Baldwin v Von Knorring [2015] QCATA 107

CITATION: Baldwin v Von Knorring [2015] QCATA 107 PARTIES: David Alfred Baldwin (Applicant/Appellant) v Peter Von Knorring (Respondent) APPLICATION NUMBER: APL396-14 PARTIES: Peter Von Knorring (Applicant/Appellant) v David Alfred Baldwin (Respondent) APPLICATION NUMBER: APL399-14 MATTER TYPE: Appeals HEARING DATE: 20 May 2015 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Quinlivan DELIVERED ON: 14 July 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeals are allowed. 2. The decision of 4 September 2014 is set aside. 3. The matters are remitted to a differently constituted Tribunal for determination according to law. 4. BDL297-13 be listed for a directions hearing in the Building List. CATCHWORDS: APPEALS – DOMESTIC BUILDING DISPUTE – where appeal allowed on errors of law – where parties denied procedural fairness – where error of law in application of s 84 of the Domestic Building Contracts Act 2000 Domestic Building Contracts Act 2000 (Qld), s 84 -- 1 of 16 -- 2 Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142 Allaro Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286 Racing Queensland v Dixon [2013] QCATA 172 APPEARANCES: APPLICANT: Mr Baldwin appeared on his own behalf RESPONDENT: Mr Von Knorring appeared on his own behalf REASONS FOR DECISION [1] Mr Baldwin agreed to carry out a home extension and renovations for Mr Von Knorring. The works were proceeded with but the parties fell into dispute. [2] Mr Von Knorring commenced proceedings in QCAT seeking relief from payment of the balance owing under the contract ($16,540.00); a declaration about the validity of termination of the contract and the provision of certificates and keys. [3] Mr Baldwin responded seeking dismissal of the claim. He counter-claimed for an amount of $34,579.20 which he says was monies owing under the contract and for unpaid variations. He also claimed interest under the contract. In the alternative he made a claim for unjust enrichment. [4] Following an oral hearing the Tribunal ordered that Mr Von Knorring pay Mr Baldwin $12,832.00 and that upon payment of this amount Mr Baldwin give to Mr Von Knorring any outstanding building certificates, warranty documents and keys held by him to the property. [5] Both Mr Von Knorring and Mr Baldwin applied for leave to appeal and to appeal the decision. The applications and appeals were heard together. Mr Baldwin’s Appeal [6] Mr Baldwin in his application raised only one ground of appeal, as follows: The evidence given by me has not been read by (the learned Member) and therefore a number of items in her decision are incorrect. [7] In his submissions in support of his application1 he further particularised his complaints. 1 Filed 21 November 2014. -- 2 of 16 -- 3 [8] We accept these submissions filed as the document in which the grounds relied on are contained and they can be broadly summarised as: a) The learned Member erred in that she failed to take into consideration that he had already reduced the final payment by $2,000.00 for the rendering of the front brick walls, which was not completed under the contract. b) The learned Member erred in unreasonably disallowing variations under s 84(4) of the Domestic Building Contracts Act 2000 (Qld). c) The learned Member erred in finding that because the contract had not been properly terminated Mr Baldwin was not entitled to interest on the moneys owing under the contract. d) The learned Member erred in ordering the delivery by Mr Baldwin of certificates and keys when she had no power to do so. Mr Von Knorring’s Appeal [9] Mr Von Knorring raised five grounds of appeal which were further particularised in his submissions.2 [10] As with Mr Baldwin we accept the submissions as the document containing the grounds of appeal relied on by Mr Von Knorring as follows: a) That the hearing was unfair because of bias shown by the learned Member. b) That the learned Member erred in finding that Mr Baldwin was entitled to be paid an amount for a variation. c) That the learned Member erred in finding that the painting required by the contract was the painting necessary to meet certifier requirements. d) The learned Member erred in finding that he received the consumer guide. e) The learned Member erred in finding that he was not entitled to the cost of a locksmith. f) The learned Member erred in deciding that he was entitled to all relevant keys and certificates only after he had paid outstanding moneys. [11] The grounds relied on by both parties raise questions of law, questions of fact and questions of mixed law and fact. [12] An appeal on a ground which raises a question of law is as of right.3 Where the grounds of appeal consist of errors of fact or mixed law and fact then the appeal on those grounds can proceed only with the leave of the Tribunal.4 2 Filed 18 November 2014. