Heaver v Tyrrell

[2016] QCATA 107

CITATION: Heaver & Anor v Tyrrell [2016] QCATA 107

PARTIES	Peter Heaver Yolande Heaver (Applicants/Appellants) v Michael Tyrrell (Respondent)
APPLICATION NUMBER:		APL 013-16

MATTER TYPE: Minor Civil Dispute

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 5 July 2016

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.    The application for leave to appeal is allowed.

2.    The appeal is partially allowed.

3.    The original decision is amended down by the amount of $90.71.

4.    Accordingly, the applicants are to pay the respondent the amount of $12,140.98.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicants seek to adduce new evidence – whether the applicants were afforded natural justice – whether the tribunal made a finding unsupported by evidence

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the parties entered a verbal agreement for the provision of building services – where the budget was exceeded – where the home owner refuses to pay the builder the excess amount – whether it was open to the tribunal to award the builder the claimed amount

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 138

Fox v Percy (2003) 214 CLR 118

Nadalini v RJW Developments Pty Ltd [2013] QCATA 23

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. This application for leave disputes the decision of a Magistrate in Nambour sitting as the tribunal to award the respondent builder the amount of $12,231.69 for building costs owed by the applicant homeowners.

2. The applicants entered into a verbal agreement with the respondent for the provision of building services. The original budget for the work was $20,000. During the course of the work, this budget was exceeded. Now, the applicants refuse to pay the extra amounts as they were incurred beyond the scope of the verbal agreement.

   The leave application

3. The applicants expressly seek a “review of the case”. This is not the appeal tribunal’s role. To be eligible for leave to appeal, the applicants must demonstrate a legal or factual error that infected the original tribunal decision which, if not corrected on appeal, is likely to cause them substantial injustice.

4. The applicants’ ground of appeal is not immediately apparent in the application, but appears to be that the tribunal did not take relevant considerations taken into account because the applicants were not given enough time to state their case thoroughly.

   Procedural fairness

5. Having read the transcript from the tribunal hearing in Nambour on 17 August 2015, it is true that the Magistrate did not ask the applicants if there was anything further they wished to add. However, at 1-6:20, Mr Heaver does say, “[T]hat’s about it”. The Magistrate also had the full written submissions of both parties at her disposal, before handing down her decision ex tempore four months later. There is no evidence that this was not properly considered.

   Additional evidence

6. It becomes apparent on reading the applicants’ submissions that the “thorough case” they seek to present to this appeal tribunal involves the presentation of new evidence they consider to be relevant but was not considered at first instance.

7. The appeal tribunal usually only accepts fresh evidence on appeal that was not reasonably available at the first instance.[1]

   [1] cf QCAT Act s 138; Nadalini v RJW Developments Pty Ltd [2013] QCATA 23 [15].

8. Despite the apparent arithmetical inconsistency, the amounts the applicants say they have paid so far ($8,187.50 for materials and $25,187.50 on the renovation project all up) may well be true, but even if they are, they either were impliedly rejected (or should have been claimed and verified)[2] at the first instance.

   [2]Their offer to bring the total renovation cost up to the budgeted amount of $20,000. See post, [17].

9. In any case, the award in question was a finding by the tribunal of an amount owing based on her acceptance of the evidence of Mr Tyrrell that he had not yet been paid for outstanding work that had been previously agreed to. As the new evidence relates to past work, it would not alter the result or justify disturbing findings of fact or inferences otherwise open on the evidence presented.[3]

   [3]        See, for example, Fox v Percy (2003) 214 CLR 118 [29].

10. As to the claim that the applicants “have spoken to one of Michaels Tyrrells (sic) contractors who has stated that Michael Tyrrell has a habit of telling his contractors to “GO SLOW as the client has plenty of money. We believe that he has fabricated the total hours spent on our job”; although the tribunal is not bound by the normal rules of evidence and has a discretion to ignore hearsay (what somebody says to a party out of court) and admit and act on any information from a reliable source according to its assessed weight, the applicants have not proposed any way of presenting the evidence (orally or by affidavit) so it can be tested and safely acted on and, if required, tested by the respondent. Nor is there any explanation of what the amount of any alleged difference is or how that accepting the evidence would practically change the order.

11. The applicants also dispute the reasonableness of various charges and works. Again, however, they have not provided sufficient evidence for this appeal tribunal to conclude that they were not reasonably available to the original tribunal, or would have made any difference to the decision.

    Quantum

12. The applicants claim that they “have not been given information as to how the Member reached her decision in favour of Michael Tyrrell for the amount of $12,231.69”.

13. The respondent’s original claim was for the amount of $11,846.38, made up of $5,836.38 and $6,010 for labour, plus interest of $90.71. The subtotal was $11,937.09, which the tribunal awarded together with the additional award of the cost of the filing fee, which was $294.60. This added up to the amount awarded; $12,231.69.

14. The tribunal accepted these substantive amounts at the first instance and the applicants have not furnished this tribunal with any evidence that the amounts provided were false or excessive compared to the agreed sum. As a result, there is nothing to justify overturning this finding of fact.

15. In his Form 3 application to the tribunal, Mr Tyrrell confirmed no interest had been agreed between the parties. In this case, the interest will be determined by the tribunal (as the Form 3 states).

16. Mr Tyrrell had calculated the interest owing as $90.71 up to the date of his application, but did not explain how he reached this figure. Nor, based on a reading of the transcript, did the tribunal consider any interest component under s 14(3) QCAT Act. While the respondent provided documentation to substantiate his claimed expenses, he does not appear to have documented the amount claimed for interest. As such, it appears that the tribunal erred in this respect by making a finding of fact that was unsupported by evidence and failed to exercise its own statutory discretion on the best available information.

17. Finally, the applicants say they are “prepared to pay the $3000 in final settlement of this matter, to bring the total renovation to the budgeted amount of $20,000 which was agreed upon by both parties”. Any potential offer to settle and its acceptance is something to be agreed between the parties themselves.

    Orders

    1.    The application for leave to appeal is allowed.

    2.    The appeal is partially allowed.

    3.    The original decision is amended down by the amount of $90.71.

    4.    Accordingly, the applicants are to pay the respondent the amount of $12,140.98.