Lavis v Dean Enterprises Qld Pty Ltd

[2012] QCATA 136

CITATION: Lavis v Dean Enterprises Qld Pty Ltd [2012] QCATA 136

PARTIES:	Michael James Lavis (Applicant/Appellant)
v
Dean Enterprises Qld Pty Ltd (Respondent)

APPLICATION NUMBER: APL045-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: R Oliver, Senior Member

DELIVERED ON: 9 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

Minor Civil Dispute – whether respondents claim is defeated by a proposed offsetting claim

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 25 January 2012 the Tribunal, sitting in the minor civil disputes jurisdiction made an order that the applicant pay the respondent $2,459.00.  The claim arises as a result of haulage work carrying out by Dean Enterprises for Mr Lavis in July 2011.  The cost of that work was $3,300.00 but after Dean Enterprises made a contra allowance for work carried out by Mr Lavis for it, the claim was reduced to $2,459.49. 

1. From the learned Adjudicator’s decision, Mr Lavis has filed an application for leave to appeal or appeal.  Leave is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction of the Tribunal[1] leave, or permission, will only be given where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

   [1] QCAT Act, s 142(3).

1. During the course of the hearing, the learned Adjudicator was firmly of the view that there was no defence to the proceeding.  Mr Lavis did not raise any defence and sought to offset the claim with other contra work.  That proposal was rejected by Dean Enterprises.  The learned Adjudicator was about to give judgment in the matter when Mr Lavis raised another defence that is the rate at which the haulage charge was to be charged.  It was charged, in accordance with Dean Enterprises’ invoices at $110.00 per cubic metre but Mr Lavis contended that the true agreement was $50.00 or $55.00 per cubic metre.  The learned Adjudicator considered this further defence which arose late in the day and rejected it, preferring the evidence of Mr Dean, representative of the respondent. 

1. It is clear from the transcript that the learned Adjudicator carefully considered Mr Lavis’ arguments in defence of the claim but on hearing from both parties, particularly over the latter part of the hearing the evidence of Mr Dean was preferred.  That preference, was open on the evidence given during the course of the hearing. 

1. In submissions in support of the appeal the applicant contends that there was no consideration for the work undertaken by the respondent.  Clearly this is incorrect.  The respondent carried out cartage work for the applicant at, what the learned Adjudicator found to be, an agreed rate of $110.00 per cubic metre. 

1. The fact that another invoice did not issue to offset monies said to be owing by the respondent to the applicant did not negative Dean Enterprises’ claim for the balance monies owed.  Mr Lavis can commence proceeding to recover any monies said to be owing by the respondent in separate proceedings.

1. With respect to the contra agreement contended for by Mr Lavis, the learned Adjudicator found that there was no dispute about the amount of the debt and said, correctly, “where a contracted party forebears to sue and then changes their mind then that is insufficient to discharge the debt and its on the basis that the parties providing no consideration to such an agreement”.

1. The applicant in this case has been unable to identify any error of law in the learned Adjudicator’s reasoning nor is there any substantial injustice which would warrant the grant of leave and therefore, leave to appeal is refused.