Bradlyn Nominees Pty Ltd v Saikovski
[2012] QCATA 39
•23 February 2012
| CITATION: | Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 |
| PARTIES: | Bradlyn Nominees Pty Ltd ABN 68099241282 (Applicant) |
| v | |
| Leo Alexander Saikovski (Respondent) |
APPLICATION NUMBER: APL315-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Michelle Howard, Member |
DELIVERED ON: 23 February 2012
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal is refused.
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MIXED QUESTIONS OF FACT AND LAW – COMMERCIAL BUILDING DISPUTE – CONTRACT LAW – CONTRACT INTERPRETATION – PAYMENT OF INVOICES – where the Respondent had brought a claim against the Applicant company for unpaid invoices – where the Tribunal had made orders for the payment by the Applicant company of the amount of $28,480.32 to the Respondent for unpaid invoices – whether the Tribunal erred in its findings of fact – whether the Tribunal erred in its interpretation of the contract – whether the Tribunal erred in its findings on credit – whether the counter-claim is substantial and warrants a rehearing Queensland Civil and Administrative Tribunal Act2009, ss 3, 4, 28, 32, 142 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
The matter was heard and determined on the papers in the absence of the parties, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Justice Alan Wilson, President
I have had the advantage of reading Ms Howard’s Reasons in draft. I agree with those Reasons and her conclusions, and the order she proposes.
Ms Howard, Member
Mr Saikovski made a claim against Bradlyn Nominees Pty Ltd, arising out of a contract between them, dated 22 August 2007. Under the contract, Mr Saikovski built four townhouses for Bradlyn Nominees. The claim was for $28,480.32 for unpaid invoices from February to April 2009. Bradlyn Nominees counter-claimed $278,093.31, or in the alternative, $1,036,696.70.
There was a two day hearing on 15 and 16 September, 2011. On the first day of the hearing the Tribunal determined, as a preliminary issue, that the contract between the parties was a costs plus contract. The presiding Member gave oral reasons for that decision.[1] That oral decision has not been appealed.
[1] Transcript 15/9/201, pp 24-26.
After the hearing, the Tribunal made orders that Bradlyn Nominees pay the amount of $28,480.32 to Mr Saikovski, and dismissed the counter-claim. It gave that decision, and its written reasons for that decision, on 19 October 2011.
Bradlyn Nominees has filed an application seeking leave to appeal or appeal the decision of 19 October 2011. Both parties were directed to, and have provided, written submissions through lawyers in respect of the application for leave to appeal or appeal. Bradlyn Nominees has also provided a supplementary submission, which has been objected to by Mr Saikovski. However, I would be prepared to allow it in the interests of justice: although a direction had not been made to facilitate its filing, it is not unusual to allow submissions in reply in order to ensure procedural fairness.
Application for leave to appeal or appeal
An appeal on a question of law may be made from a final decision of the Tribunal.[2] However, an appeal on a question of fact, or a question of mixed law and fact may only be made with the leave of the Tribunal.[3]
[2] Queensland Civil and Administrative Tribunal Act 2009, s 142.
[3] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b).
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the Applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the Applicant, caused by some error?
Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[4]
[4] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5] The appeal process is not an opportunity for a party to again present their case. It is the means for correcting error made by the Tribunal which decided the proceeding.
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
In deciding an appeal against a question of law only, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the Tribunal that made the decision for reconsideration, with or without additional evidence and other directions; or make any other order it considers appropriate.[6]
[6] Queensland Civil and Administrative Tribunal Act 2009, s 146.
On an appeal against a decision on a question of fact only, or a question of mixed fact and law, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[7] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set it aside and substitute its own decision.[8]
[7] Queensland Civil and Administrative Tribunal Act 2009, s 147.
[8] Queensland Civil and Administrative Tribunal Act 2009, s 147(3).
The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application.[9] A concise and helpful summary appears, in my view, in this passage from a decision of the Supreme Court of Canada:
‘Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.’[10]
Discussion and Decision
[9] See Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.
[10]Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, at [35] per Iacobucci J.
Bradlyn Nominees’ grounds of appeal are numerous. It seems to me that the grounds of appeal raised involve mixed questions of fact and law.
It appears that Bradlyn Nominees has appealed almost every significant finding made by the Tribunal that was contrary to its case at hearing. There is also similarity and overlap between some of the specified grounds of appeal.
Rather unhelpfully, the submissions of Bradlyn Nominees do not address the stated grounds of appeal either specifically or, in some cases, at all. The submissions filed in the application for leave to appeal or appeal contain some large portions of material which appear to be directly lifted out of the written submissions provided to the Tribunal following the hearing.
The submissions set out a variety of contentions in no particular order about the alleged facts, which appear to reflect Bradlyn Nominees’ case at the hearing, and some general submissions regarding case law about the interpretation of contracts.
