Hitchins Technologies Pty Ltd v Argeres
[2013] QCATA 125
•22 April 2013
| CITATION: | Hitchins Technologies Pty Ltd v Argeres [2013] QCATA 125 |
| PARTIES: | Hitchins Technologies Pty Ltd (Applicant/Appellant) |
| v | |
| Mr Kosta Argeres (Respondent) |
| APPLICATION NUMBER: | APL071-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 22 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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 Argeres bought a pool re-coating product called Epotec from Hitchins Technologies Pty Ltd. When he received the Epotec, he also received a set of application instructions. He applied the Epotec in accordance with the instructions but he was not satisfied with the result. He filed a claim claiming reimbursement of the cost of the Epotec plus the cost of additional materials and the water to fill his pool. The Tribunal accepted most of Mr Argeres’ claim and ordered Hitchins pay Mr Argeres $1,350.
Hitchins wants to appeal that decision. It says that it was not given sufficient notice of the hearing. It also says that the learned Adjudicator’s decision “widely impacts on all paint manufacturers in that they are now responsible for the outcomes of their paints”. Hitchins says that the learned Adjudicator’s decision is “too onerous” and implied “a level of responsibility beyond that expected by them”.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Hitchins representative, Mr Hitchins, did tell the learned Adjudicator that he only received notice of the hearing three days before.[5] The transcript shows that, in spite of that very short time frame, Mr Hitchins was able to address each of Mr Argeres’ points of claim and offer the learned Adjudicator an alternative explanation. Further, Mr Hitchins produced a technical report from the Epotec manufacturer to support his submissions. I am satisfied that the short notice did not disadvantage Hitchins.
[5] Transcript at 21:25
The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[8]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[7] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[8] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Hitchins gave evidence that the cause of Mr Argeres’ problem was lime from the tile grout running over the partly cured Epotec. He admitted that the application instructions did not warn of that possible consequence. He also admitted that the application instructions should be amended to include that information.
Courts and tribunals often impose obligations that are beyond what parties expect. If a legal framework, as here, can support the imposition of those obligations then the party cannot complain about the increased obligation.
The learned Adjudicator’s decision rested solely on Mr Hitchins’ admissions. The learned Adjudicator’s decision might have been different if Mr Hitchins had not admitted that the application instructions were deficient. That, however, was not the dispute before the learned Adjudicator.
There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts.
There is no question of general importance that should be determined by the Appeals Tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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