Clark v Bridon Spraying & Nursery

CITATION: Clark v Bridon Spraying & Nursery
 [2013] QCATA 293

PARTIES:	Mr Anthony Raymond Clark (Applicant)
V
Bridon Spraying & Nursery (Respondent)

APPLICATION NUMBER: APL262 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe OAM, Senior Member

DELIVERED ON: 29 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where termite damage – where termite inspection did not reveal full extent of termite damage – whether termite controller breached duty of care – whether public advantage in granting leave to appeal – whether substantial injustice – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Bucknell v Robins [2008] QCA 214;
Hill-Douglas v Area Square Pty Ltd[2010] QCATA 125

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Clark owns a house at Mt Tamborine, which is tenanted. In November 2011, the tenants found evidence of termite activity. Mr Harder, from Bridon Spraying & Nursery did a pest inspection. He found some termite activity and treated it. He called at the house again in December 2011, found further evidence of minor termite activity and treated that too.

2. In February 2012, the tenants found more termite activity. This time, Mr Clark engaged Gold Coast Pest Inspections. That company found extensive termite infestation and damage. Mr Clark filed a claim against Bridon for the cost of treating the infestation and the cost of repairing the termite damage. An Adjudicator of the tribunal dismissed Mr Clark’s claim because he was not satisfied that Mr Harder breached his duty of care to Mr Clark.

3. Mr Clark wants to appeal that decision. He says that the learned Adjudicator erred by failing to consider relevant evidence and considering irrelevant evidence. He also says the learned Adjudicator showed bias.

4. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice caused by some error?[3]  Is there a question of general…