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Small Claims Tribunals Act 1973 (repealed) s 10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

1. 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.

2. 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”).

3. 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.

4. 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.

5. Anthony now seeks leave to appeal against that order, and requests a rehearing.

6. 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 a trenching machine, searching for the leak would take “forever”. The best solution, he suggested, would be to bypass the faulty steel pipe with a polyester product.

7. Sakkara then told Anthony to contact Jason (the first respondent) which he did. Subsequently Sakkara, Jason and a third person took Anthony’s advice and ran a polyester pipe from the water meter to the house.

8. On 4 September 2012 Anthony delivered his bill to Sakkara, who declined to pay it, as she considered his charge to be excessive. In addition to the call out fee, Anthony charged her $90 per hour.

9. In the audio-recording of the hearing, Anthony outlined his case in a reasonable manner, but became argumentative after the Adjudicator asked why he didn’t charge $10,000 for his services, and added that, without a contract in writing, he was not entitled to any payment.

10. The reference to $10,000 was no more than a light-hearted observation that Sakkara was not told of, and did not accept his hourly rate at any material time. 

11. However, the Adjudicator’s statements: “It’s a requirement of the Domestic Building Contracts Act that you get variations [sic] in writing”, and “the Act says that you will not be paid for any work you do unless you have it in writing” are, with respect, erroneous. The Act does not impose documentation on contracts worth less than $3,300.[1] But it is unnecessary to dwell on this point, because Anthony did receive an award for his work, albeit less than he claimed. This error of law, occurring in a hard-pressed tribunal without professional assistance, is, therefore, academic.

    [1]        Domestic Building Contracts Act 2000 ss 9(1), 26, Schedule 2 Dictionary (definitions of

    “regulated amount”, “regulated contract”).

12. The respondents did not accept that Anthony’s work took one and a half  hours, but, as the Adjudicator observed, they were not present, and the only evidence on that issue is Anthony’s. It is not inherently improbable; Jason says he and two assistants took five hours to install the polythene bypass, and added: “as Anthony said there was [sic] a few big trees there”.

13. On a strict application of common law, the Adjudicator might have relied on the quantum meruit doctrine, and awarded Anthony an hourly rate based on a current, fair market average in the plumbing trade.[2] But the Adjudicator was given no such assistance. The rationale for the decision appears to be:

    [I]n this Tribunal I have  to make orders which are simply fair and just ... The first thing that needs to happen here is that this matter needs to be ended ... There’s not much science in this, but [Sakkara] should not be taking advantage of [Anthony’s] poor paper work. I think you should pay half the claim, only because it’s 50-50 and we walk away.

    [2]        About $70 per hour, according to the website of the Master Plumbers’ Association of

    Queensland.

14. The first sentence just quoted refers to special legislation for deciding minor civil disputes:

    In a minor civil dispute the tribunal must make orders that it considers fair and equitable to the parties ... but may, if the tribunal considers it appropriate, make an order dismissing the application.[3]

    [3] QCAT Act s 13(1), emphasis in italics added; see also s 3(b).

15. In the interest of expedition and economy, this provision releases the Tribunal from mandatory adherence to the rules of common law and equity, and confers a “broad jurisdiction to make orders that it considers fair and equitable”,[4] including a discretion to dismiss a claim where, for example, it is trivial, vexatious or otherwise unmeritorious. It might well be different if expressions such as “fair and equitable” or “equity and good conscience” were absent from the QCAT Act. In that event it would be more difficult to find that “the general law, except as to procedure” was “ousted”,[5] but that is not the position here.

    [4]        The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8] per Wilson P; Breezeway

    Developments Pty Ltd v ADG Hydraulics Pty Ltd  [2010] QCATA 69 at [9].

    [5]        R v Small Claims Tribunal; Ex parte Barwiner Nominees Pty Ltd [1975] VR 831.

16. None of this is to deny that, when larger amounts are in issue, it may be fair and equitable to adhere to general legal and equitable principles.

17. In the context of minor civil claims the word “equitable” bears its dictionary meaning of “fair or just”, rather than the technical meaning of glosses on the common law, developed historically by the Court of Chancery. (Indeed, the conjunction of “equitable” - in the ordinary sense” - with “fair” may seem superfluous and repetitive, but lawyers and legal draftsmen have long been forgiven for using two or more words where one would do.) It may be noted that the same expression appeared in the former Small Claims Tribunal Act 1973:

    Should it appear to the referee to be impossible ... to attain a settlement ... then [his] function ... shall be to make such an order ... as is fair and equitable ... or, where the referee thinks the case requires it, an order dismissing the claim.[6]

    [6]        Small Claims Tribunal Act 1973 (repealed) s 10(2).

18. Decisions of the Small Claims Tribunal were immune from judicial intervention, except in cases of absence of jurisdiction, or denial of natural justice.[7] Presumably a decision would have been regarded as ultra vires if it were so plainly arbitrary or capricious as to bear no reasonable relationship to the facts and justice of the case. It is true that a decision in a minor civil claim may be appealed, but only by leave,[8] and it is reasonable to infer that an application for leave is such a case is to be considered in the light of section 13 of the QCAT Act.

    [7]        Goodwin v O’Driscoll & Anor [2006] QSC 287 at [6]; Remely v O’Shea & Anor [2008]

    QCA 78; Burton v Referee, Small Claims Tribunal, Gympie [1997] QSC 226.

    [8] QCAT Act s 142(3)(a)(i).

19. In his award of $151 – one half of the $302 claimed, including costs – the Adjudicator implicitly took into account the claims for filing and service fees. He was not bound to do so; those are matters of discretion.[9] If he had seen fit, he could have disallowed part or whole of the claim for service fees of $77[10], considering the relative triviality of the dispute.

    [9] QCAT Act s 102(1),(2); QCAT Rules r 84(1) (“may award”).

    [10]        Service fees, when allowed in a case of this kind, are governed by the Uniform Civil

    Procedure (Fees) Regulation 2009 schedule 2 part 2: QCAT Rules r 84(2). The fee for service within 12 km of the registry is $41.

20. In my view, there is nothing in the subject decision that could properly be described as ultra vires, contrary to natural justice, arbitrary or capricious. The Adjudicator was generally patient with parties pursuing a petty dispute with disproportionate zeal. There must be an end to lawsuits by parties $151 apart. There is no arguable ground of appeal, and no error of law resulting in substantial injustice to the appellant.[11] Leave must be refused.

    [11]        QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v

    Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18].

    ORDER

    Leave to appeal is refused.