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 142(1). 4 Ibid, s 142(3)(b). -- 3 of 16 -- 4 [13] Both parties rely on some grounds which only raise questions of law. [14] The Deputy President of the Tribunal in Racing Queensland v Dixon5 noted that where a Tribunal decision gives rise to both an appeal on a question(s) of law and an application for leave to appeal on a question of fact or mixed law and fact it is important that the Appeal Tribunal not burden the right to appeal a decision of QCAT on a question of law with a requirement to obtain the Tribunal’s leave to do so.6 [15] We consider (for the reasons below) that the appeals in this matter should succeed on a number of the grounds relied by the parties which raise questions of law. [16] We have heard and decided the appeals on that basis. [17] We consider it is appropriate that the decision be set aside and returned to a differentially constituted Tribunal for rehearing. That course is not available if we were to decide the appeal on grounds which raise questions of fact. In those circumstances we have not considered the parties applications for leave to appeal on grounds which raise errors of fact or mixed law and fact. [18] The grounds which raise questions of law relied on by both parties can be grouped together and raise the following issues: a) Did the learned Member deny the parties procedural fairness? b) Did the learned Member make an error(s) of law in her findings concerning the variations claimed by Mr Baldwin? c) Did the learned Member err in finding that because the contract had not been validly terminated she could not award interest? d) Did the learned Member err in her finding as to the provisions of certificates and keys? [19] We will deal with each in turn. Were the parties denied procedural fairness? [20] Both parties rely on the ground that to some degree and in different ways they were denied procedural fairness at the hearing. [21] Mr Baldwin in his application for leave to appeal or appeal listed the ground of appeal as ‘the evidence given by me has not been read by (the learned Member) and therefore a number of items in her decision are completely incorrect’. [22] This concern was not further articulated by Mr Baldwin in his written submissions however at the outset of the oral hearing of his appeal he indicated he did not get the opportunity to properly put forward his 5 [2013] QCATA 172. 6 Ibid, at [10]. -- 4 of 16 -- 5 arguments. He told the Appeal Tribunal that there ‘were things he wanted to say which he did not get the opportunity to say’. He said the learned Member kept telling him she would get back to him but never did. [23] Mr Von Knorring says the hearing was unfair. He says that the learned Member displayed bias at the hearing and he felt she had prejudged the matter. He says that this meant he did not get a fair hearing. [24] We consider both parties raise legitimate concerns as to the way the proceedings were conducted, in particular the learned Member: a) Indicated at the outset and during the proceedings her view as to the parties prospects; b) Made attempts to facilitate a settlement of the dispute on the record during the course of the proceeding; and c) Conducted the proceedings in a way which meant the parties were unable to properly present their case. [25] Mr Von Knorring says he felt the learned Member had prejudged the matter and refers to the following comments made by the learned Member at the outset of the hearing before any evidence was taken: Now, you’re not going to be happy with any decision I make, neither of you. Both of you will lose.’7 … Neither of you will like what the outcome is …8 I have warned you that neither of you will be happy with the outcome today. You understand that …9 [26] The learned Member, as part of this discussion, suggested that it may instead be in their interests to reach a resolution of their dispute rather than continue with the hearing. She said: So again the question is do you want the opportunity to try and resolve the issue yourselves? You would have to come to an amount of money that probably Mr Von Knorring, you pay Mr Baldwin and everybody walks away.10 [27] After the hearing started and in the midst of hearing evidence the learned Member again, on the record, expressed a view as to the outcome whilst encouraging the parties to come to a resolution: Member: … which is going to give you the answer that you want: either of you. Now you’re both – I still say to you, you’re both going to lose on this. No ones going to get exactly … What they want. I would really recommend that you try and come up with a solution yourselves, because neither of you is going to like what I am going to say. If 7 Transcript of proceedings, p 1-4, line 45. 