Kestrel Defence International Pty Limited v Spin Creative Design Pty Limited
[2012] QCATA 116
•9 July 2012
| CITATION: | Kestrel Defence International Pty Limited v Spin Creative Design Pty Limited [2012] QCATA 116 |
| PARTIES: | Kestrel Defence International Pty Limited (Applicant/Appellant) |
| v | |
| Spin Creative Design Pty Limited (Respondent) |
| APPLICATION NUMBER: | APL415-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Acting Deputy President Susan Gardiner, Member |
| DELIVERED ON: | 9 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – LEAVE TO APPEAL – where applicant seeks leave to appeal decision on basis of findings of fact of adjudicator and lack of natural justice – where adjudicator preferred one party’s evidence – where ample time and assistance given to both parties – whether leave should be granted Queensland Civil and Administrative Tribunal Act2009, s 142 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
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 Act2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Richard Oliver
The issue for determination before the learned Member in the minor civil dispute proceeding was whether the parties entered into a contract for the applicant to supply technology services to the respondent. In simple terms a contract is formed when and offer is made, the offer is accepted and the parties agree the terms of the contract. The terms of the contract must be able to be identified with some certainty as well as the consideration supporting the bargain. Here the applicant contended that the consideration was $150/hr for the service it was to provide to the respondent.
Because the alleged contract was not in writing, the learned Member had to make a decision on the emails passing between the parties, their conversations and conduct from the time they met until the applicant issued the invoice. Upon a consideration of all that evidence the Member concluded that he was not satisfied that the evidence was capable of supporting a finding that all of the ingredients necessary for the formulation of a contract had been proved on the balance of probabilities. He quite rightly observed that the onus of proof was on the applicant to establish the necessary facts for the conclusion to be reached. The applicant fell short.
In the appeal the applicant has filed extensive submissions and has gone to considerable lengths to reargue the case that was before the learned Member. The submissions include a contention that the Tribunal should have assessed the claim, if uncertain as to the amount payable, on a quantum meruit. However, the submission is misguided because such a claim must have its basis in a contract.
The applicant has contended in his submissions that a quasi contract may be found. Quasi contracts may be found where the work done gave rise to debt which the other person impliedly promised to pay.[1] The member found that on the evidence he was unable to ascertain what was agreed to or on what basis payment should be made. This finding of fact was open to the Member on the evidence available. Based on this finding no quasi contract could be found as it cannot be ascertained there was any implied promise to pay or what work necessitated payment.
[1] De Bernardy v Harding 918530 8 Exch 822 at 822.
The applicant has made submissions regarding the Member’s consideration of evidence surrounding confidentiality. The Member appropriately did not consider the validity or the operation of confidentiality in the matter. Any alleged breach of confidentiality is a tortious claim and outside the jurisdiction of QCAT. Appropriately the Member was correct in considering the evidence surrounding the confidentiality issue only as evidence of whether or not there was an agreement between the parties.
An appeal is not an opportunity to reargue the case. The function of the Appeal Tribunal, particularly when leave or permission to appeal is necessary, is to identify any error in the primary decision maker or correct a substantial injustice. If the findings were open on the evidence the Appeal Tribunal will not interfere and that is the case here.
I have also had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
Kestrel Defence International Pty Limited represented by Mr Brendan Jones disputes a decision of the learned adjudicator of 19 October 2011 that no contact existed between his company Kestrel and Spin Creative (represented by Mr Phil Glenn). Mr Jones seeks leave to appeal the adjudicator’s decision.
Mr Jones says Mr Glenn owed him money for work undertaken by Mr Jones on an IT project planned by Mr Glenn. Mr Jones alleged an oral contract was entered into between the parties. Mr Glenn alleged it was work towards a quote to be provided by Mr Jones only. The learned Member found no contract existed but that if he was wrong about that, that the terms of the contract were too vague and uncertain to be enforced.
[10] Under the QCAT Act, an appeal in the minor civil dispute jurisdiction can only be brought with the Tribunal’s leave or permission.[2] The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
[2] Section 142 Queensland Civil and Administrative Tribunal Act2009.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at [13].
[5] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[6]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.
[11] Mr Jones argues that Mr Glenn provided false evidence; that the adjudicator misinterpreted the evidence; did not place appropriate weight on the evidence; made findings of fact against the evidence; failed to apply the relevant law or applied the wrong law; and breached rules of natural justice in making the decision.
[12] The transcript of this hearings shows that the hearing concluded after two and a half hours. A reading of the transcript shows that the learned Member allowed both parties substantial time to argue their case before him, assisting the parties on many occasions by asking relevant questions of each of them.
[13] The real problem for Mr Jones is that on the evidence before him, the learned Member found Mr Glenn’s argument (that there was no contract and that the information he was providing to Mr Jones was for the purposes of the preparation of a quote only) more compelling than Mr Jones’ argument (that there was a contract between the parties).
[14] Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[7]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[15] A close reading of the transcript of this long hearing shows that the findings of the learned Member were capable of being supported by the evidence provided by the parties before him and this Appeal Tribunal finds no reason to disturb the orders made by the learned Member. This hearing is an example of the reality of litigation where there are conflicting views on evidence and where one party’s recollection of events is accepted over the recollection of the other party.
[16] There is no demonstrated or discernable error in the learned Member’s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal should be refused.
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