Hanslow v Raceglobe Pty Ltd
[2013] QCATA 15
•29 January 2013
| CITATION: | Hanslow v Raceglobe Pty Ltd [2013] QCATA 15 |
| PARTIES: | Philip Richard Hanslow (Applicant/Appellant) |
| v | |
| Raceglobe Pty Ltd t/a McFix-it (Respondent) |
| APPLICATION NUMBER: | APL155-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 29 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. Appeal allowed. 3. Raceglobe Pty Ltd t/a McFix-it shall file and serve any evidence of the outlays it incurred in relation to this work and submissions by 4:00 pm on 18 February 2013. 4. Mr Hanslow and Ms Chialton will file and serve any submissions in response by 4:00 pm on 4 March 2013. 5. The dispute will be determined on the papers and without an oral hearing not before 4 March 2013. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where claim for repairs to rental unit – whether Magistrate allowed respondent to call evidence – whether a failure to give a fair hearing – whether repairer required to be licensed – where repairer not licensed – whether repairer entitled to recover full amount of invoice Queensland Building Services Authority Act 1991, s 42 Dart Holdings Pty Ltd v Total Concept Group Pty Ltd and Ors [2012] QSC 158, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Mr Hanslow and Ms Chialton live in Sydney. They own a unit in North Queensland. Raceglobe Pty Ltd t/a McFix-it (‘McFix-it’) undertook some handyman work in the unit and rendered bills totalling $6,248. Mr Hanslow and Ms Chialton refused to pay the bill. They said that McFix-it was not authorised to do the work, did not provide a written contract and was not qualified to do the work. McFix-it brought a claim in the Minor Civil Disputes jurisdiction of the Tribunal claiming the amount of the unpaid invoice. A magistrate, sitting as a member of the Tribunal, ordered Mr Hanslow and Ms Chialton pay McFix-it $3,750.
Mr Hanslow and Ms Chialton have appealed the learned Magistrate’s decision. They say that they were denied the opportunity to produce evidence in response to McFix-it’s claims. They say that the learned Magistrate did not have regard to McFix-it’s breaches of legislation, specifically the Queensland Building Services Authority Act 1991 (‘BSA Act’). Mr Hanslow also says that he was denied a fair hearing because he was ‘degraded and ridiculed’ by the learned Magistrate based on where he lived.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal 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?
Was Mr Hanslow denied the opportunity to produce evidence?
The Minor Civil Disputes jurisdiction of the Tribunal is a busy one. Experienced members and magistrates often understand the parties’ submissions at a very early stage in the proceedings and try to limit the parties’ evidence to what is relevant. However, the presiding member or magistrate must always ensure that the parties have been given an opportunity to present their case.
I have listened to a transcript of the hearing. The learned Magistrate did invite Mr Hanslow to speak in response to the application but she cut him short when she perceived that he was going to talk about the quality of the work done.[1] However, it is apparent from his letter of 25 September 2011 that Mr Hanslow had other complaints about the claim. He questioned the cost of the work. He also questioned McFix-it’s ability to undertake the work. While I understand the learned Magistrate’s frustration that an apparently simple matter could not be settled, I consider that she did fall into error in not allowing Mr Hanslow an opportunity to speak to his response. He was not afforded procedural fairness and leave to appeal should be granted.
[1]Transcript of Proceedings, Raceglobe Pty Ltd t/a McFix-it v Hanslow (MCDO 385/11, 30 April 2012) 32:47.
Breaches of the legislation
Mr Hanslow did not articulate this aspect of his response well in the material before the learned Magistrate so it is not surprising that she was not alert to the point at the hearing.
Section 42(1) of the BSA Act states that a person must not carry out building work unless the person holds the appropriate contractor’s licence.
McFix-it’s work included plumbing and painting, both of which are trades for which a licence is required. There is no evidence that either McFix-it, or its principal Mr Rowan, held an appropriate licence. The invoices McFix-it rendered do not show a QBSA licence number.
The invoice McFix-it rendered was a lump sum for the whole of the work. It is not the case that some of the invoice can be saved because it is work that does not require a licence. The position was usefully summarised in Dart Holdings Pty Ltd v Total Concept Group Pty Ltd and Ors[2] by McMurdo J:
As McPherson JA said in Sutton, in such a case, s 42(1) “prohibits the very process of formation of a contract”. The consequence of this statutory prohibition is that a court will not enforce the contract, at least in favour of the party which contravened the prohibition.[3]
[2] [2012] QSC 158.
[3] Ibid [39].
Section 42(3) of the BSA Act operates so that a person who is not appropriately licensed cannot claim any allowance for the supply of his own labour, profit or the costs of supplying materials and labour if the costs were not reasonably incurred.
The learned Magistrate erred by including McFix-it’s labour in her calculation of the amount payable.
McFix-it is entitled to recover its reasonable outlays. The difficulty is that McFix-it did not provide receipts for any of the outlays it incurred on the job and Mr Hanslow disputed the outlays, save for the cost of the cistern. The appeal should be allowed and McFix-it should have an opportunity to file and serve any evidence of the outlays it incurred in relation to this work.
Was Mr Hanslow denied a fair hearing?
The learned Magistrate made two remarks about the fact that Mr Hanslow and Ms Chialton live in Sydney. Initially, she remarked that Mr Hanslow and Ms Chialton failed to turn up at the hearing because it was inconvenient because they lived in Sydney.[4] At that point, Mr Hanslow announced his appearance and took a seat at the bar table.
[4]Transcript of Proceedings, Raceglobe Pty Ltd t/a McFix-it v Hanslow (MCDO 385/11, 30 April 2012) 3:52.
The learned Magistrate’s second comment came when Mr Hanslow sought to tender recent photos of the work. She told Mr Hanslow that she would not have regard to photos taken two years after the work was completed because two wet seasons had passed and conditions in North Queensland were ‘not like living in Sydney’.[5]
[5] Ibid 13:52.
Because he was aggrieved by the procedure during the hearing generally, I can understand why Mr Hanslow took exception to these comments. However, each of the parties before the learned Magistrate came in for criticism; there is no ground for suggesting that Mr Hanslow was subject to any greater criticism than Mr Rowan of McFix-it or Mr Barton, the agent who engaged McFix-it. I do not consider that the learned Magistrate’s comments amounted to ridicule nor were the comments degrading.
Conclusion
Mr Hanslow was denied the opportunity to put evidence before the Tribunal and to make submissions. Leave to appeal should be granted.
The learned Magistrate did not consider the application of s 42(3) of the BSA Act. The appeal should be allowed.
Given that McFix-it’s right to recover any amount is limited to reasonable outlays, I see little value in remitting this dispute to the Tribunal for rehearing. Rather, I direct:
a) McFix-it shall file and serve any evidence of the outlays it incurred in relation to this work and submissions by 4:00 pm on 18 February 2013;
b) Mr Hanslow and Ms Chialton will file and serve any submissions in response by 4:00 pm on 4 March 2013; and
c) The dispute will be determined on the papers and without an oral hearing not before 4 March 2013.
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