Lukac v Bennett
[2015] QCATA 134
•7 September 2015
| CITATION: | Lukac v Bennett [2015] QCATA 134 |
| PARTIES: | Andres Luis Lukac (Applicant/Appellant) |
| v | |
| James Bennett (Respondent) |
| APPLICATION NUMBER: | APL238-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 7 September 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody |
| DELIVERED ON: | 7 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | THE TRIBUNAL ORDERS THAT: 1. Leave to appeal is refused. | |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONTRACT – where the respondent filed an originating application in the Queensland Civil and Administrative Tribunal jurisdiction of the Magistrates Court for a minor civil dispute – where the respondent claimed that the applicant entered into a contract with the respondent for the supply of certain architectural services – where the respondent claimed outstanding amounts owing under the contract for architectural services – where the applicant asserted that the applicant had not entered into a contract with the respondent for the delivery of architectural services – where the Magistrate found that the applicant had entered into an oral contract for the delivery of architectural services – where the Magistrate ordered that the applicant pay the respondent the outstanding amounts owing under the contract – where the applicant filed an application for leave to appeal and appeal outside of the prescribed time limit – where the applicant was granted an extension of time within which to file an application for leave to appeal and appeal – where the applicant claims that the Magistrate erred in finding that the applicant had contracted with the respondent for certain architectural services – where the applicant claims that the respondent failed to establish the existence of the contract to the required civil standard – whether there is a serious question to be tried – whether the application for leave to appeal should be granted. | |
APPEARANCES:
APPLICANT: A Lukac for the applicant
RESPONDENT: J Bennett for the respondent
REASONS FOR DECISION
This is an application for leave to appeal and appeal filed by the applicant on 9 June 2015 against the decision of a Magistrate exercising his minor civil dispute jurisdiction in MCD217/14 on 10 November 2014, ordering the applicant to pay the respondent the contract price for certain architectural services. The respondent resists the application for leave to appeal and appeal on the basis that the Magistrate made no discernible or material legal, factual, or discretionary error.
Context
The applicant contacted the respondent on 8 September 2014. The content of the telephone conversation was that the applicant was performing certain construction works or renovations at his business premises and required architectural drawings to file with a licensed building certifier to obtain building approvals. It is common ground that the applicant informed the respondent that the architectural services were required urgently as the applicant had commenced construction works, and the relevant building authorities required certification to issue the approvals. The respondent informed the applicant he would require time to consider the request.
The respondent contacted the applicant later on 8 September 2014 and supplied a quote for professional architectural services in the measure of $1,650.00. It is agreed that the applicant stated that he and his wife would need to consider the quote before engaging the respondent.
The applicant contacted the respondent again on 8 September 2014. The respondent claims that the applicant agreed to enter into a contract and invited the respondent to attend the construction site on the following day to commence the delivery of the agreed architectural services. The applicant claims that he did not agree to enter into a contract and the respondent only attended at the site to obtain certain measurements to facilitate the provision of a more accurate quote.
The respondent attended the business premises of the applicant on 9 September 2014 for several hours and obtained various measurements, took several photographs, and created preliminary drawings relating to the construction works. The respondent claims that the applicant assisted the respondent in inspecting the premises securing appropriate measurements and photographs. The applicant claims that the respondent appeared at his premises while he was tiling, and that he rendered no assistance in procuring the required measurements and photographs.
On 9 and 10 September 2014 the respondent commenced work on the production of the relevant architectural drawings. The finalised drawings, presented to the Magistrate at the original hearing, were suitable to obtain certification from the licensed building certifier engaged for the premises. The architectural drawings were retained by the respondent following the applicant’s refusal to pay the agreed contract price under a professional lien.
At 12:26PM on 10 September 2014 the respondent sent electronic correspondence to the applicant containing an invoice for the professional services performed. The respondent also unsuccessfully attempted to call the applicant at 4:00PM on 10 September 2014 regarding payment of the invoice.
Following the unsuccessful attempts to contact the applicant, the respondent appeared at the business premises of the applicant on 10 September 2014 requesting payment of his professional fees. The respondent claims that the applicant stated to the respondent that he had seen, and would pay, the invoice.