In relation to the facts as found by the Tribunal, I would not disturb those findings. The Tribunal made findings about credibility[11], which the Member explained in some detail. Wherever there was a discrepancy between the evidence of Mr Saikovski and Ms Shaw, the Tribunal accepted Mr Saikovksi’s evidence. The findings made both about credibility and the substantive facts as found are, in my view, supported by the evidence before it. I would not disturb them, and this is reflected in the consideration set out below.
[11] Reasons for Decision [4]-[17].
There are some general submissions advanced by Bradlyn Nominees to the effect that the Tribunal Member ‘used the facts available to him to construct the terms of the contract in error’; that the Tribunal judicially rewrote the terms of the agreement to the detriment of Bradlyn Nominees; that the Tribunal’s findings on credit coloured the findings; and that Mr Saikovski is currently being investigated by the Queensland Police for theft from the building site that is the subject of the proceedings and therefore the Tribunals’ findings on credit were wrong; and, that the counter-claim is substantial and warrants a rehearing.
Mr Saikovski submits that the Tribunal’s findings on credibility were carefully and compellingly explained. He states that a representative of Bradlyn Nominees made the complaint to the Queensland Police that is referred to and that he has not been charged and he understands the complaint has been closed because it lacks substance.
The information regarding the Queensland Police investigation is in the nature of new evidence from both parties. Leave has not been sought from or granted by the Appeal Tribunal to rely upon new evidence but, in any event, I would not consider it either helpful or compelling if leave was sought.
It is not for the Appeal Tribunal to guess at the arguments that a party intended to make. Under the QCAT Act, the Tribunal’s charter is to deal with matters in a way that is accessible, fair, just and informal.[12] It is to be responsive to the needs of diverse persons coming before it.[13] It is not bound by procedures applying in courts and may inform itself in any way it considers appropriate.[14] As the High Court of Australia recently observed ‘resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.[15]
[12] Queensland Civil and Administrative Tribunal Act 2009, s 3(b).
[13] Queensland Civil and Administrative Tribunal Act 2009, s 4(e).
[14] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(b) and (c).
[15]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
Therefore, parties must take care in their dealings in Tribunal matters and act in their own interests throughout the conduct of the proceeding. In my view, this includes taking care in the making of an application for leave to appeal or appeal, and in providing submissions in support of it.
Nevertheless, despite the appellant’s failure to address its specified grounds of appeal, each specified ground of appeal and the arguments made in respect of each ground of appeal are addressed below, as far as they can be ascertained from the submissions, given the difficulties that I have identified.
Ground 1: The member erred in finding the respondent was experienced in the building industry and entered into the contract to build on a costs plus basis
As discussed above, the decision of the Tribunal that the contract was a costs plus contract has not been appealed.
The precise error relied upon in support of this ground of appeal is not entirely clear. However, Bradlyn Nominees contend that a finding should be made that the contract was a fixed price contract.[16] Apparently this is argued on the basis that the Member erred in his construction as he based his decision on facts that Mr Shaw was a builder; that he had influence in the negotiations; that no weight was placed on the fact that Mr Shaw was ill; that the Respondent did not raise the insured amount of the project; and that the plans were not varied.[17]
[16] Appellant’s submissions on appeal [57].
[17] Appellant’s submissions on appeal [57]-[58].
Submissions are also made that the amount of $800,000 referred to in the contract was Mr Saikovski’s true estimate based on his experience.[18]
[18] Appellant’s submissions on appeal [64].
Some submissions are made by Bradlyn Nominees on the law. In particular, these are to the effect that the correct approach to determining the agreement reached is generally an objective one, subject to exceptions including mistake[19], relying upon Taylor v Johnson.[20] Bradlyn Nominees appear to suggest that the Tribunal embarked upon a process of ‘judicial re-writing’[21] of the contract, contrary to the principles enunciated in Franklin Pty Ltd v Metcash Trading Ltd[22]. It also says that if a costs plus contract is entered into on the basis of an erroneous estimate, this may amount to a negligent misstatement, breach of collateral warranty, misleading or deceptive conduct, or even fraud.[23]
[19] Appellant’s submissions on appeal [50]-[56].
[20] (1983) 151 CLR 422.
[21] Appellant’s submissions on appeal [2], [3].
[22] [2009] NSWCA 407.
[23] Appellant’s submissions on appeal [48].
Mr Saikovski acknowledges the principles set out in Franklin Pty Ltd v Metcash Trading Ltd[24], but submits that Bradlyn Nominees submissions effectively ignore evidence given at the hearing. In particular, he refers to evidence given by himself and Herron Todd White. He submits that the Tribunal merely preferred the evidence of Mr Saikovski, supported by the contemporaneous written evidence.
[24] [2009] NSWCA 407.
