Lloyd v Coombes
[2012] QCATA 54
•27 March 2012
| CITATION: | Lloyd v Coombes [2012] QCATA 54 |
| PARTIES: | Karen Anne Lloyd (Applicant/Appellant) |
| v | |
| David Coombes t/as ACADACA (Respondent) |
| APPLICATION NUMBER: | APL386-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 27 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Minor Civil Dispute – where findings of fact were open on the evidence – where evidence of the respondent preferred Queensland Civil and Administrative Tribunal Act2009, s 142(3) 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 Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Coombes is an electrical contractor. On 7 March 2011 he commenced a minor civil dispute proceeding in the Tribunal claiming $2,405.02 from Ms Lloyd for electrical work he carried out for her on a transportable house. The house was being constructed at Woongoolba by Mr Ron Alroy trading as Guest House Cabins. On completion of the house it was to be transported to Lamb Island.
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The issue before the learned Tribunal Member was whether there was a contract between Ms Lloyd and Mr Coombes for the electrical work or whether in fact, the contract was between Mr Coombes and Mr Alroy.
The matter came on for hearing on 3 October 2011. Both Mr Coombes and Ms Lloyd gave evidence about the circumstances of the engagement of Mr Coombes to do the electrical work. There was no dispute that he did in fact do electrical work on the house but the issue was whether the parties entered into a contract for that work or whether the work was included in the contract that Ms Lloyd had with Mr Alroy for the construction of the house.
At the conclusion of the hearing the learned Member gave reasons in which she concluded, as a finding of fact, that the contract was between Mr Coombes and Ms Lloyd. As a consequence she ordered that Ms Lloyd pay to Mr Coombes $2,405 for that work.
From that decision Mrs Lloyd has filed an application for leave to appeal or appeal. As this is an appeal from the minor civil dispute proceeding, leave to appeal is necessary.[1] 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?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] 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?[5]
[1] QCAT Act, s 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]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.
In her grounds of appeal, Ms Lloyd challenges the findings of the Tribunal and reiterates that the responsibility for the payment of the electrical work was with Mr Alroy.
Essentially what Ms Lloyd is asking the Appeal Tribunal is to revisit the factual matters in dispute before the learned Member and for the Appeal Tribunal to come to its own decision about those facts.
In lengthy submissions, Ms Lloyd repeats her evidence that the she had no contract with David Coombes. She had a number of conversations with him about the electrical work but she was not responsible for paying his account. Furthermore, she contends that David Coombes did not go to Lamb Island for the final connection of the electricity and she had to pay another contractor. She is of the opinion that the debt is owed by Mr Alroy and Mr Coombes should have taken action against him.
Ms Lloyd has obviously gone to considerable trouble in preparing her submissions to the Appeal Tribunal and included a number of documents including the contract with Mr Alroy. She has gone at some length to try and convince the Appeal Tribunal of the true facts as she understands them to be. But, the evidence does establish as, that at the time of engaging Mr Coombes, Mr Alroy was in some financial stress and therefore it was decided that Ms Lloyd should deal directly with Mr Coombes.
Mr Coombes, like Ms Lloyd in his submission, reiterates the factual circumstances surrounding the carrying out of the electrical work and maintains that he was engaged by Ms Lloyd. He relies on the fact that the initial wiring was paid for by Ms Lloyd directly and that he then completed the electrical work in accordance with the instructions given to him by Ms Lloyd on an electrical plan.
It has been said on many occasions by the Appeal Tribunal that its function is to determine whether there is an error in the primary decision. It is not for the Appeal Tribunal to determine where the truth lay between the competing versions given by the parties.[6]
[6] Fox v Percy [2003] 214 CLR 118.
For Ms Lloyd to be granted leave to appeal she must identify some error of law or that the conclusions of fact were not open on the evidence. Here, the conclusions reached by the learned Member were open to her on the information available in the documentary evidence and from the oral evidence of the parties. In those circumstances it is not the function of the Appeal Tribunal to interfere with those findings of fact. Here, the learned Member preferred the evidence of Mr Coombes as to the circumstances of entering into the agreement with Ms Lloyd and nothing Ms Lloyd has submitted compels me to change that conclusion.
Therefore, as Ms Lloyd has been unable to identify any error on the part of the learned Member, other than being dissatisfied with her findings of fact, leave to appeal must be refused.
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