Insightus Pty Ltd v KTR Group Pty Ltd

[2020] QCATA 174

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Insightus Pty Ltd v KTR Group Pty Ltd [2020] QCATA 174

PARTIES:

INSIGHTUS PTY LTD

(applicant/appellant)

v

KTR GROUP PTY LTD

(respondent)

APPLICATION NO/S:

APL303-19

ORIGINATING APPLICATION NO/S:

MCDO44-19 Coolangatta

MATTER TYPE:

Appeals

DELIVERED ON:

7 December 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the respondent provided NBN services for the applicant who was also a contractor – where the respondent commenced minor debt proceedings seeking payment for work done – where the matter was set down for hearing before an Adjudicator – where the applicant failed to attend the hearing – where the Adjudicator gave judgment for the respondent – where an application for reopening by the applicant was refused – where the applicant appealed – where there was no error shown to have been made by the Adjudicator on the evidence – where leave to appeal was refused

Pickering v McArthur [2005] QCA 294

REPRESENTATION:
Applicant:	Self-represented by Damien Ross
Respondent:	Self-represented by Dean Richards
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The applicant and respondent companies are both involved in the supply of broadband connection services.

2. NBN contracted Insightus to do work in various streets. Insightus engaged KTR in turn to do some of the work. One of the streets was Dickinson Street and KTR did the work there. KTR invoiced Insightus for the work. Insightus did not pay.

3. KTR commenced minor debt proceedings against Insightus in the Tribunal seeking to recover the invoiced amount of $15,347.29 plus the filing fee.

4. Insightus filed a response. The response claimed that no payment was due to KTR because the work was never completed and such work as was completed was not to “standard”.

5. The matter was listed for hearing on 2 October 2019 at Coolangatta. Insightus failed to attend the hearing. An Adjudicator heard from Mr Richards for KTR and gave judgment against Insightus in favour of KTR for $14,068.35 for claim, $739.26 interest on the claim and awarded the filing fee of $338.20.

6. Insightus applied for a reopening of the decision but that application was refused.

7. Insightus now seeks leave to appeal the decision made by the Adjudicator.

8. Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained. If leave is granted then the appeal may proceed.[1] 

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

9. Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] 

   [2]Pickering v McArthur [2005] QCA 294.

The grounds of appeal

1. The first ground of appeal is said to be as follows:

   KTR failed to comply with HOP standards, or finalise the HOP process with all work

2. The material offered as evidence by the parties in the hearing below was scant and what was presented of little relevance to the issues in dispute.  The same may be said in the application for leave to appeal. Insightus offers no explanation about what HOP standards or HOP processes are. Without an explanation of what those standards are and how they are relevant to the agreement between the parties this ground of appeal is entirely meaningless.

3. There is nothing contained in the material filed below concerning HOP standards or processes. Indeed what is significant about the material filed before the Adjudicator is the omission of evidence about and an explanation of the terms and conditions of engagement of Insightus by KTR. Without that, Insightus’ complaints about KTR’s entitlement to claim cannot be meaningfully assessed. In the application for leave to appeal Insightus admits there is $4,275 payable immediately by Insightus to KTR which Insightus refers to as an approved amount by Insightus’ customer (NBN). If the terms and conditions of engagement of KTR by Insightus required prior approval from the customer before KTR was entitled to claim and be paid, then those terms and conditions should have been provided to the Tribunal to support that defence. There is no such evidence, however.

4. This ground of appeal cannot succeed.

5. The second ground of appeal is as follows:

   KTR never invoiced correct amounts or for more than $200 of work in (sic) until after the QCAT claim had been sent.

6. KTR filed in the hearing below a copy of an invoice for the full amount of its claim. The invoice was dated 15 September 2018. At the hearing Mr Richards for KTR told the Adjudicator that payment for the invoice was due one month later on 15 October 2018. Mr Richards said the date of the invoice was 15 September 2018. His evidence was clearly to the effect that Insightus had been given the invoice in question by KTR on or about 15 September 2018 and Insightus had failed to pay within 30 days.

7. The Adjudicator was entitled to accept that evidence on the day of hearing. That was sworn evidence by Mr Richards. But in any case, unless invoicing was a condition of payment, and there was no evidence about the conditions of engagement presented here, KTR was entitled to be paid for its work done. Instituting proceedings for recovery of a debt prematurely prior to appropriate notice and demand made for it merely has cost implications for the applicant.[3] It does not disentitle the creditor from pursuing the claim. This proposed ground of appeal cannot succeed.

   [3]Windgap Foundation Ltd v Solomons [2018] NSWSC 809

8. None of the remaining grounds of appeal have prospects of succeeding. They all have the common flaw of failing to identify any error made by the Adjudicator in the hearing below. The Adjudicator considered the various allegations made by Insightus in its material filed below. He took into consideration a spreadsheet with comments and the various emails produced by Insightus but he stated he preferred the sworn evidence given at the hearing by Mr Richards of KTR. He was entitled to do that.

9. Looking to the other purported grounds of appeal, Insightus refers to a ground of appeal as “waiting for assistance/more information on the jobs to rectify the matter which was made very difficult by KTR by ignoring almost all emails/questions related to the project.”

10. Not only is this statement confusing but it is embarrassing in its failure to address  how, by KTR ignoring emails/questions, that disentitled KTR to be paid for work done. As stated, there is no evidence of the terms of engagement of KTR by Insightus.

11. Then there is the next alleged ground of appeal that all invoices sent from KTR to Insightus were incorrect. There was no evidence led however showing how or why they were incorrect.

12. Then Insightus states that it “only received final confirmation from its customer” on 4 November 2019 which was a delay caused by KTR.

13. The work was done by KTR in 2018. The invoice for the work was sent 15 September 2018. Mr Richards for KTR gave sworn evidence that payment on the invoice was due on 15 October 2018. How the delay in final confirmation from Insightus’ customer precluded payment to KTR for work done, given the contract was between KTR and Insightus, not KTR and the customer, is again an assertion made without supporting evidence which was rejected by the Adjudicator as mere unsupported contention.

14. Finally there is a ground of appeal that Insightus had to pay for materials and Insightus could not recover “costs of over $2100”. Again Insightus provided no evidence in support of this statement.

15. There is no error shown to have been made by the learned Adjudicator. Insightus has no prospects of success in appeal. Leave to appeal is refused.