The evidence before the Tribunal included that the directors of Bradlyn Nominees at the relevant time were Ms Alexandra Shaw and her husband, Mr David Shaw. Mr Shaw is a builder. Mr Shaw had been diagnosed with motor-neurone disease. However, Ms Shaw’s evidence is that he met with Mr Saikovski in the lead up to the signing of the contract. Mr Shaw and Ms Shaw both signed the contract on behalf of Bradlyn Nominees.
Bradlyn Nominees could not succeed in relation to the ground as far as it relates to the contract being a costs plus contract, as that decision has not been appealed.
As far as the balance of the ground of appeal can be sensibly considered, it may relate to the oral decision of the Tribunal where the learned Member said words to the effect that the Respondent was a company which was developing townhouses and that Mr Shaw was a licensed builder.[25] However, that decision has not been appealed. Alternatively, it refers to paragraph 5 of the Tribunal’s reasons for decision wherein the Tribunal recited that Mr Shaw is a director and is also a builder. I am unable to discern an error by the Tribunal.
[25] Transcript 15/9/11 p 25.
I consider that this ground of appeal has no merit.
Ground 2: The member erred in his construction of the contract, in that he determined that the contract was a costs plus contract
This ground of appeal is related to the previous ground. For the reasons already set out, this ground of appeal has no merit.
Ground 3: The member erred in finding that there was no date for commencements (sic) for the contract
The contract in Item 9 nominates that date for commencement of the contract is, ‘[t]o be determined under Clause 8’.
The Tribunal determined that this required a reference back to the construction period nominated in Clause 8, which it says was 352 days.[26] However, it went on to find as a fact that the commencement date was 15 October 2007.[27]
[26] Saikovski v Bradlyn NomineesPty Ltd [2010] QCAT 517, [20].
[27] Saikovski v Bradlyn NomineesPty Ltd [2010] QCAT 517, [20]-[23].
Bradlyn Nominees makes some submissions about the period of time it took to complete the works,[28] but none of these appear to go to the commencement date.
[28] Appellant’s submissions on appeal [60]-[63].
The finding was open on the evidence before the Tribunal. I consider that this ground of appeal has no merit.
Ground 4: The member erred in finding that the prior approval of the plans was irrelevant to the commencement date
The Tribunal’s findings about the commencement date are detailed in the learned Member’s reasons at [20]-[23]. The Tribunal accepted that Mr Saikovski could not commence the works until the plans were approved. It was further found that the fact the plans were initially drawn in 2004 and may have been previously approved by Council was irrelevant to the start of the contract.[29]
[29] Saikovski v Bradlyn NomineesPty Ltd [2010] QCAT 517, [22].
On my reading of them, Bradlyn Nominees submissions do not advance any basis on which they contend that the Tribunal erred, other than, perhaps, to challenge the findings about credibility which, for the reasons set out earlier, I would not disturb.
As no error has been articulated or identified, I consider that this ground of appeal has no merit.
Ground 5: The member erred in his construction of the contract in that he determined that the commencement date of the contract was 15 October 2007
Again, Bradlyn Nominees do not make specific submissions that advance an argument about how the Tribunal fell into error. If the ground is based on the challenge to the findings about credibility then, again, I would not disturb the findings for the reasons already set out.
I am unable to discern any error on the Tribunal’s part. This ground of appeal has no merit.
Ground 6: The member erred in finding that no explanation was given as to why the payments to the Applicant had stopped
The learned Member considered the issue of the payments stopping at [26] and [27] of his Reasons. He accepted Mr Saikovski’s evidence that the payments stopped without explanation.[30] Ms Shaw’s evidence was that she called Mr Saikovski ‘when the money ran out in February 2009’ but does not say why the payments stopped.[31]
[30] Witness Statement of Leo Alexander Saikovski dated 31 March 2010, [28]-[29].
[31] Affidavit of Alexandra Margaret Shaw sworn 31 May 2010.
The Reasons carefully and fully explained that the Tribunal accepted, and why it accepted, Mr Saikovski’s evidence over Ms Shaw’s where there was a discrepancy.[32]
[32] Saikovski v Bradlyn NomineesPty Ltd [2010] QCAT 517, [4]-[17].
The finding about this issue is consistent with the evidence and the Tribunal’s findings about credit. No error is identified and the ground of appeal has no merit.
Ground 7: The member erred in finding that the Respondent did not challenge the Applicant’s claim
Bradlyn Nominees does not address this ground of appeal in its submissions or identify any particular basis for this asserted ground of appeal.
At [29], the learned Tribunal Member observed that Bradlyn Nominees did not substantially challenge Mr Saikovski’s claim for the amount claimed by him, other than to seek to offset payment of the amount against its counter-claim.
I have read the witness statements relied upon by Bradlyn Nominees at the hearing. I am unable to discern any error. The Tribunal’s finding is supported by the material.