8 Ibid, p 1-6, line 40. 9 Ibid, p 1-8, line 30. 10 Ibid, p 1-6, line 30. -- 5 of 16 -- 6 you could come to some sort of agreement about this, where Mr Von Knorring, you pay Mr Baldwin some amount of money. Its not going to be exactly everything that he asks for, but it is going to be more than your seven grand. I mean, if you could come to an arrangement round about, I don’t know, take a half way point, $15,000 to $16,000, then everybody walked away. I really think – I would suggest to you that might be a better alternative to what I am going to have to do when I’ve unpacked all of this and gone through all the paperwork.11 [28] And after some further discussion the learned Member continued:12 Member: Alright, alright. So just before we go one, again, do you want some time to consider this between the two of you, or not? Otherwise, we will just continue on. Mr Von Knorring you’d have to be prepared more than $7,000 Mr Von Knorring: Why? Member: … Well, if that’s the answer, then that’s fine. You may not get – you may be ordered to pay more than that when I finish with this. I am just offering you a chance to negotiate something today, to come to a consent order, and to walk out of here with the matter finalised … Mr Von Knorring: But we haven’t been through all the evidence yet Member: No. We may not of. I am offering you an opportunity to negotiate with Mr Baldwin and finish the matter by consent agreement between the two of you. [29] The following exchange then took place:13 Member: Again if you would like to consider that Mr Von Knorring: I’d like to present some more evidence first. Member: Well I’m not going to make a decision today, sir. Mr Von Knorring: No. But surely I can be heard. Member: Yes. Of course you can. I’m just giving you the opportunity, at this point, if you would like some time to negotiate with Mr Baldwin to do that. If you don’t want to, that’s fine. Mr Von Knorring: Well if he gives me an honest bill, I’ll pay it. Simple as that. Member: Well today is not about honest bills. Today would be a compromise on the amount of money you pay Mr Baldwin and everybody walks away. 11 Ibid, p 1-124, lines 25-40. 12 Ibid, p 1-125, line 30. 13 Ibid, p 1-126, lines 20-40. -- 6 of 16 -- 7 Mr Von Knorring: So your suggesting I pay more than he’s owed. Member: No. I am suggesting that you might want to think about compromising this with Mr Baldwin, rather than continuing with the hearing and having me make the decision. [30] The proceedings continued with the learned Member leading the negotiations between the parties on the record:14 Member: We’re just talking about coming up with a figure that you can both live with, that would be better than finishing the hearing and getting a decision from me, because you don’t know where I am going to go. So I am just offering you the opportunity to do a straight negotiation. Now Mr Baldwin said he would consider a payment around $22,000. If you wanted to offer something higher than your $7,000, but less than $22,000 it may be that you could compromise on that. Is that something that would interest you? Would you like to make a counter-offer? … Mr Von Knorring: There was no mention of variations before, at any time during the job. Member: I understand that. I am not referring this negotiation to the work that I have got to do. I am just looking at a straight money amount. Would you be prepared to raise the money that you’re paying to Mr Baldwin any higher than the rough $7,000 that is currently on the table. [31] The ongoing discussion between Mr Von Knorring and Mr Baldwin is recorded in a further two pages of transcript with the learned Member continuing to encourage both parties to agree a figure to resolve the dispute.15 [32] When the parties did not agree the proceedings continued. [33] We consider this approach taken by the learned Member has resulted in procedural unfairness to the parties. [34] They are both self-represented. When they attended the hearing they were entitled to expect that the Tribunal would proceed to hear their evidence and submissions and at that point make a decision. [35] It was open to both parties to conclude that the learned Member had made a decision before the evidence was tested and before the submissions were made. She in fact said so. 14 Ibid, p 1-127, lines 25-45. 