Lee v Abilities Engineering Pty Ltd
[2011] QCATA 349
•16 June 2011
| CITATION: | Lee v Abilities Engineering Pty Ltd [2011] QCATA 349 |
| PARTIES: | Mr Peter Lee |
| v | |
| Abilities Engineering Pty Ltd |
APPLICATION NUMBER: APL003-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 16 June 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal granted.
2. Appeal allowed.
3. Proceeding referred back to the tribunal for a compulsory conference on a date to be advised.
| CATCHWORDS: | LEAVE TO APPEAL – where evidence about licence status of contractor not considered – whether arguable case of error – whether reasonable possibility of substantial relief BUILDING DISPUTE – where contractor not licensed – where dispute about payment Queensland Building Services Authority Act 1991, s 42(4) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
In May 2009, at the request of Mr Lee, Abilities Engineering Pty Ltd provided a quote for steel construction work at Mr Lee’s property. Mr Lee paid a deposit of $4,000 and work commenced. There is a dispute about what happened next but the parties do agree that work stopped. Abilities Engineering Pty Ltd asked for payment of $1,600 for the cost of work over and above the deposit; Mr Lee failed to pay. At a hearing on 10 June 2010, the learned Adjudicator ordered that Mr Lee pay Abilities Engineering Pty Ltd $1,600 plus the filing fee of $90.
Mr Lee has appealed that decision. Because this is an appeal from the tribunal’s minor civil dispute 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 to the applicant caused by some error?[3] 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?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[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.
Mr Lee’s response to the initial application by Abilities Engineering Pty Ltd included a note that the company had not provided a copy of its licence. Exhibit 8 in the proceedings, a business card from Abilities Engineering Pty Ltd, does not disclose a licence number. It is a matter that should have been addressed by the tribunal but the learned Adjudicator’s reasons for decision make no reference to the issue.
A determination on the question of whether Abilities Engineering Pty Ltd was licensed at the time of the work is a significant point. Section 42(4) of the Queensland Building Services Authority Act 1991 states that an unlicensed contractor’s claim for remuneration cannot include a claim for the supply of the person’s own labour, profit or the costs incurred in supplying materials and labour if the costs are not reasonable. In addition, s 42(4)(c) provides that the amount claimed cannot be more than the amount agreed to as the price for carrying out the building work.
Even though this is a modest claim, the status of the company’s licence is something which the learned Adjudicator should have addressed. Had he done so, it would have been apparent that the claim by Abilities Engineering Pty Ltd, as presented, may have had some significant difficulties. The learned Adjudicator was entitled to inquire how much of the amount claimed was attributable to the principal’s own labour, how much was profit and what was a reasonable amount for the work allegedly performed. Because this information was not available to the learned Adjudicator, he was unable to assess what was a reasonable amount in accordance with the requirements of the Queensland Building Services Authority Act 1991.
Therefore, there is a reasonably arguable case of error and there is a reasonable possibility that Mr Lee will obtain substantive relief on appeal. Leave should be granted and the appeal set aside. The proceeding should be referred back to the tribunal for a compulsory conference on a date to be advised.
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