Lin v Dang
[2014] QCATA 51
•31 March 2014
| CITATION: | Lin v Dang [2014] QCATA 51 |
| PARTIES: | Yu-Min Lin (Appellant) |
| v | |
| Jessica Quynh Dang (Respondent) |
| APPLICATION NUMBER: | APL513 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 31 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where agreement to paint a house – where painter unlicensed – where work defective – where tribunal ordered compensation - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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
Ms Dang engaged Mr Lin to paint her house. She supplied the paint and paid Mr Lin $2,500 for his labour. Mr Lin is not a licensed painter.
Within two months, the paint started bubbling and peeling. Ms Dang called on Mr Lin to fix the bubbling and peeling paint. He did not do so. Ms Dang then obtained quotes from professional painters to fix the problem. She filed a claim in the tribunal for $8,470, the cost of a professional painter repainting the problem areas.
An Adjudicator ordered Mr Lin pay Ms Dang $8,470.
Mr Lin wants to appeal that decision. He says the decision is unfair because he has to pay Ms Dang almost four times the amount she paid him for the work. He says that there were four people working on the job, so why isn’t the cost of $8,470 split between the four of them. He says that the contract Ms Dang presented to the tribunal was a forgery and did not reflect the actual agreement he made with her.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
The learned Adjudicator acknowledged[2] that it was unfortunate the cost of rectification exceeded the cost of the job. He also observed, correctly, that Ms Dang was entitled to be placed in the position she would have been in if Mr Lin had done the job correctly in the first place. The evidence can support the learned Adjudicator’s findings and he was not in error.
[2]Reasons for decision, page 5 at [22].
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Ms Dang filed her claim against Mr Lin and his wife, Ms Wong. The learned Adjudicator found that Ms Wong was not a party to the contract[5] so he made no order against her.
[5]Reasons for decision, page 5 at [20].
The parties discussed the roles of the other people on site. Ms Dang told the learned Adjudicator she dealt only with Mr Lin. She said she did not know who the others were and she did not know what their role was in the contract[6].
[6]Transcript page 1-9, line 28; page 1-19, lines 22-24; page 1-22, lines 38-43.
In his response to the application, Mr Lin said that he was, in fact, a partner with a Mr Wang. At the hearing, Mr Lin told the learned Adjudicator that Mr Wang was his boss, and that Mr Lin was simply a salesperson for the company[7]. The learned Adjudicator had to decide between the competing versions. He preferred Ms Dang’s version of events. The evidence can support the learned Adjudicator’s findings and I can find no compelling reason to come to a different view.
[7]Transcript page 1-25, lines 38-46.
Similarly, the learned Adjudicator took evidence from both sides about whether or not the contract was a forgery. He saw no reason for Ms Dang to forge documents. He had the opportunity to look at the original contract[8]. Mr Lin has not provided any credible proof that the document was a forgery. That fact that it was poorly written, incomplete and not properly signed, does not mean that it was forged. The evidence can support the learned Adjudicator’s decision and I can find no compelling reason to come to a different view.
[8]Transcript page 1-20, lines 23-38.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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