Evans v Rendermeister Pty Ltd

[2010] QCATA 37

CITATION: Evans v Rendermeister Pty Ltd [2010] QCATA 37

PARTIES:	James Evans (Applicant)
v
Rendermeister Pty Ltd (ACN 133115045) (Respondent)

APPLICATION NUMBER:            APL101-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   3 August 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused

CATCHWORDS : 

MINOR CIVIL JURISDICTION – LEAVE TO APPEAL – FINDINGS ON CREDIT – where applicant hired respondent to render his premises – where applicant did not pay full quoted fee arguing quality of render did not meet representations about final finish and took longer to complete than expected – whether error in findings of fact  

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

REASONS FOR DECISION

1. Rendermeister Pty Ltd provided a quote to Mr Evans to apply a render product to his premises at Toowoomba. The quoted price for the work was $9,900, but because Mr Evans was dissatisfied with it, he paid only $6,600.

1. Rendermeister began proceedings in QCAT’s minor civil disputes jurisdiction for the balance of $3,300. Mr Evans filed a response in those proceedings claiming, in short, that the work did not meet the standard promised by Rendermeister, and took too long.

1. The matter was heard by an acting magistrate, in the role of a QCAT adjudicator, at Toowoomba on 23 April 2010. The learned acting magistrate gave reasons for his decision which was that Rendermeister’s claim should succeed.

1. Mr Evans has sought leave to appeal.  Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). The parties were directed to submit, if they wished, written submissions for addressing the leave to appeal application (and the appeal proper, if leave was granted), following which the application would be determined on the papers. Both parties have filed and exchange submissions.

1. Mr Evans’ primary contention is that the learned acting magistrate’s decision does not properly address the true issue he wished to raise in the case, which concerned the quality of the finish of the render. He says that Rendermeister represented to him that the eventual finish of the render would show one consistent colour that would require no further painting, and that is why he accepted its quote. He denies that he was ever informed that there might be any inconsistency in the colour in the finished render.  His second contention is that the job took too long.

1. Against that, Mr Kammerlocher of Rendermeister asserts that Mr Evans told him he was looking for the most economical way to have the premises rendered, and that he advised Mr Evans that pre-tinted render was the most effective means; but, also, that Mr Evans was told he could not expect a “painted like” finish and because colour is mixed throughout the render, and the render is finished using water and sponges, the eventual effect would have a patchy look.

1. In his reasons the learned acting magistrate made it clear that he accepted Mr Kammerlocher’s evidence that the work actually performed was the cheapest method to achieve an acceptable finish, and that anything better would involve painting. He referred to evidence showing some “level of unevenness” in the surface and addressed the question whether or not that was “good tradesman like work or not”. The reasons go on to observe:

“I also accept (Mr Kammerlocher’s) evidence that if a perfect finish is required, and that could only be achieved by painting afterwards, that would have been an additional cost and an additional cost of a significant amount over and above the render.”

1. Implicit in these remarks is an acceptance, by the learned acting magistrate, that Mr Evans was sufficiently and appropriately warned that the finished work would not be of the same standard as a painted finish.  Although the finding might have been expressed more lucidly, it is sufficient for it to be seen that the decision maker did consider the issue about which Mr Evans now complains, and determined the issue against him; and, that the finding is one based on credit – i.e., a preference for Mr Kammerlocher’s evidence over that of Mr Evans about representations which preceded the quote, and came to form terms of the contract between them.

1. Although there is no finding about the time the work took, there is also nothing to indicate that Mr Evans attempted to adduce any evidence suggesting he had suffered loss as a consequence of the delay. Again, if the matter did arise in the hearing, it must have involved a finding of fact because, while Mr Evans now says he was told the work would only take three days (but it actually took six weeks), Mr Kammerlocher says he was never told that the work was urgent – and, points to the fact that his quote does not make any reference to a time for completion.

1. The learned acting magistrate’s decision involves, then, findings of fact about the matters of which Mr Evans now complains. Generally speaking, an appeal tribunal will not disturb findings of fact made by the primary decision-maker unless it is persuaded that the findings were made in an absence of evidence – which would amount to an error of law.[1] There is nothing indicating that the learned acting magistrate did not understand and consider the submissions and evidence advanced by each of the parties about these factual conflicts and, it is clear, he preferred that of Mr Kammerlocher. Nothing in the submissions filed by Mr Evans suggests those findings were made without sufficient evidence.

   [1]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 355.

1. The application for leave to appeal should be refused.