Jorg v Nordic Coldrooms Pty Ltd t/as Nordic Coldrooms
[2014] QCATA 346
•16 December 2014
| CITATION: | Jorg v Nordic Coldrooms Pty Ltd t/as Nordic Coldrooms [2014] QCATA 346 |
| PARTIES: | Franz Jorg Christina Jorg (Applicants/Appellants) |
| V | |
| Nordic Coldrooms Pty Ltd t/as Nordic Coldrooms (Respondent) |
| APPLICATION NUMBER: | APL448 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President Stilgoe OAM |
| DELIVERED ON: | 16 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of 10 September 2013 is set aside. 4. Nordic Coldrooms Pty Ltd shall pay Franz and Christina Jorg $1,275.22 by 13 January 2015. 5. If Franz and Christina Jorg have complied with the order of 10 September 2013, Nordic Coldrooms Pty Ltd shall pay Franz and Christina Jorg $4,275.22 by 13 January 2015. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE - homeowner ordered to pay builder where unlicensed building work conducted – whether Magistrate correctly applied s42(3) Queensland Building Services Authority Act 1991 Qld - whether substantial injustice - whether grounds for leave to appeal Queensland Building Services Authority Act 1991 (Qld) ss 42(3), 42(4) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Jorg engaged Nordic Coldrooms Pty Ltd t/as Nordic Coldrooms to build a cold room. Nordic is a commercial cold room builder; the Jorg’s project appeared to be a domestic application.
Nordic subcontracted some of the work out to Northfreeze. The work was completed and Nordic rendered an invoice. Mr and Mrs Jorg refused to pay, saying the cold room compressor was noisy and not what they ordered. They were also critical of the standard of work.
Nordic filed a claim in the tribunal; Mr and Mrs Jorg filed a counterclaim. A Magistrate, sitting as a member of the tribunal, ordered Mr and Mrs Jorg pay Nordic $3,000, approximately half of its claim.
Mr and Mrs Jorg want to appeal that decision. They say the learned Magistrate erred in allowing Nordic to charge for the work even though it did not hold a QBSA licence. They say that the learned Magistrate took no account of the documents they filed in the tribunal. They say that the learned Magistrate’s decision does not compensate them for the poor workmanship.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr and Mrs Jorg have filed a thick folder of statements and quotes in support of their application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[3]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr and Mrs Jorg have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[4]
[3]QCAT Act ss 137 and 138.
[4]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Much of the material is a copy of that which was before the learned Magistrate. To the extent that it is fresh material, Mr and Mrs Jorg have provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Magistrate considered the issue of defective workmanship. She accepted Mr and Mrs Jorg’s evidence that the panels were poorly installed[7]. She accepted that the cold room was noisy but she did not accept that this was a defect in the work. The evidence can support the learned Magistrate’s decision and there is no compelling reason for me to take a different view.
[7]Reasons for decision page 3.
The real issue for the appeals tribunal is whether the learned Magistrate correctly applied s 42(3) of the Queensland Building Services Authority Act 1991 Qld (as it then was). That section states that a person who carries out building work, but does not hold a licence to do so, is not entitled to any payment for that work. The person is, however, entitled to recover the cost of materials and money paid to third parties (s 42(4)).
Queensland Building Services Authority issued an infringement notice to Nordic because of a complaint by Mr and Mrs Jorg. The offence notified in the infringement notice was “unlicensed contracting”. Mr and Mrs Jorg say that this infringement notice is sufficient to invoke the operation of s42(3) and, therefore, Nordic was not entitled to any payment. Mr and Mrs Jorg argued this point at the hearing. They produced a tribunal decision to support their position[8].
[8]McCoy v Sloss & anor [2012] QCAT 60.
In response, Mr Tondlestrand, on behalf of Nordic, told the learned Magistrate[9] that the QBSA issued the infringement notice because Nordic engaged Northfreeze as a secondary contractor and that, if Northfreeze had invoiced Mr and Mrs Jorg separately, Nordic would not have engaged in unlicensed contracting. Mr Tondlestrand also told the learned Magistrate[10] that Mr and Mrs Jorg were owner builders and, therefore, s 42(3) did not apply.
[9]Transcript page 1-19, lines 26-28.
[10]Transcript page 1-19, line 42.
The learned Magistrate did not explore these submissions nor did she call for evidence from either party about whether or not Mr and Mrs Jorg were owner/builders. She dealt with the issue in these terms:
The infringement notice issued by the QBSA related to the secondary contractor issue and there is no evidence that it affects the Applicant’s right to undertake the work directly.
The learned Magistrate erred in not considering the effect of unlicensed building work, and the submissions of each party, in more detail. Leave to appeal should be granted and the appeal allowed.
In its submissions to the appeal tribunal, Nordic gives two reasons why s 42 should not be applied. Firstly, it says that the error was a ‘technical’ one. Section 42(3) is clear in its terms. It does not distinguish between ‘technical’ and substantive. The only exception to s 42(3) appears in s 42(4).
Secondly, it says that it was only partly unlicensed, in that it was licensed to carry out all but the electrical work. If a contract contains both licensed and unlicensed work, the whole contract fails under s 42[11].
[11]Dart Holdings Pty Ltd v Total Concept Group Pty Ltd and Ors[2012] QSC 158.
Under s 42(4), Nordic was entitled to payment for materials and third party labour. There was little evidence, and no submissions, before the learned Magistrate as to what Nordic might be able to claim. The uncontested evidence shows that Northfreeze charged Nordic $6,300 for its work in installing the cold room[12]. The compressor cost $2,065.78[13], the evaporator $709[14], and the controller $650[15]. Therefore, Nordic was entitled to at least $9,724.78. Mr and Mrs Jorg paid a deposit of $7,000 leaving a balance of $2,724.78 which, even applying the principles of s 42(3), is owing to Nordic.
[12]Transcript page 1-18, line 8.
[13]Transcript page 1-17, lines 46-47.
[14]Transcript page 1-18, lines 9-10.
[15]Transcript page 1-19, lines 10-11.
The learned Magistrate discounted the amount owing to Nordic by an arbitrary amount of over $4,000 to compensate Mr and Mrs Jorg for the defective and incomplete work. Nordic did not appeal the learned Magistrate’s decision. Therefore, that arbitrary amount should be applied to the calculation of amounts owing by applying s 42(4). The net effect is that Mr and Mrs Jorg owe Nordic nothing and, in fact, Nordic should pay Mr and Mrs Jorg $1,275.22.
Leave to appeal is granted and the appeal allowed. The decision of 10 September 2013 is set aside. Nordic Coldrooms Pty Ltd shall pay Franz and Christina Jorg $1,275.22 within [28 days]. If Franz and Christina Jorg have complied with the order of 10 September 2013, Nordic Coldrooms Pty Ltd shall pay Franz and Christina Jorg $4,275.22.
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