Walker & Anor v Davlyn Homes P/L [2003] QCA 565

[1] McPHERSON JA: For the reasons given by Wilson J in her judgment, I agree that the application for leave to appeal cannot succeed. It must be dismissed with costs.

[2] MACKENZIE J: I agree with the reasons given by Wilson J for refusing leave to appeal and with the orders proposed.

[3] WILSON J: The applicants ("Mr and Mrs Walker") seek leave to appeal from a decision of the District Court dismissing an appeal from the Queensland Building Tribunal.

[4] Mr and Mrs Walker and the respondent ("Davlyn Homes") were the owners and builder respectively under a contract made in or about August 2001 for the construction of a house at Ningi in the Caboolture region. The parties' relationship broke down at about the time of completion of the frame. This resulted in Davlyn Homes commencing a proceeding against Mr and Mrs Walker in the Queensland Building Tribunal claiming $15,121.73 pursuant to the contract, damages and costs. Mr and Mrs Walker counterclaimed for the cost of defective work. The hearing took place over two days, 10 May and 11 June 2002. On 26 July 2002 the Tribunal ordered them to pay Davlyn Homes $14,077.24, "...being the adjusted balance of the claim, less $500 awarded on the counterclaim...", $200.00 reimbursement of an application fee and costs. Mr and Mrs Walker appealed to the District Court. Meanwhile Davlyn Homes took steps to enforce the order of the Tribunal, and a bailiff's auction was advertised to be held on 13 May 2003. On 12 May 2003 Ambrose J granted an injunction restraining the sale until further order, and on 26 August 2003 Samios DCJ dismissed the appeal with costs.

[5] Mr and Mrs Walker were not legally represented before the Tribunal. Davlyn Homes had legal representation only on the first day of the hearing. Both sides were represented by counsel before the District Court, but in this Court Mr and Mrs Walker appeared unrepresented, while Davlyn Homes appeared by counsel.

2. Stay of Execution against any further attempts by Respondent of the sale/auction of my house and land.

3. Order for criminal proceedings against Robert Bakker (Solicitor) and Davlyn Homes for falsifying documents, forgery and tampering with evidence to mislead the Tribunal.

4. To present evidence that shall relieve me of the liability ordered by the tribunal.

5. To send the case back to the Commercial & Consumer Tribunal for revision of the decision.

6. To seek costs and compensation for damages and legal costs incurred as a result of Orders based on misleading evidence presented by respondent to the Tribunal.

7. To seek costs of dwelling reconstruction and/or making good defective and non-compliant work that is in violation of

(a) The original local authority development approved construction plans,

8. To seek costs for pending legal action based on false and misleading data.

9. To present evidence including the inspection report from the BSA along with the private inspection report that proves respondent undertook building work that was not to the highest standards of:-

(e) And full compliance with all applicable laws, regulations, codes and standards.

10. To seek costs pertaining to the Cost Escalation Clause of the Domestic Building Contract Act 2000, Section 56, item 6b, relating to the delay of the subject work, being the amount representing 0.05% of the contract price for each day of the delay which to this dates (sic) equates to $34,387.00."

[7] The Queensland Building Tribunal Act 2000 (Qld) provided for an appeal as of right to the District Court: s 92. In order to appeal from the District Court, Mr and Mrs Walker need this Court's leave to appeal: District Court of Queensland Act 1967 (Qld) s 118(3). While this Court has a general discretion whether to grant leave, the mere fact of error in the judgment below would not ordinarily be sufficient to justify leave to appeal. This legislation expressly provided for an appeal as of right to the District Court, with the implication that such an appeal should ordinarily dispose of the matter: Cooper & Anor v Jezer Construction Group Pty Ltd [2003] QCA 335.

[8] Mr and Mrs Walker wish to reopen some of the matters which the Tribunal determined against them and to raise new allegations. They seek to rely on fresh evidence gathered after the Tribunal made its decision, including a report of Roger Karrasch, architect, prepared in May 2003, and a report of Michael O'Connor, builder, prepared in June 2003.

[9] An appeal to this Court is by way of "rehearing": District Court of Queensland Act 1967 s 118(9); Uniform Civil Procedure Rules rr 745, 765. A "rehearing" before an appellate court involves a review of the record of proceedings below rather than a completely fresh hearing. To succeed, an appellant needs to show some legal, factual or discretionary error: CDJ v VAJ (No 1) (1998) 197 CLR 172 at 201-2; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180. This Court's powers on appeal are set out in UCPR r 766, which provides (inter alia) -

(a) has all the powers and duties of the court that made the decision appealed from; and

(b) may draw inferences of fact, not inconsistent with the findings of the jury (if any), and may make any order the nature of the case requires; and

(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; and

(d) may make the order as to the whole or part of the costs of an appeal it considers appropriate.