15 Ibid, p 1-128 to p 1-130. -- 7 of 16 -- 8 [36] This would have been unexpected and have been off putting to the parties. It no doubt impacted on the way they presented themselves and their evidence and submissions at the hearing. [37] The attempts to have the parties resolve the matter at the beginning and during the course of the hearing most likely exacerbated this confusion on their behalf. [38] It was apparent that Mr Von Knorring was confused in how the proceeding was being conducted and raised with the learned Member when settlement was suggested that he had not finished his evidence.16 [39] Alternative dispute resolution is one of QCAT’s functions. By the time matters come on for hearing the parties will have participated in at least one compulsory conference. [40] There are some occasions when on the day of the hearing it is appropriate for the presiding Member to offer the parties the opportunity to resolve the dispute before the hearing commences. However it is not appropriate to carry out those negotiations with the parties on the record and then proceed with the hearing. The parties should leave the hearing room to conduct those discussions. Alternatively another member (if available) could chair a compulsory conference. [41] If the member allocated to conduct the hearing conducts a conference they should only do so off the record and after explaining to the parties that in all likelihood they will not be able to continue the hearing if the matter does not resolve. [42] The indication by the learned Member as to the likely outcome before and after the hearing commenced, and the conducting of settlement negotiations during the giving of evidence meant that the parties were in all likelihood confused about the process which meant they were not given a satisfactory opportunity to present their case. [43] The haphazard way the proceedings unfolded led to further instances of procedural unfairness. [44] We are not convinced that Mr Baldwin got an appropriate opportunity to present his case. [45] Both Mr Von Knorring and Mr Baldwin were sworn in at the bar table at the commencement of the hearing and gave evidence from the bar table during the proceedings. A perusal of the transcript indicates that this arrangement led to confusion about who was giving evidence, who was cross-examining and who was making submissions. [46] Most of the morning (apart from the negotiations) was taken up with Mr Von Knorring asking questions of Mr Baldwin and the learned Member asking 16 Ibid, p 1-26. -- 8 of 16 -- 9 questions of both parties. Mr Baldwin considers he did not get the same opportunities as Mr Von Knorring. [47] The parties had been told at the beginning of the hearing17 that Mr Baldwin would be given the opportunity to ask questions of Mr Von Knorring after he had been asked questions. [48] At the end of Mr Von Knorring’s cross-examination of Mr Baldwin the learned Member said:18 Member: What I am proposing to do is stop the cross- examination now. See if Mr Baldwin’s got – have you got any questions for Mr Von Knorring? No. Mr Baldwin: No. Not a … [49] Mr Baldwin did not have an opportunity to finish his response when the learned Member said: Okay. What I’m more – I didn’t think you would have. [50] The learned Member then went on to call for submissions from the parties. [51] Mr Von Knorring started to make submissions and then it would appear the hearing of evidence resumed with Mr Von Knorring raising questions about variations and both parties giving evidence about the variations. [52] At the end of that discussion the learned Member asked Mr Von Knorring whether he had any other issues because she would like to give Mr Baldwin a chance to speak. [53] She then said to Mr Baldwin that she had no questions for him as everything was sufficiently covered in the material. She asked him whether he wanted to ask Mr Von Knorring any questions or ‘whether he satisfied that everything that he wanted to say was covered by the material that he had filed’.19 [54] Mr Baldwin did not press for an opportunity to give submissions. We get the impression however that this may have been as a result of the loose manner in which the proceedings had unfolded. [55] The Tribunal does have an obligation when conducting a hearing to act ‘with as little formality and technicality’20 but this is only to the extent that a ‘proper consideration of the matters before the Tribunal permits’.21 [56] In this case we consider that the lack of structure to the proceedings together with the learned Member’s disclosing her view in the matter whilst 17 Ibid, p 1-22, line 45. 18 Ibid, p 1-93, lines 10-25. 19 Ibid, p 1-139, line 35. 20 QCAT Act s 28(3)(d). 