Cona v SM Painting Contractor Pty Ltd - [2023] QCATA 60

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Cona v SM Painting Contractor Pty Ltd [2023] QCATA 60

PARTIES: MICHEL CONA

(applicant)

v

SM PAINTING CONTRACTOR PTY LTD

(respondent)

APPLICATION NO:

APL033-22

ORIGINATING APPLICATION NO:

MCDO 60289 of 2021

MATTER TYPE

Appeals

DELIVERED ON:

29 May 2023

HEARING DATE:

12 May 2023

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDER:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer and trader dispute – contract to perform interior repainting in residential premises - where consumer dissatisfied with colour matching – where tribunal satisfied that work done substantially complied with terms of contract – where payment for trader’s work unpaid – where consumer ordered to make payment in full – where consumer applies for leave to appeal – no appellable error shown

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) Form 7

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

Drew v Bundaberg Regional Council [2011] QCA 359

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330

Fox v Percy (2003) 214 CLR 118

French v Bremner [2020] NSWCA 299

JM v QFG and KG [2000] 1 Qd R 373

Lawless v The Queen (1979) 142 CLR 659

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

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

R v Sharkey [2013] QCA 259

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Steike v Pederick & Anor [2019] SASCFC 148

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

W (an infant) In Re [1971] AC 682

APPEARANCES & REPRESENTATION

The applicant appeared in person
For the respondent: Mr S Murphy, director

INTRODUCTION

When a tradesman is engaged to repaint residential premises endowed with ‘feature walls’, there is always a risk that the client will complain that the colour chosen does not satisfactorily reproduce the pre-existing one. That is the problem here.
In January 2021 SM Painting Contractor Pty Ltd (‘Murphy’)[1] quoted the applicant for leave (‘Cona’) $4,796 to ‘sand down, fill and gap imperfections on the walls, doors and trims of a home unit ‘with feature walls’ at Parkland Boulevarde, Brisbane central (‘the Unit’).
[1]In practice SMP is operated by painter Shane Murphy.
Cona accepted that quotation, stipulating (per agent) that ‘the feature walls [be] restored to their original condition with the same paint colour and texture.’[2] Murphy does not question that requirement, but contends that ‘the Work Order did not specify ‘the paint colour name.[3] ‘In accordance with our (and industry) practice , where we are requested to restore walls to their original colour and texture, if no colour name/formula is provided … we take a clean and accurate sample off the wall and have that colour matched.’[4] So Murphy relied on a sample of the existing paint,…

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.

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Details

Case: [2023] QCATA 60
Decision Date: 29 May 2023

CaseChat Overview and Summary

Cona brought an application for leave to appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) in a dispute with SM Painting Contractor Pty Ltd (SMP). The dispute arose from a contract for interior repainting in residential premises. Cona was dissatisfied with the colour matching of the repainted walls, while SMP argued that it substantially complied with the contract terms and that Cona had not paid for the work. QCAT ordered Cona to pay the full amount for SMP's work, and Cona sought leave to appeal the decision.

The central legal issue was whether the application for leave to appeal disclosed any grounds for appeal, specifically if there was any appellable error in QCAT's decision. Cona argued that fresh evidence, which had not been presented during the tribunal hearing, could have led to a different outcome. Cona claimed that they were not given an opportunity to present this evidence due to the hearing being conducted over the phone. Additionally, Cona argued that the tribunal erred in its interpretation of the contract regarding the specification of the paint colour.