(2) For subrule (1)(c), further evidence may be given without special leave, unless the appeal is from a final judgment, and in any case as to matters that have happened after the date of the decision appealed against.

(4) On an appeal, the powers of the Court of Appeal are not limited because of an order made on an application in a proceeding from which there has been no appeal.

(5) Also, on hearing an application for a new trial or to set aside the verdict or finding of a jury, the Court of Appeal may, if satisfied it has before it all the materials necessary for finally determining any or all of the questions in dispute or for awarding any relief sought, give final judgment in the matter, and may for that purpose draw any inference of fact not inconsistent with the findings of the jury.

[10] Despite the apparent width of these powers, it is well established in principle and practice that an issue cannot be raised for the first time on appeal except in special circumstances, and certainly not where, had it been raised at first instance, evidence might have been led to defeat it. In Coulton & Ors v Holcombe & Ors [1986] HCA 33; (1986) 162 CLR 1 at 7-8, the majority of the High Court said -

"The provision that 'the appeal shall be by way of rehearing' is well understood, as Windeyer J. made clear in Da Costa v. Cockburn Salvage & Trading Pty. Ltd.

'This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred: see Attorney-General v. Birmingham Tame, and Rea District Drainage Board, and Attorney-General v. Vernazza.'.

See also, Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan per Dixon J. To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd.; Bloemen v. The Commonwealth. In O'Brien v. Komesaroff, Mason J., in a judgment in which the other members of the Court concurred, said:

'In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh; Suttor v. Gundowda Pty. Ltd.; Green v. Sommerville). However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial'.

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this Court (University of Wollongong v. Metwally [No 2] the Court said:

'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so'."

See also Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR 54-575 at 66,907 per Callaway JA and Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50 at paras [27]-[29] per Kiefel and Allsop JJ.

[11] An appellate court's power to receive further evidence is exercised with similar restraint. In Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Thomas J (with whom the other members of the Court agreed) considered a provision akin to UCPR r 766(c) in the former Supreme Court Rules. At page 408 his Honour said -

"The classic statement of what amounts to 'special grounds' for reception of further evidence upon an appeal was approved recently by Lord Bridge in Langdale v Danby [1982] 3 All ER 129 at 137 - 138. Three conditions must be fulfilled. 'First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, 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: third, 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.'"

[12] The only contract document, apart from specifications, tendered before the Tribunal was a schedule expressed to be intended to be read with a BSA Consumer Guide and General Conditions of Contract. Despite the urgings of the Tribunal member, there was no evidence as to which edition of the BSA standard form contract had accompanied the schedule. The Tribunal member researched the edition which complemented the form of the schedule, and gave the parties ample opportunity to take issue with her conclusion as to the relevant edition. The schedule included the following -

Progress Payment Percentages applicable to Lump Sum Component:

Davlyn Homes put its copy of the schedule into evidence before the Tribunal (without objection). Against the progress payment percentages were handwritten figures obviously calculated from the total price rather than the lump sum component.

[13] Davlyn Homes' error in calculating the progress payments by reference to the total price rather than the lump sum components was perpetuated in progress payment certificates which it issued to Mr and Mrs Walker. The first certificate (dated 13 October 2001) which was for work to the slab stage was in the sum of $9,421.00. The second certificate (dated 22 October 2001) which was for work to the frame stage was in the sum of $14,132.00. The certificates should have been for no more than $7,700.00 and $11,550.00 (a total of $19,250.00).

[14] By a default notice dated 29 October 2001 Davlyn Homes asserted that Mr and Mrs Walker were in substantial breach of the contract in failing to pay the sum of $23,553.00 for the slab and frame stages within five working days of invoices, and gave them seven working days to remedy the breach. By 7 November 2001 Mr and Mrs Walker had paid $19,441.00, and Davlyn Homes asserted that they were still in substantial breach and purported to terminate the contract. The next day Davlyn Homes received a notice from Mr and Mrs Walker (dated 5 November 2001) purporting to terminate the contract for defective workmanship.

"38. Each party purported to terminate the contract. The basis on which the respondents [Mr and Mrs Walker] asserted a right to terminate is not clear. The Applicant [Davlyn Homes] subsequently terminated for failure to pay. [Davlyn Homes] now claims on a quantum meruit basis for work performed, plus an undisputed profit margin. It is entitled to payment on that basis."

