Cooper & Anor v Jezer Construction Group P/L [2003] QCA 335

SUPREME COURT OF QUEENSLAND CITATION: Cooper & Anor v Jezer Construction Group P/L [2003] QCA 335 PARTIES: JOHN COOPER and RICHARD VRANESIC (trading as REGAL INTERIOR LININGS) (applicants) v JEZER CONSTRUCTION GROUP PTY LTD ACN 054 548 319 (respondent) FILE NO/S: Appeal No 5591 of 2003 DC No 1546 of 2002 DIVISION: Court of Appeal PROCEEDING: Application for leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane DELIVERED EX TEMPORE ON: 1 August 2003 DELIVERED AT: Brisbane HEARING DATE: 1 August 2003 JUDGES: de Jersey CJ, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal refused with costs to be assessed 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 – where appellant seeks leave to appeal from District Court decision – where amount in dispute is small – whether an issue of sufficient general importance existed to warrant the exercise of discretion in favour of granting leave to appeal District Court Act 1967 (Qld), s 118 St Vincent’s Hospital Toowoomba Ltd v Hardy [1997] QCA 364; Appeal No 7477 of 1997, 22 September 1997, cited COUNSEL: R Jones for the applicants D A Skennar for the respondent -- 1 of 5 -- 2 SOLICITORS: Lambert & Ho Lawyers for the applicants Conomos Lawyers for the respondent WILLIAMS JA: Consequent upon negotiations which took place in January 2000, the applicants undertook to perform work with respect to the construction of residential premises and subsequently carried out work on the building. Disputes arose, and in consequence on 13 August 2001 the applicants commenced proceedings against the respondent before the Queensland Building Tribunal. In the course of the hearing the claim was amended so that the Tribunal member was called upon to adjudicate upon a claim for $80,430.51. The Tribunal member published substantial reasons on 8 April 2002 and determined that the respondent should pay the applicants the sum of $22,998. From that decision the respondent appealed to the District Court, pursuant to section 92 of the Queensland Building Tribunal Act 2000. That was an appeal as of right and was, "by way of re-hearing unaffected by the Tribunal's decision on material before the Tribunal and any further evidence allowed by the District Court". For reasons delivered on 28 May 2003, the learned District Court Judge allowed the appeal and set aside the judgment of the Queensland Building Tribunal. The applicants now seek leave pursuant to section 118(3) of the District Court Act 1967 to appeal to this Court. An order is sought reinstating the judgment of the Tribunal. As was said in St Vincent's Hospital Toowoomba Ltd v. Hardy (1997) -- 2 of 5 -- 3 QCA 364, this Court has a discretionary power to give leave which is not limited in any way. Each side has submitted an outline of argument dealing with the substantive issues which would be raised if leave to appeal were granted. The central issue in the proceeding is whether the respondent contracted as agent for a disclosed principal, or is personally liable. There is no doubt as to the relevant legal principles. They are well-established. The question to be decided below was how those principles applied to the rather special facts of this case. Any consideration by this Court would be focused primarily on the facts and not on matters of legal principle. The legislation has expressly provided for an appeal as of right to the District Court and that carries the implication that such an appeal should ordinarily dispose of the matter. In the present case, the amount in dispute is small and no issue of general importance has been identified. It has frequently been observed that it is not necessarily sufficient to assert that the decision sought to be appealed against is arguably wrong. Where the amount in dispute is small and there has already been an appeal, this Court would ordinarily only grant leave where some issue was identified warranting the exercise of discretion in favour of granting leave. It is sufficient for present purposes to say that the material before the Court does not establish a ground for exercising -- 3 of 5 -- 4 the discretion in favour of granting leave. Leave to appeal should be refused. THE CHIEF JUSTICE: I agree. MACKENZIE J: I agree. THE CHIEF JUSTICE: The application is dismissed. MS SKENNAR: I ask for the costs of the application, your Honours. THE CHIEF JUSTICE: With costs to be assessed. -- 4 of 5 -- -- 5 of 5 --