Cavalliotis v Rizio & Anor - [2013] QCATA 201

CITATION:

Cavalliotis v Rizio & Anor [2013] QCATA 201

PARTIES:	Anthony Cavalliotis (Applicant/Appellant)
V
Jason Rizio Sakkara Dudley-Bateman (Respondents)

APPLICATION NUMBER:

APL086-13

MATTER TYPE:

Appeals

HEARING DATE:

8 July 2013

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

9 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – provision of domestic building services – whether contract in writing required – failure to agree hourly rate – whether decision “fair and equitable” – whether leave to appeal should granted – leave refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 13, 32, 102, 142
DomesticBuilding Contracts Act 2000 (Qld), ss 9(1), 26, Schedule 2 Dictionary
Small Claims Tribunals Act 1973 (repealed) s 10

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 84

Uniform Civil Procedure (Fees) Regulation 2009 (Qld), Schedule 2, Part 2

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
R v Small Claims Tribunal; Ex parte Barwiner Nominees Pty Ltd [1975] VR 831
Goodwin v O’Driscoll & Anor [2006] QSC 287
Remely v O’Shea & Anor [2008] QCA 78
Burton v Referee, Small Claims Tribunal, Gympie [1997] QSC 226
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This is a dispute about a plumber’s bill for $203.50. Claims for a filing fee of $21.50 and a process server’s fee of $77 increase the amount to $302.
The appellant Anthony Cavalliotis (“Anthony”) delivered the bill for investigating a leak in an underground water pipe at 1 Selwyn Street Booval, Ipswich – premises owned by the second respondent Sakkara Dudley-Bateman (“Sakkara”).
These proceedings were erroneously commenced against the first respondent; joinder of Sakkara as a party was ordered on 3 January 2013. It is common ground that she is liable to satisfy any award that is made.
On 12 February 2013 the Tribunal awarded Anthony the sum of $151, including costs, payable within 14 days of Sakkara’s receipt of an invoice for that amount.
Anthony now seeks leave to appeal against that order, and requests a rehearing.
On 22 August 2012 Sakkara telephoned Anthony and asked him to attend to the faulty pipe. He told her he could not quote a price until he visited the site. There was a calling-out fee of $45, which is not in dispute. He did not mention his hourly rate. She asked him if he could investigate the problem immediately, and he did so. Anthony says that after 90 minutes of “hard digging”, hampered by tree roots, he rang Sakkara and told her that, without…

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.

Continue reading Cavalliotis v Rizio & Anor

Details

AGLC: Cavalliotis v Rizio & Anor [2013] QCATA 201
Case: [2013] QCATA 201
Decision Date: 9 July 2013

CaseChat Overview and Summary

In Cavalliotis v Rizio & Anor, the appellant, Cavalliotis, sought leave to appeal a decision of the Supreme Court of Queensland concerning a dispute over minor civil debt related to domestic building services. The respondents, Rizio and another party, argued that the appellant's claim was without merit and should be dismissed. The primary dispute centred on whether a written contract was necessary for the provision of domestic building services and whether the decision of the primary judge was fair and equitable. The court was also required to determine whether leave to appeal should be granted.

The legal issues at hand were whether the contract for the provision of domestic building services needed to be in writing, and whether the primary judge's decision was fair and equitable. Additionally, the court needed to assess if the appellant's appeal was meritorious enough to warrant leave to appeal. The court considered the nature of the contract, the reasonableness of the hourly rate, and the fairness of the primary judge's decision in light of the evidence presented.

The court found that the contract did not necessarily need to be in writing, but the failure to agree on an hourly rate was problematic. The primary judge's decision was considered fair and equitable given the evidence and the circumstances of the case. The court held that the appeal did not present a sufficiently arguable case to merit leave to appeal, as the primary judge's findings were supported by the evidence. Consequently, the appeal was dismissed, and leave to appeal was refused.

The final order of the court was that leave to appeal was refused. The appeal was dismissed, and the decision of the primary judge was upheld.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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