She allowed $14,577.24 ($34,018.24, which included 20% profit margin, less payments of $19,441.00). She found that Mr and Mrs Walker had established their counterclaim to the extent of $500.00 only, and accordingly ordered payment of $14,077.24.

[16] The learned District Court Judge correctly identified that the amounts in the progress certificates could not be claimed by Davlyn Homes, and that as Mr and Mrs Walker had, before 7 November 2001, paid more than the amount to which Davlyn Homes was entitled, the latter had no right to terminate the contract for their failure to pay. He reviewed the sequence of events, and concluded that while both parties had repudiated the contract, neither had accepted the other's repudiation. But both parties had abandoned the contract. Since Davlyn Homes' repudiation had not been accepted by Mr and Mrs Walker as terminating the contract, there was no impediment to its recovering on a quantum meruit.

[17] In assessing the quantum meruit claim the Tribunal member had regard to a bundle of tax invoices which were exhibit 19 before her. Before this Court Mr Walker claimed never to have seen exhibit 19. At the conclusion of the first day of the hearing the Tribunal member said she was going to arrange for a copy of exhibit 19 to be given to Mr Walker. The hearing resumed about a month later, and the transcript of proceedings on the second day does not reveal any assertion by Mr Walker that he had not received a copy of exhibit 19. This point was not taken before the District Court. In the circumstances it is not a ground for impugning the Tribunal's decision.

[18] Before this Court Mr Walker argued that the contract schedule had been "tampered with" by the insertion of the erroneous handwritten calculations of the progress payment percentages, that those calculations were contrary to the provisions of s 66 (5) and (7) of the Domestic Building Contracts Act 2000, and that the Tribunal's decision had been influenced by them.

"Thus the breach of contract claimed by [Davlyn Homes] was unfounded and hence the grounds for termination of the contract were unlawful and malicious."

[19] The Tribunal member did not advert to Davlyn Homes' erroneous calculation of the amounts of the progress payments. She did not make an order "based on documents which were misleading and tampered" as asserted by Mr Walker. Rather she found that both parties had abandoned the contract, and allowed recovery on a quantum meruit. Her approach was correct, and not tainted by any misconception as to the correct amounts of the progress claims.

[20] Mr Karrasch's report was obtained after the Tribunal hearing and before the hearing of the appeal by the District Court. The learned District Court Judge refused to receive it as fresh evidence, because he was not satisfied that it could not, with reasonable diligence, have been obtained for use before the Tribunal. Further, he considered its contents to be equivocal, incoherent and not cogent proof of defective work by Davlyn Homes.

[21] In this report Mr Karrasch listed over 50 defects and items of non-compliance. He said in an affidavit sworn in September 2003 -

"19. I was commissioned by the Appellants to give my professional opinion on the visual defects at the Appellant's residential address referred to above.

20. As is evidenced by the Summary contained in the Advice document, the defects I observed include, defects that adversely affect the safety of the occupants; that will allow water penetration into the building; defects that will adversely, in the long term, affect the structural adequacy of the building; defects that will adversely affect the serviceability, performance and functional use of the building and works; including the use of sub-standard termite protection methods.

21. I state, the defects observed, do not comply with the building agreement and in all probability well (sic) be the cause of substantial defects under the scope of the Queensland Building Services Authority insurance policy or within the economical life of the building.

22. My professional Summary in the Advice document, also comments on areas of the home which were not accessible by me and I am of the opinion there may be patent defects in those inaccessible areas and latent defects that may not as yet become evident.

23. My Advise (sic) also included and lists, from my observations, twenty four (24) items that are considered non-compliant in terms of the building matter.

24. From my observations this home remains in a state of non-completion in as much as there is defective work in the Base and Frame Construction Stages."

"5. On or about the day of 29 May 2003, we received a copy of the report of Roger Karrasch and we wish to make the following comments based on our personal observations of the building work which was undertaken.

6. In relation to Items (sic) 3, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 25, 26, 27, 29, 30, 31, 32, 33, 37, 40, 43, 47, 48, 49, 50, 51 of the report, we advise that we were not aware of these defects at the time of the tribunal hearing. The first we became aware of these defects is when we read the report of Roger Karrasch.

7. In relation to items, 1, 2, 4, 11, 20, 24, 28, 34, 35, 36, 38, 39, 41, 42, 44, 45, 46 in the report of Roger Karrasch, we advise that we were aware of these at the time of the hearing."

