Ash Industries Pty Ltd v Plumb

[2010] QCATA 53

CITATION: Ash Industries Pty Ltd v Plumb [2010] QCATA 53

PARTIES:	Ash Industries Pty Ltd (Applicant/Appellant)
v
Robert Lindsay PLUMB (Respondent)

APPLICATION NUMBER:           APL132-10              

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   21 September 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  1. Grant leave to appeal;

2. Allow the appeal; and,

3. Return the matter for rehearing in

the Minor Civil Disputes’ jurisdiction,

with leave to the parties to adduce

further evidence.

CATCHWORDS : 

MINOR CIVIL DISPUTE – CONTRACTUAL DISPUTE – WARRANTIES – where applicant constructed a driveway at the respondent’s premises – where respondent alleged large cracks appeared on driveway – where applicant did not make specific warranties in respect of driveway – where evidence did not establish cause of cracks – where respondent obtained verbal quotes for repairing cracks – where adjudicator awarded respondent sum based on verbal quotes – where applicant alleges decision did not accord with weight of evidence – whether error of law, mixed law and fact, or fact

MINOR CIVIL DISPUTE – EVIDENCE – FINDINGS OF FACT – whether findings of fact and inferences supported by the evidence – whether contrary to the inferences

PRACTICE – REASONS – whether reasons properly address evidence and findings

Queensland Civil and Administrative Tribunal Act 2009, ss 43, 142(3)

Attorney-general v Kehoe [2001] 2 Qd R 350, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied

Canada (Director of Investigation and Research) v. Southam Inc [1997] S.C.R. 748, cited

Chambers v Jobling (1986) 7 NSWLR 1,cited

Collector of Customs v Agfa-Gevaert Ltd (1995) 186

CLR 389, cited    

Dearman v Dearman (1908) 7 CLR 549, cited

Fox v Percy (2003) 197 ALR 201, applied

Tully v McIntyre [2001] 2 Qd R 338, cited

REASONS FOR DECISION

1. This appeal concerns a driveway at Mr Plumb’s property at Anstead. It was constructed by Ash Industries Ltd in early 2007 but, as Mr Plumb alleges, large cracks began to appear in it about 10 months later. He brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for $12,985.20 and, after a hearing by an adjudicator on 9 April 2010, was awarded that sum.

1. Documents tendered at the hearing include a quotation from Ash Industries to construct an asphalt driveway for $12,827.16 plus GST (for a total of $14,109.88). Ash Industries’ ultimate invoice to Mr Plumb (and Ms Kerry Plumb) of 8 February 2007 was for $14,110.54 and, as is not in issue, followed the construction of a driveway in accordance with the quotation.

1. Mr Plumb’s complaint is that the initial cracks, appearing some 10 months after February 2007, were only temporarily repaired and by 2009 large cracks had appeared all over the driveway which Ash Industries has wrongly refused to repair. His evidence at the hearing was to the effect that he had ‘verbal quotes’ for the rectification of the cracking problem, the lowest of which was $12,985.20.

1. At the hearing Mr Plumb appeared for himself and Mr…