David Wu v Homedeal Air Conditioning QLD Pty Ltd
[2013] QCATA 85
•12 March 2013
| CITATION: | Wu v Homedeal Air Conditioning QLD Pty Ltd [2013] QCATA 85 |
| PARTIES: | David Wu (Applicant/Appellant) |
| V | |
| Homedeal Air Conditioning QLD Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL401 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 12 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where different entity invoiced – where adjudicator not aware of different entity - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549, cited Chambers v Jobling (1986) 7 NSWLR 1, cited Croney v Nand[1998] QCA 367; [1999] 2 Qd R 342, cited Kostopoulos v G E Commercial Finance Australia Pty Ltd , cited |
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
Mr Wu engaged Homedeal Air Conditioning QLD Pty Ltd to supply and install ducted air conditioning in his home. Mr Wu did not like the position of the ducts. He obtained a quote from a painter to relocate the ducts. At the same time, he did not pay the final invoice due to Homedeal under the contract. Mr Wu filed a claim for the cost of moving the ducts. Homedeal filed a counterclaim for the unpaid invoice. The learned Adjudicator dismissed Mr Wu’s claim and ordered that he pay Homedeal $4,615.00
Mr Wu wants to appeal that decision. He says that Homedeal did not provide a copy of the invoice. Mr Wu has now filed a copy of the invoice. He says that the invoice is addressed to Sunshine Family Trust, which is a separate entity.
Because the original decision was one from the Minor Civil Disputes jurisdiction, Mr Wu must have leave to appeal. 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 importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Wu filed the application for compensation. The air conditioning was installed at Mr Wu’s home. Homedeal’s offer was addressed to Mr Wu. He told the learned Adjudicator that he accepted Homedeal’s offer.[8] He agreed that $6,115 was outstanding.[9] Mr Wu never referred to Sunshine Family Trust during the hearing. Mr Wu had the opportunity to tell the learned Adjudicator about Sunshine Family Trust but he did not. The learned Adjudicator was entitled to assume that Mr Wu was responsible for the debt. The learned Adjudicator was not in error. There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts.
[8] Transcript of Proceedings, 3.
[9] Ibid 10.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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