[23] Accepting that Mr and Mrs Walker were previously unaware of some of the matters listed by Mr Karrasch, they have still not satisfied the first limb of the test for receipt of fresh evidence on appeal, namely that of showing that the evidence could not with reasonable diligence, have been obtained for use before the Tribunal. The learned District Court Judge was right to reject the fresh evidence, and this Court should do likewise.

[24] Mr Karrasch's report is supplemented by six pages each dated 27 September 2003 (after Mr and Mrs Walker filed this application and swore that affidavit). They all relate to defects in the structural integrity of the slab and termite barrier, and recommend replacement of the slab at a cost of $120,000.00.

[25] Before the Tribunal, Mr and Mrs Walker raised no issue as to the structural integrity of the slab. What they alleged in their counterclaim was -

"Pest barrier to Concrete slab (included in contract price) was removed without authorisation".

The Tribunal member dealt with the issue raised in this way -

22 These words appear in the standard specifications but are deleted from the specifications which were signed by the parties and which the applicant says are the relevant specifications. The respondents say that these specifications were changed, that they were unaware that the change was made, and that there should be a reduction in the price of the house to reflect the fact that an underslab pest barrier was not installed.

23 The pricing of extras in exhibit 3 includes $1,400 for trusses, frame and mouldings in treated pine. The total price for the house was to be $94,211. The contract was terminated and the claim for damages relates to costs expended rather than to the total cost of the house.

24 I am satisfied that the timber used by the applicant was treated timber (exhibit 21). The applicant does not claim the cost of the underslab termite treatment. No damages flow from the change to the specification whether or not it was approved.

25 The respondents assert that it was necessary to remove nine trees from the property because the required pest barrier was not installed and say the cost of this work was quoted at $2,000.

26 Mr Clayton of the Building Services Authority gave evidence that the trees constituted a risk for termite infestation and should have been removed regardless of the termite barrier installed. He also said that use of treated pine and cyprus was an appropriate termite prevention measure. The respondents did not call any persons to give evidence to contradict the opinion of Mr Clayton. To the extent that a counterclaim is made for damages arising from the changed system of pest barrier, the counterclaim cannot succeed."

[26] Mr and Mrs Walker now contend that in seeking payment for the base and frame stages, Davlyn Homes relied on false and misleading evidence, and in doing so breached certain statutory obligations under the Domestic Building Contracts Act 2000. These are serious allegations. The Tribunal did not allow recovery on the basis of progress claims under the contract, but on a quantum meruit. Davlyn Homes produced evidence of the value of the work it had actually performed (the invoices in exhibit 19). Mr and Mrs Walker did not object to their being tendered, scarcely cross examined on them and did not call contradictory evidence.

[27] There is no material from which this Court could conclude that Mr Karrasch's further evidence could not, with reasonable diligence, have been obtained and placed before the Tribunal. In these circumstances the matters of the structural integrity of the slab and absence of a termite barrier could not be raised on appeal to this Court.

[28] Mr and Mrs Walker wish to raise various other issues that they did not raise before the Tribunal.

(a) False Slab Report: that a Slab Report prepared by consulting engineers and put before the Tribunal as part of Davlyn Homes' case was false;

(b) Timber protruding through termi-mesh: that there were pieces of timber protruding through the termi-mesh, so making the termite barrier ineffective;

(c) Failure to supply information: that, in breach of statutory obligations, Davlyn Homes did not supply them with various data and so denied them the opportunity of monitoring progress of the construction;

(d) Outstanding certificates: that, in breach of statutory obligations, Davlyn Homes failed to obtain certain certificates, such as an engineering certificate for footings and slabs and a termite certificate for the underslab and perimeter. They do not state what they allege follows from these transgressions.

To allow them to raise these issues before this court would prejudice Davlyn Homes, since they are clearly issues on which it would have been expected to call evidence. To remit the proceeding to the Tribunal would be to deny finality to the hearing that has already been held.

[29] Mr and Mrs Walker seek to relitigate some issues which were determined against them by the Tribunal.

(i) The Tribunal made an express finding that the timber used was treated timber. Mr and Mrs Walker assert that Davlyn Homes led false evidence on this, and want to rely on evidence obtained after the Tribunal's decision (that of Mr Karrasch and of a timber supplier) to prove that untreated timber was used.

(ii) There is no material from which this Court could conclude that this evidence could not, with reasonable diligence, have been obtained for use before the Tribunal. Accordingly it would not be allowed to be led on appeal.