21 Ibid. -- 9 of 16 -- 10 encouraging settlement discussions has resulted in procedural unfairness to the parties. [57] This is a demonstrated error of law. [58] We allow the appeal on this ground. Did the learned Member err in law in her findings in relation to Mr Baldwin’s claim for variations? (a) Application of the Domestic Building Contracts Act 2000 (Qld) (DBC Act). [59] Both parties allege the learned Member made errors of law in her application of s 84 of the DBC Act when she considered Mr Baldwin’s claim for variations. [60] In his original claim Mr Baldwin had claimed the sum of $17,979.20 ‘being a reasonable price for variations performed’. Mr Von Knorring disputed the claim. He said the work the subject of the variation claims was included in the scope of work under the contract and that Mr Baldwin had not claimed any additional variations as defined in the DBC Act. [61] In her decision the learned Member correctly identified that the contract between the parties required:  the variations to be in writing; and  to be in accordance with the terms of the DBC Act, s 80(2).22 [62] The learned Member then referred to s 84(4) saying it: … allows a variation sought by the building contractor and not otherwise complying with the Act to be recovered if the Tribunal is satisfied that there are exceptional circumstances; the contractor would suffer unreasonable hardship; and it would not be unfair to the building owner.23 [63] The learned Member disallowed all of the unsigned variations apart from one variation dated 2 August 2013. She allowed this variation in the sum of $3,379.20 pursuant to s 84(4) of the DBC Act. [64] Mr Von Knorring says the learned Member erred at law in allowing this variation. [65] Mr Baldwin says the learned Member erred in not allowing all of the variations. [66] The provisions of s 84(2) and (3) of the DBC Act provide in effect that variations can only be recovered if the building contractor complies with formal provisions set out in the act, or alternatively with the Tribunal’s 22 Reasons for decision, at [33]. 23 Ibid, at [34]. -- 10 of 16 -- 11 approval given on an application made as provided under the QCAT Act to the Tribunal.24 [67] Subsection (4) deals with approval by the Tribunal and provides that (4) The Tribunal may approve the recovery of an amount by the building contractor for a variation only if the tribunal is satisfied that - (a) either of the following applies- (i) there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation; (ii) the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and (b) it would not be unfair to the building owner for the building contractor to recover an amount. [68] The learned Member disallowed the bulk of the unsigned variations but she did allow the 2 August 2013 variation. She said she accepted Mr Baldwin’s evidence that this work had not been allowed for in the contract as it was not visible until the walls were removed.25 [69] She found (referring to the words in s 84(4)): … that there are exceptional circumstance (sic) because the damage was not visible until the walls were removed: the contractor would suffer unreasonable hardship: and it would not be unfair to Mr Von Knorring to have this extra work undertaken to make safe the property. [70] We accept Mr Von Knorring’s submission that the learned Member erred in making this determination. (i) Mr Baldwin made no application to the Tribunal under s 84(4) as required by that section. [71] The prospect of a claim under s 84 was first raised by the learned Member during the hearing. Mr Von Knorring and Mr Baldwin were effectively giving concurrent evidence about the variations claimed by Mr Baldwin when the Member said:26 Member: Now Mr Von Knorring, you understand that section 84 of the Domestic Building Contracts Act allows a variation sought by a building contractor not otherwise complying with the Act, and all the ones that aren’t signed, don’t. If the Tribunal is satisfied there are exceptional circumstances the contractor would suffer unreasonable hardship and it would not be unfair to the building owner. Have you had a look at that. Mr Von Knorring: Yes. 24 DBC Act s 84(1)-(4). 25 Reasons for decision at [38]. 26 Transcript of proceedings, p 1-118, line 10. -- 11 of 16 -- 12 Member: Okay. Really – can I suggest that rather than going through these variations item by item, you probably should be addressing me on that section, as to why I shouldn’t allow the variations that are not signed.27 [72] As no application under s 84 had been made by Mr Baldwin either in his application or orally, the Tribunal’s power to make an order under s 84(4) had not been enlivened. The learned Member made an error of law in making the order. (ii) Mr Von Knorring was denied natural justice in the way the learned Member raised the possibility of an order under s 84 and then proceeded to make the order. [73] Mr Baldwin had made no submissions that exceptional circumstances warranted the recovery of the variation. He gave evidence that