(a) The manufacturer/distributor of the waterproofing material had prepared a “recommendation” for their application to the various surfaces at the particular property. This included taking sheeting membrane up 150 mm on to surrounding parapet walls and flashing over the top edge with certain materials.

(b)The respondent had not been supplied with a copy of “the specification ... prepared specifically for the property in question.”

(c) The respondent did not apply any product to the top of the parapet walls. When he did the rectification work he extended the membrane up 10 to 15 cms but did nothing to protect the top or back of the parapet wall.

(d) By the agreement reached at mediation the respondent compromised any rights he may have had in respect of a failure to provide him with the “specification” when the work was originally done.

(e) The failure to follow the “specification” by protecting the parapet brickwork was what allowed the ingress of water into the lower level of the building.

Of course, the parties had compromised their rights by the agreement reached at mediation. The Tribunal noted in para [18] of its reasons -

“An order has already been made pursuant to section 125 of the Act that the respondent rectify the leak and all consequential damage and thus there is no need to repeat that order. The respondent must, as he agreed to do, rectify the leak. This involves waterproofing the top and back of the parapet wall in accordance with the original specification.”

The Queensland Building Tribunal Act provided for an appeal as of right to the District Court: s 92. On 20 June 2002 the District Court gave the present respondent an extension of time in which to appeal.

Section 92 provided –

“Appeals

92.(1) A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal that finally decides matters the subject of the proceeding.

(2) An appeal must be filed within 28 days after the decision takes effect.

(3) An appeal must—

(a) be accompanied by the tribunal’s decision and reasons for decision, if any; and

(b) refer to the tribunal’s decision and reasons for decision, if any, and any other relevant material and state the grounds for the application.

(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) The tribunal is not a party to the appeal but the party appealing must serve a copy of the appeal and supporting documents on the tribunal within 7 days of filing the appeal in the District Court.

(6) On an 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.

(7) The registrar of the District Court must give the tribunal a copy of the court’s judgment and reasons.”

At the commencement of the hearing of the appeal by Boulton DCJ each side asked for leave to rely on affidavit evidence in addition to the evidence that was before the Queensland Building Tribunal. In each case there was no objection and leave was granted. Then there was cross-examination of the deponents. It was submitted that the Queensland Building Tribunal had made an order going well beyond the scope of the original contract or of the mediation agreement and therefore beyond its powers.

The District Court Judge found that the “specification” had not been shown to the present respondent at the time of the original contract, and that the issue of extending the waterproof membrane up and over the parapet had not been discussed with him; indeed, it was not even considered at the time of the original work. Further, it went beyond what was agreed in the compromise reached at mediation. The substantive provisions of the compromise agreement were satisfied when the present respondent returned to the site, extended the waterproof membrane to 150 mm above the deck surface and water tested the whole area to establish that there was no leak coming from the work that he had contracted to perform. The appeal was allowed and the decision of the Queensland Building Tribunal of 14 January 2002 was set aside.

The applicants wish to appeal from the judgment of the District Court. Because it was a judgment in the appellate jurisdiction of that Court, they need this Court’s leave to appeal: District Court of Queensland Act 1967 (Qld) s 118(3). This Court has a general discretion whether to grant leave. It is not necessary for an applicant to satisfy the Court that the proposed appeal involves an important point of law or a question of general public importance, although that would ordinarily warrant the grant of leave: ACI Operations Pty Ltd v Bowden [2002] QCA 286. The mere fact of error in the judgment below would not ordinarily be sufficient to justify leave to appeal: Cooper v Jezer Construction Group Pty Ltd [2003] QCA 335.

In the present case I consider that leave to appeal should be refused for the following reasons:

The nature of an appeal to the District Court pursuant to s 92 of the Queensland Building Tribunal Act was comprehensively analysed by McGill DCJ in Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131, where his Honour concluded that it was really an appeal by way of rehearing in the usual sense. That case was drawn to this Court’s attention by counsel for the applicants after the conclusion of oral submissions (and with due notice to counsel for the respondent).

The District Court had power to receive further evidence, and it did so at the behest of both sides.

There would be little, if any, real utility in this Court’s consideration of the issue, since the Queensland Building Tribunal Act has been repealed, and replaced by the Commercial and Consumer Tribunal Act 2003 (Qld). The new legislation contains a provision for appeal from the Commercial and Consumer Tribunal to the District Court in quite different terms from s 92.

The legislation expressly provided for an appeal as of right to the District Court, and that carried an implication that such an appeal should ordinarily dispose of the matter: Cooper v Jezer Constructions Group Pty Ltd.

The principal issues sought to be ventilated on appeal are issues of fact.

The amount involved is comparatively small in the context of the legal costs involved.

I would dismiss the application for leave to appeal, and order the applicants to pay the respondent’s costs of the application.