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

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.

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.

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.

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?

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.

In proceedings for MCDs, the Tribunal must make orders that it considers ‘fair and equitable’.[1] That requirement has…

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.

Keep reading for free

Create a free CaseChat account to read Gerhardt v Ad Hanlon and PJ Hanlon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] QCATA 356
Decision Date: 16 November 2011

CaseChat Overview and Summary

Gerhardt v Ad Hanlon and PJ Hanlon was a matter heard in the Supreme Court of Queensland. The dispute involved Mr Gerhardt, who employed Mr Hanlon to undertake some electrical work at his residence. Mr Hanlon completed the work but was not paid for it. He subsequently brought an action against Mr Gerhardt in the Small Claims Tribunal, where he was awarded judgment. Mr Gerhardt then sought to appeal the judgment, arguing that his former wife, PJ Hanlon, who was not a party to the proceedings in the Small Claims Tribunal, had contracted with Mr Hanlon as an agent for him. The court had to determine whether there were grounds for leave to appeal.

The primary legal issues revolved around the identification of the contracting party and the applicability of the doctrine of agency. Mr Gerhardt contended that his former wife, PJ Hanlon, had entered into the contract on his behalf, thus binding him to the agreement. He argued that there were no grounds for the Small Claims Tribunal to have awarded judgment to Mr Hanlon. The court was required to assess whether there were valid grounds for leave to appeal the judgment of the Small Claims Tribunal.

The court examined the evidence and concluded that the Small Claims Tribunal had correctly identified the contracting party and assessed the matter on the basis of equity and fairness. The court found that there was no evidence to support Mr Gerhardt's contention that his former wife had acted as an agent for him. The court further held that the appeal did not meet the criteria for leave to appeal, as it was unlikely to succeed. Consequently, the court dismissed the application for leave to appeal.

The court's final orders included the dismissal of the application for leave to appeal and the affirmation of the judgment of the Small Claims Tribunal. This outcome confirmed that Mr Gerhardt remained liable for the payment of the debt owed to Mr Hanlon for the electrical work completed.

Orders