the work was beyond the scope in the contract and not expected,28 but did not ask the Tribunal to draw the conclusion that this equalled ‘exceptional circumstances’. Likewise he had made no submission that he would suffer unreasonable hardship if not paid the variation. [74] The learned Member after raising the possibility of an order under s 84 said to Mr Baldwin: You’ve got to show me that there are exceptional circumstances why I should allow this variation, that you would suffer unreasonable hardship and if I didn’t allow it, and it would not be unfair to the building owner.29 [75] Mr Baldwin made some references to his written statement where he described the work that had been done. The learned Member then rephrased Mr Baldwin’s evidence:30 Member: … effectively, what you’re saying is there was more working in the bathroom than you thought. Mr Baldwin: Yes. Yes. Member: And so you wanted a variation, because when you took everything off, it was more than you thought it was going to be. [76] The learned Member then subsequently asked Mr Von Knorring ‘why wouldn’t Mr Baldwin be suffering unreasonable hardship to not give him money for extra work, once it was uncovered?’.31 [77] Mr Von Knorring had no notice that any consideration was going to be given to a claim under s 84. He was not given any opportunity to provide evidence on the issue of whether it would be unfair to him to recover an amount.32 He was given no opportunity to cross-examine Mr Baldwin on the issue of 27 Ibid, p 1-118, line 20. 28 Mr Baldwin’s Statement of Evidence filed 24 February 2014 at [10.6]-[10.12]. 29 Transcript of proceedings, p 1-119, line 35. 30 Ibid, p 1-121, line 5. 31 Ibid, p 1-121, line 20. 32 DBC Act s 84(4)(b). -- 12 of 16 -- 13 whether Mr Baldwin would suffer unreasonable hardship. He was therefore not prepared to give considered submissions on whether exceptional circumstances existed, whether Mr Baldwin would suffer unreasonable hardship and whether it would be unfair to him to make the order. Mr Von Knorring was denied natural justice by the learned Member. (iii) Mr Von Knorring also says the learned Member erred in that she made the finding that exceptional circumstances existed and Mr Baldwin would suffer unreasonable hardship when there was no evidence to support the findings. [78] We agree. [79] The only evidence from Mr Baldwin about the variation was that that the work the subject of it was unexpected, it was agreed to by Mr Von Knorring and that despite his reasonable efforts Mr Von Knorring would not sign it.33 [80] The learned Member found that this evidence was sufficient to support a finding of exceptional circumstances and unreasonable hardship.34 [81] The Court of Appeal has dealt recently with the issue of what is meant by ‘exceptional circumstances’ and ‘unreasonable hardship’ in the context of s 84(4) in the case of Allaro Homes Cairns Pty Ltd v O’Reilly & Anor.35 [82] As to ‘exceptional circumstance’ North J said: The phrase “exceptional circumstances” is not defined. It is found in an Act whose purpose or object is to achieve a reasonable balance between the interests of building contractors and building owners and to maintain appropriate standards of conduct in the industry. It may be vague but the matters that might be considered relevant to such an inquiry will be indicated by the particular way in which the Act was not complied with and the circumstances particular to the dispute. In this Act, it directs attention to those circumstances which are exceptional and warrant conferring upon the building contractor an entitlement to recovery for the variation which its conduct, by failing to meet the obligations imposed by the statute, deprived it.36 [83] The learned Member found that there were exceptional circumstances because the work the subject of the variation was not expected.37 That would be the case with a lot of variations. Even if factually correct (and that is not considered by us) this reason is insufficient at law to find that ‘exceptional circumstance’ existed. [84] In discussing what is meant by ‘unreasonable hardship’ North J said: The circumstance that a builder might be unpaid for work done does not necessarily lead to an inference that hardship is suffered. Something more 33 Mr Baldwin’s Statement of Evidence filed 24 February 2014 at [10]. 34 Reasons for decision at [39]. 35 [2012] QCA 286. 36 Ibid, at [15]. 