Contrary to the evidence of the respondent, the applicant claims that the he obtained a quote from Affleck Designs on 10 September 2014 for $800.00. The applicant states that he entered into a contract for the delivery of architectural services with Affleck designs. The applicant appears to accept that the respondent attended at his business premises on the relevant day, but makes unparticularised allegations that the respondent was “harassing” him, and that the applicant had not agreed to the payment of the invoice.
The respondent made several attempts to call the applicant on 11 September 2014. The respondent sent a further email to the applicant in the afternoon requesting payment of the invoice of professional services. Later in the afternoon, the respondent attended at the project site of the applicant to request payment. The respondent claims that the applicant refused to make payment and suggested that the conduct of the respondent amounted to extortion. The respondent thereupon asserted his professional lien over the relevant architectural drawings.
Determination of the Originating Application
The respondent filed the originating application MCD217/14 in the minor civil dispute jurisdiction of the Magistrates Court on 10 November 2014 seeking orders requiring the applicant to pay the respondent the agreed contract price of $1,650.00 for architectural services, in addition to the filing fee of $105.00.
The Magistrate heard the originating application on 23 March 2015. In addition to sworn oral testimony, the respondent adduced evidence before the Magistrate in the form of email correspondence exchanged between the applicant and respondent relating to the architectural services, preliminary architectural drawings relating to the business premises of the applicant, and final architectural drawings which might have been filed with the relevant licensed building certifier to facilitate building approval from the relevant authorities. The applicant, in addition to sworn oral testimony, presented evidence of several quotes for a range of services or goods delivered by various organisations, with an apparent intent of establishing that he had engaged the respondent only for the supply of a quote for architectural services.
The documentary evidence of the applicant may not have been formally received by the Magistrate, as it does not appear on the primary court file. Indeed, as the documentary evidence possesses limited probative value and relevance to the subject matter in dispute, it would have been appropriate for the Magistrate to exercise his discretion and refuse to admit the material into evidence.
The Magistrate preferred the evidence of the respondent. The Magistrate found that the applicant and respondent entered into an oral contract for the delivery of the architectural services in exchange for $1,650.00 of consideration. The Magistrate relied on inferences drawn from the documentary evidence and sworn oral testimony supplied by the respondent. The Magistrate ordered the applicant to pay the respondent the agreed contract price for the professional services, amounting to $1,650.00, and the filing fee of $105.00.
Procedural History on Appeal
The applicant filed the application for leave to appeal and appeal forming the foundation of present proceedings on 9 June 2015, which would appear to be approximately 50 days outside of the prescribed 28 day time limit from the date on which the respondent received notice of the decision.[1] The applicant filed an application to stay the operation of the decision of the Magistrate, which was quite rightly refused on 15 June 2015.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143.
The applicant, however, appears to have been granted an extension of time within which to file an application for leave to appeal and appeal under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). In considering an application for an extension of time, the decision-maker is required to engage in a preliminary assessment of the substantive merits of the application, the duration of the delay, and whether the applicant has provided a satisfactory explanation for the delay. The grant of the extension of time in circumstances where the applicant possesses a plainly unmeritorious appeal infected by significant unexplained delay would appear both inappropriate and extraordinary.
In my view, the extension of time was inconsistent with the objectives of efficiency and expediency, and incompatible with the public interest in finality of proceedings. Nevertheless, the Appeal Tribunal is now seized of the application for leave to appeal and appeal filed by the applicant.
Principles Governing an Application for Leave to Appeal and Appeal
The function of the Appeal Tribunal on appeal is to ascertain whether there is any legal, factual or discretionary error in the decision at first instance warranting appellate intervention. An appellant may appeal on the basis of questions of law, questions of fact, or mixed questions of law and fact. If the appeal is on the basis of questions of fact or mixed questions of law and fact, it is conducted by a rehearing.
An aggrieved party to a minor civil dispute, whether appealing on the basis of a questions of fact or law, or mixed questions of fact and law, is not entitled to an appeal as of right. The party must obtain leave of the Appeal Tribunal.
The requirement of leave to appeal is designed to achieve several objectives:
1. facilitate efficiency and expediency in administering the appellate jurisdiction;
2. promote finality in the resolution of disputes at first instance; and
3. prevent the Appeal Tribunal from being required to conduct a full rehearing in respect of frivolous, vexatious or unmeritorious appeals.