(i) One of the matters raised by way of counterclaim before the Tribunal was that the plumbing had not been properly installed. The Tribunal member considered a report by Mr Clayton of the Building Services Authority, and said -

"32 Item 2 in the report is "Plumbing not properly installed". Mr Clayton comments on this item as it relates to installation of pipework to the septic system, the position of the system and smells emanating from the system. He says:

'At time of inspection the system was working effectively and there were no odours. Discussion with John Summerville from Caboolture Shire Council reveals that the treatment plant has been installed satisfactorily. The Applicant has supplied documents which indicate the Respondent advised position of treatment plant.'

33 Mr Clayton concluded that no rectification was required in relation to installation of the septic system.

34. The report in B045-02 says that 'Positioning of the treatment plant is determined by the falls required to pipework'. Mr Clayton says that Davlyn installed drainage pipes, but the septic treatment plant was installed by the applicant in B045-02 (Mr Peter Kordonsky). He considered Mr Kordonsky was responsible for that installation and that a surface drain should be installed to allow water to flow towards the street, because the block had been cut lower than the adjoining block.

35. Mr Glastonbury gave evidence that the septic tank was located outside the bathroom and laundry at the request of the respondents. In the document entitled 'Counter-claim', which includes a "Statement of Len Walker", filed on 31 May 2002, Mr Walker says that he wanted the septic tank to be installed away from the 'entertainment area', but that it was to be 'in the front yard on the garage side'. There was no oral evidence about the instructions for location of the septic tank_,_ or evidence about how the location 'in the front yard' would have improved operation of the tank.

36. In the absence of such evidence I accept the opinion of Mr Clayton that no rectification is required."

(ii) There have since been problems with the septic system, and Mr and Mrs Walker seem to be wanting to relitigate the issue. Further they allege that the signature on a relevant application form submitted to the Caboolture Shire Council was not that of Mr Walker, but a forgery. There is nothing to suggest that this point could not have been taken and litigated before the Tribunal.

(i) The correct date of the contract specification was an issue before the Tribunal. Mr and Mrs Walker alleged that standard specifications were altered without their knowledge or authority after initial agreement. Those alterations included certain extras, namely a hot water system and a stove, to be purchased by Davlyn Homes.

28 The 'extras' dated 9 August 2001 which form part of exhibit 3 make specific provision for these items. Ultimately they do not affect the claim or counterclaim in this proceeding because the contract was terminated before these items were purchased by the applicant [Davlyn Homes]."

(iii) Mr and Mrs Walker contend that evidence led by Davlyn Homes that the contract was terminated before these items were purchased was false. They want to rely on an invoice dated 25 August 2001, but they give no explanation why this could not have been put before the Tribunal.

(iv) Mr and Mrs Walker say that they have had no hot water in the house for the last two years because Davlyn Homes failed to erect extra trusses that were required to support a solar hot water system. This is a new point.

These topics were litigated before the Tribunal. It is now too late for Mr and Mrs Walker to bring up different aspects of them or further evidence that they did not rely on before the Tribunal.

[30] On their own account Mr and Mrs Walker's experience in having a new house built has been a devastating one. More than two years later the house is apparently still not finished, and on one view the problems with the slab are so serious that the house should be demolished and rebuilt. They still do not have hot water.

[31] It is most unfortunate that the matters of which they now complain were not raised before the Tribunal. It is too late to raise them now. To remit the proceeding to the Tribunal to undertake a fresh hearing based on fresh issues and fresh evidence would be to deny finality to the Tribunal's decision in defiance of the statutory scheme and the principles relating to appellate proceedings.

[32] Mr and Mrs Walker may be able to recover some of their alleged losses in a breach of warranty claim under s 51 of the Domestic Building Contracts Act 2000. Their entitlement to do so is not a matter properly before this Court on this application, and this Court has not made any assessment of their prospects of success.

[33] Mr and Mrs Walker have made various allegations of forgery and the giving of false evidence on behalf of Davlyn Homes. They have called for "disciplinary action" and "criminal proceedings" to be taken. These are not matters for this Court on appeal.

[34] They claim an entitlement to compensation under s 56 of the Domestic Building Contracts Act 2000. This is not a matter for this Court on appeal.

[35] The injunction restraining the sale of the house remains in force unless and until there is a successful application to discharge it. It is not for this Court on this application to extend the injunction or otherwise stay the execution of the Tribunal's judgment.

[36] The decision of the Tribunal was primarily one of fact; it did not involve any questions of law not previously settled. The decision of the learned District Court Judge in dismissing the appeal was clearly correct. In the circumstances, the application for leave to appeal should be dismissed with costs.