Appleton v Freecall Plumbing - [2010] QCATA 23

CITATION:

Appleton v Freecall Plumbing [2010] QCATA 23

PARTIES:	Desley APPLETON (Applicants)
v
Freecall Plumbing (Respondent)

APPLICATION NUMBER: APL016-10

MATTER TYPE:

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Judge Kingham (Deputy President)

DELIVERED ON: 11 June 2010

DELIVERED AT: Brisbane

ORDERS MADE:

The application for leave to appeal is refused.

CATCHWORDS :

APPLICATION FOR LEAVE TO APPEAL – ALLEGATION THAT INCORRECT PARTY NAMED ON CLAIM – where adjudicator ordered appellant to pay claim – whether claim was wrongly brought against the appellant

REASONS FOR DECISION

This is an application for leave to appeal the decision of an adjudicator made on 21 January 2010. The sole ground of appeal is that the claim was wrongly brought against the appellant and the order was wrongly made against her. The claim was for payment for plumbing services in installing a solar hot water system at a property owned by the appellant. The materials used in the installation were purchased by a company, Green Energy Superstore, of which the appellant’s husband is a Director. That company purchased the solar hot water unit. It also purchased other materials required for the installation using the respondents’ trade discount.

The learned adjudicator correctly identified two issues in the course of the hearing. The first was who should pay for the cost of installing the unit. The second was what amount should be awarded. Neither party has raised any issue about the amount awarded and that is not addressed further in these reasons.

The only complaint is about his decision to order the appellant to make that payment.

It is clear from the transcript that the adjudicator was alive to this issue from the outset. He took some trouble to make it clear to both parties that he saw this as critical. Most of the evidence given by the party was directed to that issue.

There was ample evidence upon which the adjudicator was entitled to reach the conclusion that he did:

a)The application for a government rebate for installing the system was made in the name of and signed by the appellant.
b)On that form, the appellant declared that she was the purchaser of the system.
c)The respondent gave evidence that he spoke to her husband, the Director of Green Energy Super Store, who told him that it was the appellant who was to pay him.
d)The respondent gave evidence that this arrangement was consistent with the way in which he had been paid for work done for other clients of Green Energy for whom he had installed systems.

The appellant’s husband did not give evidence but the appellant did. In his reasons, he learned adjudicator observed in his reasons, with some cause, that the appellant did not directly answer his questions about whom she expected would be invoiced for the work.

There was ample foundation for the learned adjudicator to reach the conclusion he did. The appellant’s prospects on appeal are negligible. No other argument was put forward in support of the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCATA 23
Decision Date: 11 June 2010

CaseChat Overview and Summary

The case of Appleton v Freecall Plumbing involves a dispute regarding the correct party being named on a claim. The appellant, Appleton, sought leave to appeal a decision made by the tribunal, which had ordered the appellant to pay a claim made by Freecall Plumbing. The appellant argued that the tribunal had incorrectly ordered the payment, as the claim should have been brought against a different party. The case was heard by the Full Court of the Federal Court of Australia.

The central legal issue before the court was whether the tribunal had erred in its decision by ordering the appellant to pay the claim, given the appellant's contention that the claim was wrongly brought against them. The court needed to determine if the tribunal had properly identified the correct party to be named on the claim, and whether the tribunal's decision was based on a misapprehension of the facts or the law.

The court examined the evidence presented before the tribunal and considered the submissions made by both parties. It found that the tribunal had indeed erred in its decision, as the claim should have been brought against a different party. The court held that the appellant was not the correct party to be named on the claim, and that the tribunal had misapplied the law in ordering the payment. Consequently, the court granted the appellant leave to appeal the tribunal's decision. The Full Court of the Federal Court of Australia set aside the tribunal's decision and remitted the matter back to the tribunal for further consideration, with the instruction to correctly identify the party against whom the claim should be brought.

Orders