Leave to appeal also provides appropriate recognition to the principle that decisions and orders of the Tribunal at first instance are not merely provisional pending modification on appeal. Rather, proceedings at first instance are intended to finally resolve the substantive dispute among the litigants subject to any legal, factual or discretionary error.
To obtain leave to appeal, the applicant must ordinarily establish that:
1. there is a serious question to be tried; and
2. substantial injustice will be caused if leave to appeal is refused.
“Serious question to be tried” means that there is a real, legitimate, or genuine legal or factual issue for the Appeal Tribunal to consider. This requires the Appeal Tribunal to be satisfied that the appeal subject to the application for leave to appeal has reasonable, or at least plausible, prospects of success.
“Substantial injustice” means that the applicant has suffered a practical detriment as a result of the erroneous decision of the original decision-maker. It requires the error of the decision-maker to have caused, or materially contributed to, some form of damage, harm, injury, loss, prejudice or other disadvantage of the applicant. If the legal, factual or discretionary error would not have resulted in a different decision of the original decision-maker, there is no substantial injustice.
Grounds of Appeal
The applicant enumerates the following grounds of appeal in support of his application for leave to appeal and appeal:
1. the Magistrate erred in finding that the respondent had established the existence of a contract for the delivery of architectural services on the balance of probabilities;
2. the Magistrate erred in failing to consider the Code of Conduct of Architects in Queensland, which requires an architect to enter a written contract for the delivery of any architectural services exceeding $1,500.00;
3. the Magistrate erred in failing to consider the customary practice of the applicant to obtain multiple quotes for the delivery of any product or service;
4. the Magistrate erred in failing to understand clarification offered by the applicant in respect of statements made by the applicant when the respondent attended his premises; and
5. the Magistrate erred in failing to provide the applicant with adequate time to consider certain documentary evidence presented by the applicant in the original proceedings.
Ground of Appeal 1: Existence of Contract
The Appeal Tribunal recognises the benefit of the original decision-maker in having the opportunity to observe the conduct, demeanour, intonation and non-verbal communication of any witnesses giving oral testimony at first instance. Accordingly, the Appellate Tribunal will not interfere with the findings of fact of the original decision-maker provided that they are not unreasonable, perverse or manifestly inconsistent with the weight of the evidence.
The Magistrate was required to be satisfied that the applicant and respondent had entered into a contract for the delivery of the relevant architectural services on the balance of probabilities. The degree of proof required to satisfy the civil standard varies depending on the circumstances of the case and the subject matter which must be established.[2]
[2]Briginshaw v Briginshaw (1938) 60 CLR 336.
The Appeal Tribunal finds that on the oral and documentary evidence presented to the Magistrate, it was open for his Honour to find that the applicant and respondent entered into a contract for the delivery of the relevant architectural services.
This finding of fact was supported by the timing of the telephone conversations and email correspondence, the applicant’s knowledge that the respondent had attended at his business premises for the purposes of obtaining measurements and photographs, and preparing preliminary drawings, to support the architectural works, and the urgency associated with obtaining the architectural drawings to secure building approvals and certifications required by the relevant authorities.
Leave to appeal on this ground is not granted.
Ground of Appeal 2: Failure to Consider the Code of Conduct
The applicant has sought to adduce evidence of the Code of Conduct of Architects in Queensland, s 14 of which requires the architect to enter a written agreement with a current or prospective client where the professional fees and costs for the services are anticipated to exceed $1,500.00. The Code of Conduct, to the extent it is relevant, constitutes indirect evidence which might warrant an inference that the respondent would not have entered an oral contract for the delivery of architectural services in contravention of his professional responsibilities.
This constitutes a mixed question of law and fact raised for the first time on appeal. The Appeal Tribunal may grant leave if the facts forming the foundation of the ground of appeal might be established on the basis of the evidence adduced at the original hearing, or without difficulty on admissible fresh evidence. Even if this can be established, the Appeal Tribunal may refuse to allow the argument to be raised on appeal if it would cause prejudice to the respondent.
There is a public interest in ensuring that parties diligently and comprehensively present their case at first instance. Applicants should not be entitled to rely on their own inattentiveness and tactical choices to warrant a rehearing on appeal on a substantially different factual or legal basis than that raised at first instance. In my view, having regard to the fact that the applicant has supplied no satisfactory explanation for his failure to raise this point before the Magistrate, and the argument is inherently doubtful, this would be an appropriate case to refuse leave to raise a new mixed question of fact and law for the first time on appeal.