This ground of appeal has no merit.
Ground 8: The member erred in his construction of the contract, in that he found that the contract period should commence from 15 October
This ground of appeal seems to be substantially the same as ground 5 and the issue has already been sufficiently addressed.
It has no merit.
Ground 9: The member erred in finding that the Respondent was the cause of the delay the (sic) contract until February 2009
This finding is made at [35] of the Tribunal’s reasons for decision. It was made on what the Tribunal referred to as undisputed evidence that two sets of stairs that were provided by Bradlyn Nominees, which were defective and had to be re-manufactured and sent from China, could not be installed until February 2009.
The submissions of Bradlyn Nominees appear to argue this ground of appeal in identical terms to the submissions relied upon by Bradlyn Nominees at the hearing regarding delay. No proper attempt has been made to identify how or why the Tribunal erred, other than to say the evidence does not support the Tribunal’s decision.
The Tribunal deals with the issue of delay generally in the learned Member’s reasons.[33] The Tribunal concluded that delays were attributable to Bradlyn Nominees. I am unable to discern any apparent error, and Bradlyn Nominees has not made submissions about where or how the Member erred in his reasoning.
[33] At [33]-[40].
This ground of appeal has no merit.
Ground 10: The member erred in finding that 96.67% of the work was complete at 20 February
This finding is made at paragraph 37 of the Tribunal’s reasons for decision. It was made on the basis of a Catalyst Property Services report dated 23 February 2009. I have read the report, which is attached to Ms Shaw’s affidavit sworn 31 May 2010. The Tribunal’s finding is consistent with it.
I can discern no error. The ground of appeal has no merit.
11: The member erred in finding that the respondent was the cause of the delay in relation to finishing the projectGround
Once again, the submissions of Bradlyn Nominees appear to argue this ground of appeal in identical terms to the submissions relied upon at the hearing regarding delay. No proper attempt has been made to identify how and where the Tribunal erred, other than to say the evidence does not support the Tribunal’s decision.
As discussed above, the Tribunal preferred the evidence of Mr Saikovski over the evidence of Ms Shaw. Further, the Tribunal deals with the issue of delay at [33]-[40] of the learned Member’s reasons. The Tribunal concluded that delays were attributable to Bradlyn Nominees. I am unable to discern any obvious error and Bradlyn Nominees has not made submissions about where or how the Member erred in his reasoning.
This ground of appeal has no merit.
Ground 12: The member erred in his construction of the termination and the respondent’s right to lawfully terminate
The submissions of Bradlyn Nominees about the issue of termination appear to be in identical terms as the submissions made to the Tribunal at the conclusion of the hearing. Again, no attempt has been made to identify how or why it says that the Tribunal erred when it made its decision.
This issue is dealt with in the Tribunal’s reasons at [41]-[45].
I can discern no error in the Tribunal’s reasoning.
This ground of appeal has no merit.
Ground 13: The member erred in finding that the respondent could not rely upon the termination
This issue has been adequately addressed under Ground 11 above. The ground has no merit.
Ground 14: The member erred in finding that the respondent did not complete the contract in accordance with the evidence of Ms Shaw
Once again, there are no submissions regarding any particular error in the Tribunal’s reasoning.
As discussed above, the Tribunal did not accept that Ms Shaw’s evidence was reliable and preferred Mr Saikovski’s evidence whenever there was a discrepancy.
There is no merit in this ground of appeal.
Ground 15: The member erred in finding that the costs overrun (sic) were not prove (sic) and ignored the evidence of the applicant’s accountant
Bradlyn Nominees does not specify construction costs overruns or claimed holding cost overruns. An error in the Tribunal’s reasoning is not advanced.
The claims for both are dealt with at [46] and [47] of the Tribunal’s reasons for decision, and are consistent with the learned Member’s findings.
There is no merit in this ground of appeal.
Ground 16: The member erred in finding that the ‘major cause’ of the delay was the respondent
This ground of appeal is similar to ground 11, and has been sufficiently addressed. It has no merit.
Ground 17: The member erred in his construction of the contract in that he found that no damages could be claimable by the respondent against the applicant
This ground of appeal is extremely vague. I consider that it has been adequately addressed in response to Ground 15, above.
In my view, the ground of appeal has no merit.
Ground 18: The member erred in making findings in favour of the applicant when the applicant had not produced documents relevant to the proceedings that were in his power or possession and relevant to the proceedings in that he fail (sic) to make any adverse inference
No submissions are made in support of this ground of appeal. No error made by the Tribunal at hearing is asserted. None is apparent.
I consider the ground has no merit.
Conclusions
It will be apparent that Bradlyn Nominees has not advanced any ground warranting a grant of leave to appeal. It is also apparent that, even if leave were to be granted, an appeal would have no prospect of success. The application should be dismissed.
89
7
0