Gerhardt v Ad Hanlon and PJ Hanlon

[2011] QCATA 356

CITATION: Gerhardt v AD Hanlon and PJ Hanlon [2011] QCATA 356

PARTIES:	Mrs Julie Gerhardt
v
AD Hanlon and PJ Hanlon t/as Electrical Contracting Construction and Maintenance Services

APPLICATION NUMBER:            APL328-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   16 November 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       1.        Leave to appeal allowed.

2.        Appeal dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where Mr Hanlon did some electrical work for Mr Trevor Gerhardt but was not paid so took action against Mr Gerhardt, obtaining judgment in the Small Claims Tribunal – where the Magistrate decided on basis of equity and fairness – whether husband contracted as agent –whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, ss 3, 4, 13(1), 137, 138

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. In April 2006, Mr Hanlon did some electrical work for Mr Trevor Gerhardt.  Mr Hanlon was not paid so he took action against Mr Gerhardt, obtaining judgment in the Small Claims Tribunal.  Mr Gerhardt had nothing so Mr Hanlon was unable to enforce the judgment.

1. Searches revealed that the work was done on a property owned by Mrs Gerhardt, so Mr Hanlon took action against her.  The learned Magistrate, sitting as a QCAT Member in the Tribunal’s Minor Civil Disputes (MCD) jurisdiction, decided in favour of Mr Hanlon and ordered that Mrs Gerhardt pay him $1,407.61.

1. Mrs Gerhardt has appealed the learned Magistrate’s decision on these grounds:

a)    That the decision was not fair and equitable;

b)    That there was no privity of contract between her and Mr Hanlon; and,

c)    That Mrs Gerhardt had paid her husband for the work, so could not be expected to pay twice.

1. Because Mrs Gerhardt seeks to appeal a decision of the Tribunal in the MCD jurisdiction, she must first obtain leave to appeal.  Leave will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. The learned Magistrate, in his Reasons for decision, stated that he did not decide the matter in terms of the law of contract but in terms of equity and fairness because, he said, he could see no reason why a tradesman should not be paid for his work.

1. In proceedings for MCDs, the Tribunal must make orders that it considers ‘fair and equitable’.[1] That requirement has to be read, however, within the context of the QCAT Act as a whole. The objects of the Act include requirements to promote the quality and consistency of Tribunal decisions,[2] and enhance the quality and consistency of decisions made by decision-makers.[3]  It is a function of the tribunal to ensure like cases are treated alike.[4]  Section 28(2) requires the Tribunal to act fairly, and according to the substantial merits of the case. 

   [1] QCAT Act, s 13(1).

   [2] QCAT Act, s 3(c).

   [3] QCAT Act, s 3(d).

   [4] QCAT Act, s 4(d).

1. The inescapable conclusion from reading the Act as a whole is that the learned Magistrate, in reaching his decision, had to apply the relevant law.  The Tribunal has limited equitable jurisdiction, but s 13 should not be interpreted as conferring any equitable jurisdiction on the MCD jurisdiction which would empower the learned Magistrate to adjust parties’ legal rights in accordance with some undefined principle of fairness.

1. To the extent that the learned Magistrate’s decision was apparently based on his general view about a ‘fair and equitable’ outcome, leave to appeal should be granted.

1. At the hearing, Mr Hanlon argued that Mr Gerhardt had been, in law, Mrs Gerhardt’s agent in the original transaction.  He pointed to: the fact that the electricity account was in Mrs Gerhardt’s name; that he had to put Mrs Gerhardt’s reference number on paperwork submitted to Energex; and, that the work was required to enable a subdivision of Mrs Gerhardt’s land.

1. Mrs Gerhardt argued that there was no privity of contract because: she had leased the property to Mr Gerhardt; they always kept their business separate; she contracted Mr Gerhardt to undertake building work; and Mr Gerhardt had billed her, and she had paid, for the electrical work done by Mr Hanlon.

1. Mrs Gerhardt did not produce copies of any relevant documents at the hearing.  The learned Magistrate did not see a copy of the lease and he did not see any invoice from Mr Gerhardt to Mrs Gerhardt.

1. Mrs Gerhardt has provided a copy of an invoice from Mr Gerhardt to the Appeal Tribunal.  The invoice is dated 15 June 2006.  It shows that Mr Hanlon’s costs are part of the total charge to Mrs Gerhardt.

1. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[5]  Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:

a)    The evidence could not have been obtained with reasonable diligence for use at the trial; 

b)    The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and   

c)    That the evidence is credible though it need not be incontrovertible.[6]

[5] QCAT Act, ss 137 and 138.

[6]            Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. Mrs Gerhardt does not say why that invoice was not produced before the learned Magistrate.  There is, in the absence of a satisfactory explanation, no compelling reason why the Appeal Tribunal should accept it into evidence now.

1. There was sufficient evidence before the learned Magistrate for him to find that Mr Gerhardt acted as agent for Mrs Gerhardt in engaging Mr Hanlon.  The work was done to enable the subdivision of Mrs Gerhardt’s property.  It was not obviously connected to any building work carried out by Mr Gerhardt or Mr Gerhardt’s business, as Mrs Gerhardt suggested.  Mr Hanlon needed Mrs Gerhardt’s connection details for Energex, and Mr Gerhardt provided them.  There was nothing to indicate that Mr and Mrs Gerhardt kept their affairs separate in the way now suggested by her.  Indeed, Mrs Gerhardt’s submission to the Appeal Tribunal that ‘Under the terms of the lease I pay for all building work and Trevor Gerhardt pays is responsible for maintenance work’ supports the view that Mr Hanlon’s work – being a connection – was ‘building work’ and not ‘maintenance work’ and, therefore, it was done to Mrs Gerhardt’s account.

1. The fact that Mrs Gerhardt had already paid her husband for the work does not alter her liability to pay Mr Hanlon.

1. Although leave to appeal should be granted, I am satisfied that there was sufficient evidence before the learned Magistrate to enable him to conclude that Mr Gerhardt was acting as Mrs Gerhardt’s agent when contracting with Mr Hanlon and, therefore, that Mrs Gerhardt is obliged to pay Mr Hanlon $1,407.61.

1. Mr Hanlon has advised the Appeal Tribunal that he has now received payment of $921.70.  He is entitled to recover the balance of $485.91.