QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Mackenzie v Leroy Palmer Consulting Engineers Pty Ltd & Anor [2025] QCATA 10	
PARTIES:	robina jane ross mackenzie	

(applicant/appellant)	

	v	
	leroy palmer consulting engineers pty ltd 	

(First respondent)	

rod grieve renovations pty ltd 	

(Second respondent)	

APPLICATION NO/S:	APL332-23	
ORIGINATING APPLICATION NO/S:	BDL167-21	
MATTER TYPE:	Appeals	
DELIVERED ON:	12 February 2025	
HEARING DATE:	30 January 2025	
HEARD AT:	Brisbane	
DECISION OF:	Senior Member Traves
	
ORDERS:	1.	The application to rely on fresh evidence is refused.
2.	Leave to appeal is refused.
3.	The appeal is dismissed.	
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant applied for leave to appeal – where applicant applied for leave to rely on fresh evidence – whether evidence reasonably available at first instance – whether error of fact or mixed law and fact – where new matter raised on appeal – whether point is one of law or of mixed fact and law – whether in the interests of justice to consider the point – whether matter should be remitted to original decision-maker for reconsideration
Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147
Allen v Queensland Building and Construction Commission [2023] QCATA 66
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404
Crime and Corruption Commission v Lee [2019] QCATA 38
Campbell v Queensland Building and Construction Commission [2021] QCATA 34
	
APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	On 9 August 2023 a decision was made ordering that Ms Mackenzie’s claims against the respondents for breach of contract and in negligence be dismissed and for her to pay $1,942 to Leroy Palmer Consulting Engineers Pty Ltd and $7,590 to Rod Grieve Renovations Pty Ltd. Oral reasons were given for the decision. 
[2]	On 9 October 2023 the applicant filed an application for leave to appeal seeking to overturn that decision. On 24 November 2023 the applicant filed an application for leave to rely on fresh evidence. An application to stay the original decision was refused on 31 October 2023. 
[3]	On 7 February 2024 the Appeal Tribunal directed that the application for leave to appeal and the application for fresh evidence were to be heard and determined together.
[4]	Ms Mackenzie states she appeals the original decision on questions of mixed law and fact. An appeal on a question of fact or on mixed law and fact may only be made with the leave of the Appeal Tribunal. Ms Mackenzie has not made any submissions addressing the issue of leave. 
[5]	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.
[6]	Accompanying Ms Mackenzie’s application for leave to appeal is a document headed “Response to Reasons for Decision for QCAT Case No BDL167-21”. The document is over 80 pages in length, not including attachments. The document is set out by reference to broad headings which are not formulated as grounds of appeal. 
Decision of the Member 
[7]	Ms Mackenzie is the owner of a property in Killarney which had been moved from the front of her property towards the back. In 2020, due to the movement she had been experiencing at her dwelling, she engaged the first respondent consultant engineers to provide a report about the issues affecting the structural integrity of the dwelling and any rectification work required to address those issues. The first respondent recommended tightening loose subfloor rod braces, adding extra subfloor rod braces, and filling soil cracks with sand to reduce voids. 
[8]	The second respondent was engaged to do the rectification work.
[9]	The parties were self-represented and, understandably, were unable to formulate their cases with strict or obvious adherence to legal principle. The Member said that, effectively, Ms Mackenzie was seeking damages, payment for rectification work and relief from payment of outstanding moneys to the first and second respondent.
[10]	The first respondent counter claimed for the outstanding amount of $1,584 and the second respondent counter claimed for the outstanding amount of $7,590.
[11]	The learned Member found in favour of the respondents, dismissing Ms Mackenzie’s claims and ordering she pay the respondents the claimed amounts. In arriving at that decision the learned Member found:
(i)	There was insufficient evidence that the agreement between Ms Mackenzie and either the first respondent or the second respondent contained a term that the bracing to be installed was to match the existing bracing.
(ii)	The building works performed by the second respondent were to comply with an implied term that the works complied with legal requirements and were not defective.
(iii)	The evidence from the QBCC was that the work performed by the second respondent was not defective.
(iv)	Given that Ms Mackenzie had the onus of proof and that there was no evidence there had been a breach of contract or any negligence by the second respondent, Ms Mackenzie’s claim against the second respondent must fail.
(v)	Any claim that Ms Mackenzie was somehow “corralled” into entering the contract with the second respondent or that the contract was otherwise unenforceable had not been made out.
(vi)	The second respondent was contracted to provide an assessment of issues affecting the structural integrity of the dwelling which were relevant to the movement issues being experienced by Ms Mackenzie at the dwelling.
(vii)	There was insufficient evidence to demonstrate that issues such as wind factors, soil types and, for example, the absence of tie-downs to a roof, were matters an engineer should inspect in the context of a brief to report on movement issues at a dwelling or that it would be reasonable for an engineer to do so.
(viii)	There was no expert evidence from an engineer or other evidence sufficient to show any negligence on the part of the first respondent, including that showed the report provided was deficient.
(ix)	In relation to the placement of sand around the piers, the document from Osbourne Lane Consulting Engineers did not establish that the use of sand was not appropriate for the stumped premises in question and, in circumstances where the author of the document was not available for cross-examination and the first respondent’s evidence was that the use of sand was appropriate, Ms Mackenzie’s onus has not been satisfied.
(x)	There was insufficient evidence to establish a breach of contract or a breach of duty of care by the first respondent had occurred.
(xi)	Further, even if a breach had been established, there was insufficient evidence to show that the cost of restumping (as provided by Bohm Industries) was in any way linked to any failure of either respondent, for example, that any work performed or recommended by either of them had caused or exacerbated issues at the dwelling.
Application for leave to rely on fresh evidence 
[12]	Ms Mackenzie made an application to rely on fresh evidence on 24 November 2023. The application sought to rely on:  
(a)	a desktop analysis by Brad Rimmelzwaan, Principal Engineer, eCoast Engineering dated 19 September 2023.
[13]	By submissions dated 28 February 2024, Ms Mackenzie also sought to rely on: 
(b)	a structural condition/damage report by Maxwell Hall of Olivotto Consulting dated 19 February 2024;
(c)	Leroy Palmer BPEQ records and EA record; and
(d)	A pre-sale building inspection report by Regional Reports Pty Ltd dated 9 February 2019.
[14]	The Appeal Tribunal, in considering an application for leave to rely on fresh evidence made pursuant to s 147(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), at least in relation to an appeal on a question of fact, or of mixed law and fact, applies the usual tests for fresh evidence. These rules are those set out, for example, in Clarke v Japan Machines (Australia) Pty Ltd.
[15]	The “usual rules” are replicated in the directions issued by the Tribunal which required Ms Mackenzie to explain in her submissions supporting her application to rely on fresh evidence: why the fresh evidence was not available to the tribunal below, why it is important, and why it should be accepted.
[16]	The rationale behind the rules was explained by Judicial Member McGill in Allen v Queensland Building and Construction Commission:
The reason why additional evidence on appeal is confined as set out in Clarke in cases where there has already been the opportunity to put forward evidence at first instance is that otherwise the significance of the first proceeding is diminished, and it becomes just a preliminary to an appeal, where the full range of evidence is mounted. That is contrary to the efficient use of resources, and the principle that there should be an end to litigation, both of which apply as much to the Tribunal as to a court. So parties to a proceeding in the Tribunal are expected to put forward full evidence at a hearing on the merits, and it is appropriate that the discretion in section 147(2) be exercised in accordance with the fresh evidence rules in such cases. So far as this appeal is concerned, I propose to apply the fresh evidence rules to the additional evidence sought to be relied on by the appellants.
[17]	I propose to consider the points Ms Mackenzie has raised in the 80 page submission accompanying her application for leave to appeal, discerning as best I can what amounts to grounds of appeal, and to determine whether any fresh evidence on these matters should be admitted.
The first respondent’s professional qualifications 
[18]	Ms Mackenzie has raised an issue with respect to Mr Leroy’s qualifications in her application for leave to appeal. Her argument appears to be that Mr Leroy is only registered as a civil engineer and therefore, relevantly, did not comply with the scope of works which included “inspection of the existing residence by a registered practicing structural engineer”.
[19]	This argument was not raised at first instance, indeed Ms Mackenzie refers to Mr Leroy as a structural engineer in her opening.
[20]	It is not possible to raise an issue for the first time on appeal. That said, it is not clear what consequences flowed even if Mr Leroy was indeed not registered as a structural engineer or supervised by a structural engineer at the time he wrote the structural engineering report for Ms Mackenzie.
[21]	These issues raised by Ms Mackenzie are not matters appropriate to be dealt with now, on appeal. It follows that the application to rely on documents setting out Mr Leroy’s professional qualifications as fresh evidence is also refused. I would add, in that respect, that such evidence could have been led at the trial hearing.
Nature of engagement of parties in the matter 
[22]	Ms Mackenzie appears to be arguing that Mr Palmer, in breach of his contract with her, disclosed the Leroy Palmer Engineers report to Mr Grieve. This appears to be the first time this argument has been raised. It could have affected the manner in which the hearing at first instance was conducted by the respondents, who may have called relevant evidence. Accordingly, this is not a matter which can now be raised on appeal. In any event, the clause Ms Mackenzie seeks to rely upon arguably does not apply given it excludes the situation where information is disclosed to a third party to benefit the scope of works. Further, even if a breach were established, it is not clear what consequences in terms of damages would flow from the breach. 
[23]	Ms Mackenzie does not articulate any error of fact or law under this heading although she does refer to the Members’ reasons where he states the “respondent engaged the second respondent…to carry out works”. She does not identify this as an error by the Member. In my view, in any event, this was a slip by the learned Member who meant to say the applicant engaged the second respondent when he stated that “subsequent to engaging the first respondent, the respondent engaged the second respondent…” The matter certainly proceeded on the basis that the Member and the parties were of the view that the applicant entered into a contract with the second respondent.
[24]	The discussion under this heading does not give rise to a valid ground of appeal.
Procedural fairness and s 167 of the QCAT Act 
[25]	Ms Mackenzie appears to argue that because the learned Member was constituted that morning to hear the matter and had only recently been appointed a Member, that he should not have been constituted to determine the matter which was a complex building dispute, requiring someone with special knowledge or expertise.
[26]	There is no basis for arguing the Member was unsuited to hear the matter or that he had not read the material before he delivered oral reasons.
[27]	These points do not give rise to a valid ground of appeal.
Burden of proof 
[28]	Ms Mackenzie appears to take issue with the learned Member’s statements to the effect that she has not proved her case, either with respect to showing the work by the second respondent was defective or what loss flowed from the allegedly defective work.
[29]	In particular, Ms Mackenzie says that the Member made an error of fact in finding the tribunal did not have before it sufficient evidence that the agreement to carry out the works contained a term that the bracing was to match the original bracing or be other than what would ordinarily be implied, that is, that the work not be defective.
[30]	Ms Mackenzie disagrees with that finding and points to attempts she says she made to communicate the original rod bracing design by sending it to Mr Palmer who she says forwarded it by email to Mr Grieve. It is not clear how this proves the contract between Ms Mackenzie and the second respondent contained a term that that the bracing was to match the existing bracing, that is, of 16m gauge with plates welded to the stumps and that the location of the adjustment buckle was to be in the middle of the bracing. Ms Mackenzie also refers to s 28 of the QCAT Act, presumably because it provides that the tribunal is not bound by the rules of evidence. If Ms Mackenzie is seeking to submit that this means the Tribunal need not strictly abide by the rules as to burden of proof, I do not accept her submission. The rules as to burden of proof are fundamental rules of justice. If Ms Mackenzie brings an application alleging she has suffered loss or damage because of a breach of contract or negligence, then the responsibility for establishing that rests with Ms Mackenzie. 
[31]	Further, it is not appropriate for Ms Mackenzie to seek to re-agitate this issue on appeal. The learned Member was entitled to find on the material before the Tribunal that there was insufficient evidence that any such term had been imposed. He has not made an error in doing so.
QBCC Act, Schedule 1B 
[32]	Ms Mackenzie appears to argue that she did not receive a valid written contract from the second respondent to carry out the works as required by s 13 of Schedule 1B to the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). There is no mention of this issue in the hearing at first instance and I cannot find a reference to it in the written original application or amended application for a building dispute.
[33]	On 23 April 2020 Mr Grieve emailed Ms Mackenzie a quote for the scope of works for “sub-floor alterations” from Rod Grieve Renovations Pty Ltd dated 23 April 2020. 
[34]	In a letter to the Tribunal dated 19 October 2021, Mr Grieve states that he forwarded a quote to Ms Makenzie and that “she rang me and accepted the quote and requested that one (1) extra complete brace and three (3) complete brace extensions be done at the same time”.
[35]	The contract between Ms Mackenzie and the second respondent is a level 1 regulated contract, being a domestic building contract for which the contract price is more than the regulated amount ($3,300) but less than the level 2 amount ($20,000). Section 13 of Schedule 1B to the QBCC Act provides as follows:
13 Requirements for contract—level 1 regulated contract
(1) 	This section applies to a level 1 regulated contract.
(2) 	The contract must be in a written form, dated and signed by or on behalf of each of the parties to it.
(3)  	The contract must contain all of the following—
(a)		the names of the parties to it, including the name of the building contractor as it appears on the contractor’s licence;
(b) 	the building contractor’s licence number as it appears on the   building contractor’s licence;
(c)	a description of the subject work;
(d)	any plans and specifications for the subject work;
(e)	the contract price or the method for calculating it, including the building contractor’s reasonable estimate;
(f)	a provision that states the date for practical completion or how the date is to be determined;
(g)	a conspicuous notice advising the building owner of the right the owner may have to withdraw from the contract under schedule section 35.
(4)	The contract must also comply with all other requirements prescribed by regulation.
(5)	The contract has effect only if it complies with subsection (2).
[36]	The contract must be in writing, dated and signed by each party to have effect. It appears that the contract was not signed by Ms Mackenzie, who, on the evidence given by Mr Grieve, accepted the quote orally. There is no reference to any subsequent written contract between them.
[37]	This issue was not raised in the trial. A matter, generally, will not be able to be raised for the first time on appeal. This is particularly the case where the point may have been met by calling evidence below. The exception is where all the facts have been established beyond controversy or where the point is only one of construction or of law. Otherwise, the rule is strictly applied. In this case, the provision on which Ms Mackenzie seeks to rely does not preclude a claim in quantum meruit. Had Ms Mackenzie raised the issue of the application of s 13 of Schedule 1B in the trial, the second respondent may have sought to respond by making a claim in quantum meruit.
[38]	In those circumstances, it is simply not in the interests of justice to permit the point to be raised for the first time before the Appeal Tribunal. Accordingly, leave is not given to raise this ground of appeal.
[39]	I turn now to determine the application for leave to rely on fresh evidence, excluding in respect of evidence relevant to Mr Palmer’s qualifications which I have already refused.
Application for fresh evidence 
eCoast Engineering desktop analysis 
[40]	Ms Mackenzie submits that she tried many times within the limits of her disability to engage a structural engineer to provide a report for her property, but businesses did not respond or were unable to assist. 
[41]	The evidence is important, Ms Mackenzie submits, because it “confirms” that the first respondent’s advice on sub-frame tightening and sand filling may not have been the most effective solution given the extreme reactivity of the site; that sway during storms is primarily related to roof, wall and sub-framing bracing which negates the Member’s assertion that the scope of works, being confined to movement issues, was accordingly limited to sub-floor issues; states that the bearers and joists are overstressed by approximately 20% with rectification recommendations; states that any lateral sway or shuddering walls during high wind events are likely caused by stump movement as a result of extremely reactive clays with seasonal shrink and swell effects, reducing the lateral capacity of the soil around the concrete stumps and provides advice regarding house stumping and the recommended type of sub-frame bracing. 
[42]	Ms Mackenzie submits she will suffer a substantial injustice if the evidence is not allowed, and her matter is not ‘re-opened’.
[43]	This fresh evidence of a structural engineer is clearly evidence that could have been lead at the hearing below but was not. I agree with the submissions of the respondents that Ms Mackenzie was given ample time to do so, the matter not having been listed for hearing for some three (3) years.
[44]	I do not accept that Ms Mackenzie was unable, using reasonable endeavours, to obtain the evidence. The application to rely on the desktop analysis is refused.
Olivotto Consulting dated 19 February 2024
[45]	Ms Mackenzie submits that the report could not have been obtained at the time of the original hearing. This was because Ms Mackenzie said she considered it inappropriate to approach Mr Olivotto at the time because he was then consulting with Osborn Lane Engineers who operated from the same address as some staff who provided the original pier design for the property. Ms Mackenzie said she only became aware “afterwards” that Mr Olivotto had commenced his own consultancy in Warwick.
[46]	The Olivotto report states that filling shrinkage voids within the subfloor soil sand is “not advisable” and could cause additional movement and damage to the residence if the moisture profiles were to change. The report concludes that restumping is not necessary and that, as at February 2024, the building had appropriate structural stability.
[47]	The report is important, she submits, because it goes to the damage post the engineering advice and building works conducted. 
[48]	I do not accept that it was inappropriate for Ms Mackenzie to request a report from Mr Olivotto for the reasons she gives. In any event, even if I accept that it was, it does not explain why Ms Mackenzie did not obtain a report from another structural engineer addressing the appropriateness of the use of sand in the way recommended in the Palmer report, and whether its use caused any damage to the dwelling. I note that in the original hearing Ms Mackenzie, in defending her reliance on Mr Bohm as a witness, says she could “not afford a 20-to-30-thousand-dollar full assessment of the property by an engineer as such”. This suggests Ms Mackenzie made a conscious decision not to obtain expert engineering evidence for the original hearing.
[49]	The Olivotto report is also not particularly persuasive. It is brief and does not give any evidence in support of the views expressed in the report in relation to the use of sand to fill shrinkage voids. I note the conclusion that restumping is not necessary goes against Ms Mackenzie’s case.
[50]	For the reasons above, I refuse leave to rely on the Olivotto report.  
Pre-sale building inspection report dated 9 February 2019 
[51]	Ms Mackenzie applies to rely on an extract from the pre-sale report as fresh evidence because it provides a “baseline” against which damage to the property may be measured.
[52]	This report was clearly available at the original hearing and leave to rely on it on appeal is refused.
Conclusion 
[53]	The application for leave to rely on fresh evidence is refused. 
[54]	I conclude, for the reasons given above, there is no reasonable argument of error raised by any of the grounds of appeal. Accordingly, leave to appeal is refused. The application for leave to appeal or appeal is dismissed.