37 Ibid, at [39]. -- 13 of 16 -- 14 than non-payment should be demonstrated to establish “unreasonable hardship” suffered from the operation of the Act.38 [85] Here Mr Baldwin gave no evidence of any unreasonable hardship that he might suffer. The learned Member made the finding presumably on the basis that he had not been paid. She did not however give any reasons for the finding. The lack of evidence to support the finding and the absence of reasons for the finding are errors of law. [86] Mr Von Knorring’s appeal on the ground that the learned Member erred in her application of s 84 is allowed. [87] Mr Baldwin says the learned Member having found that one variation was allowable on the basis that the work was unexpected, erred in not awarding the amount claimed for all of the variations pursuant to s 84. [88] As set out above no application was made by Mr Baldwin for an order under s 84. We find that the learned Member made no error in not awarding the balance of the variations under s 84. Mr Baldwin’s appeal on that ground fails. (b) Failure to consider Mr Baldwin’s alternative claim in quantum meruit? [89] Mr Baldwin made an alternative claim in his counter application for payment of the variations on the basis that Mr Von Knorring had been unjustly enriched by receiving of benefit as a consequence of Mr Baldwin having performed the work and he should be remunerated accordingly. [90] It is correct that the learned Member made no reference of this alternate claim in her reasons. [91] It is therefore not known whether the learned Member considered the application and dismissed it as unmeritorious or whether it was given no consideration at all. Neither Mr Von Knorring or Mr Baldwin were asked to make any submissions about the claim at the hearing. [92] We are inclined to find in those circumstances that no consideration of the claim was given by the learned Member and in those circumstances the learned Member has failed to give procedural fairness to Mr Baldwin in that respect. Did the Tribunal err in not allowing Mr Baldwin to claim interest on outstanding monies? [93] In his counter-claim Mr Baldwin had claimed interest on the monies he claimed to be owing under the contract at 5% in ‘accordance with the terms of the contract’. [94] The learned Member found that monies were owing to Mr Baldwin under the contract but refused the claim for interest. She said she was not satisfied that Mr Baldwin was able to establish an entitlement to interest because 38 Ibid, at [21]. -- 14 of 16 -- 15 ‘neither party validly terminated the contract and in view of the poor condition of the contract documentation’.39 [95] Mr Baldwin said this finding involved an error of law. We agree. [96] The contract provided for the owner to pay interest on overdue amounts at 5%. [97] There was no requirement for the contract to be validly terminated before the interest was payable. This finding involved an error of law. Did the learned Member err in law in her findings concerning the provision of certificates and keys? [98] Mr Von Knorring says the learned Member erred in finding Mr Baldwin only had to provide the certificates and keys after he paid Mr Baldwin the monies owing under the contract. [99] The learned Member gave no reasons for her finding that Mr Von Knorring was entitled to keys, warranty and certification ‘once he has paid any final outstanding monies’. This failure to give reasons is a sufficient error in law and we allow the appeal on that basis. [100] Mr Baldwin says the finding that he hand over the keys and certificates was wrong at law because the Tribunal had no powers to do so. He says s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) (which gives the Tribunal jurisdiction power to make certain orders in resolving a building dispute) does not include a power relating to an order for delivery of certificates, warranty or keys. This ground of appeal is rejected. The list of powers in s 77 is not an exhaustive list. It is indicative only and does not limit the orders the Tribunal may make.40 Conclusion [101] The learned Member made a number of errors of law as set out in this decision and reasons. [102] The parties have also relied on grounds of appeal which raise questions of fact and questions of mixed law and fact. Having decided the appeal on the grounds which raise questions of law we have not conducted a rehearing of the matter. This needs to be done before a new decision can be made. We are unable to substitute a new decision. The parties should be given a fresh opportunity to present their cases in a manner which affords them procedural fairness. 39 Ibid, at [56]. 40 QBCC Act s 77(2). -- 15 of 16 -- 16 [103] We intend to remit the matter back to the Tribunal (before a different Member) for hearing. This reconsideration by a new Tribunal will involve a fresh hearing and at which time these issues the subject of the other grounds of appeal will in any event be reheard. [104] The building matter should be relisted for a directions hearing in the building list. -- 16 of 16 --