The court dismissed the application for leave to appeal, finding no appellable error in QCAT's decision. The court noted that the Form 7 instructions clearly state that a response is not proof of the facts relied upon and that such facts would be proved later. The court also held that Cona's complaint about not receiving communications from QCAT regarding the filing of additional evidence did not constitute fresh evidence because the Form 7 instructions explicitly mentioned the need to provide evidence later. The court further found that Cona had not provided any credible evidence that would have led to a different outcome if presented. Thus, the application for leave to appeal was dismissed, and the original decision of QCAT stood.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Cona accepted that quotation, stipulating (per agent) that ‘the feature walls [be] restored to their original condition with the same paint colour and texture.’[2] Murphy does not question that requirement, but contends that ‘the Work Order did not specify ‘the paint colour name.[3] ‘In accordance with our (and industry) practice , where we are requested to restore walls to their original colour and texture, if no colour name/formula is provided … we take a clean and accurate sample off the wall and have that colour matched.’[4] So Murphy relied on a sample of the existing paint, as analysed by a Dulux dealer.[2]Parklands Apartments (as agent for Cona) 22 January 2021.[3]Submissions of SMP filed 16 May 2022 paragraph 1(a)(i).[4]Email Murphy to Cona 29 March 2021.Fresh evidence? First, there is a question of fresh evidence – an exception to the rule that additional evidence is not admitted on appeal. By no means is every afterthought admissible as fresh evidence. Evidence is ‘fresh’ if it is evidence which either did not exist at the time of the trial, or which could not with reasonable diligence then be discovered.[5] Further, it must appear that if it were admitted it would be credible, and would probably have produced a different result.[6] These rules reflect the public interest in finality of litigation.[7][5]R v Sharkey [2013] QCA 259 at [8]; Lawless v The Queen (1979) 142 CLR 659 at 674-676.[6]French v Bremner [2020] NSWCA 299 at [7].[7]Steike v Pederick & Anor [2019] SASCFC 148 at [7]. Cona complains that following his filing of a Response[8]:I did not receive any communication from or through QCAT as to the filing of any statements, affidavits or supporting documents between the time when I filed the Form 7[9] and the time when I received notice that there would be a hearing of this matter.[10]I did not receive any communication through or from QCAT during that time requiring or advising me to file any statements, affidavits or supporting evidence.[11]I understood that the hearing would give me the opportunity to present my evidence and a chronology of events and colour photographs and colour swatches.[12] I received notice that the hearing would be by telephone and I was not able or requested to present any evidence in those circumstances other than what I was able to say on the telephone.[13]In all of the circumstances, I have been denied the opportunity to fully present the case that I would have when it was heard.[14][8]The Response was filed on 16 June 2021.[9]I.e. the Response.[10]Cona’s submissions filed on 26 April 2022 paragraph 1(c).[11]Ibid paragraph 1(d).[12]Ibid paragraph 1(e).[13]Ibid paragraph 1(f).[14]Ibid paragraph 1(g). As Cona recognises,[15] the Form 7 instructions explicitly state: ‘A response … is not proof of those facts [on which you rely]. You will do that later’. This is simply a recognition of the legal axiom: ‘Pleadings are not evidence’, or in ordinary parlance: ‘Assertions are not proof’. A party who is unsure of the form’s meaning has only to ask registry staff to interpret it. [15]Ibid paragraph 1(b).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION	Cona v SM Painting Contractor Pty Ltd [2023] QCATA 60
PARTIES:	MICHEL CONA
(applicant)
v
SM PAINTING CONTRACTOR PTY LTD
(respondent)
APPLICATION NO:	APL033-22
ORIGINATING APPLICATION NO:	MCDO 60289 of 2021
MATTER TYPE	Appeals
DELIVERED ON:	29 May 2023
HEARING DATE:	12 May 2023
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDER:	The application for leave to appeal is dismissed.
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer and trader dispute – contract to perform interior repainting in residential premises - where consumer dissatisfied with colour matching – where tribunal satisfied that work done substantially complied with terms of contract – where payment for trader’s work unpaid – where consumer ordered to make payment in full – where consumer applies for leave to appeal – no appellable error shown Queensland Civil and Administrative Tribunal Rules 2009 (Qld) Form 7 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 French v Bremner [2020] NSWCA 299 JM v QFG and KG [2000] 1 Qd R 373 Lawless v The Queen (1979) 142 CLR 659 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 R v Sharkey [2013] QCA 259 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Steike v Pederick & Anor [2019] SASCFC 148 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 W (an infant) In Re [1971] AC 682
APPEARANCES & REPRESENTATION	The applicant appeared in person For the respondent: Mr S Murphy, director