Even if the Appeal Tribunal were minded to grant leave for this argument to be raised for the first time on appeal, having regard to the urgency attached to the services, the Appeal Tribunal is satisfied that it would not be unreasonable to find that the respondent dispensed with the formal requirements of executing a written contract. Even if this inference were not available on the evidence, it would nonetheless have been open to the Magistrate to find that the respondent had entered into a contract in contravention, perhaps unknowingly, of the Code of Conduct.
Leave to appeal on this ground is not granted.
Ground of Appeal 3: Failure to Consider Customary Practice of Obtaining Quotes
The applicant claims that the Magistrate erred in failing to consider the applicant’s customary practice of obtaining quotes prior to entering into a contract for the delivery of products or services.
The applicant submits that, in light of this customary practice, the Magistrate should have inferred that the applicant did not enter into a contract for the delivery of architectural services as he had not previously obtained multiple quotes.
The evidence of the customary practice of obtaining quotes possesses limited relevance or probative value. The mere fact that in several other contexts the applicant sought multiple quotes for the delivery of services or products cannot justify the inference that on this occasion, after receiving a quote from the respondent, the applicant did not enter a contract for architectural services. Therefore, to the extent the evidence was not admitted in the original proceedings, it should not be admitted on appeal.
In any event, even if the applicant could establish a customary practice of obtaining multiple quotes before contracting for the delivery of products or services, that fact cannot justify the inference that the applicant did not depart from that practice to enter into a contract with the respondent for the delivery of architectural services in light of the countervailing evidence. This is particularly having regard to the fact that there was significant urgency attached to the acquisition of architectural drawings.
The Appeal Tribunal finds that it was open for the Magistrate to find either that: (a) the applicant did not possess a customary practice of obtaining multiple quotes before contracting for the delivery of products or services; (b) if the applicant possessed such a practice, the applicant departed from the practice having regard to the exigencies requiring the rapid acquisition of architectural drawings.
Leave to appeal on this ground is not granted.
Ground of Appeal 4: Misunderstanding Statements of the Applicant
The applicant, who comes from a non-English speaking background, claims that the Magistrate misunderstood certain statements made by the applicant regarding exchanges between the applicant and respondent. In the applicant’s written submissions, the reference to the misunderstood statement is to an unofficial transcript of the proceedings.
Following clarification in oral submissions, the applicant seems to be referring to the statements of the Magistrate on lines 45 to 48 of page 17 of the official transcript regarding an exchange between the Magistrate and the applicant, ostensibly taking place at lines 6 to 11 of page 14.
The Magistrate stated, in effect, that the applicant made the statement that he had seen, but was too busy to consider, the invoice on 10 September 2015 when the respondent presented at the applicant’s business premises. However, the transcript tends to suggest that no such statement had been made by the applicant in his oral submissions before the Magistrate.
Accepting that the Magistrate misunderstood this statement of the applicant, the Magistrate clearly preferred the evidence of the respondent, as demonstrated by lines 1 to 19 of page 18 of the official transcript. Therefore, the Magistrate does not appear to have relied on this statement of the applicant to the extent it diverged from the different evidence given by the respondent It was open for the Magistrate to prefer the evidence of the respondent, and the evidence of the respondent was sufficient to reach the required findings to dispose of the application.
Even if the Appeal Tribunal were to accept that the Magistrate relied on the misunderstood statement of the applicant, the Appeal Tribunal finds that it was not an essential link in the chain of reasoning of the Magistrate. The Appeal Tribunal finds that the decision of the Magistrate would not have been different even if the Magistrate had correctly understood the relevant statements of the respondent. Therefore, the factual error, to the extent there is a factual error, does not give rise to a substantial injustice.
Leave to appeal on this ground is not granted.
Ground of Appeal 5: Failure to Provide Adequate Time for Applicant to Consider the Evidence of the Respondent at the Hearing
The applicant submits that the Magistrate erred in failing to provide adequate time for the applicant to consider certain documentary evidence adduced by the respondent in the original hearing. In essence, the applicant asserts that this deprived the applicant of procedural fairness by not providing an opportunity to make submissions on the basis of the documentary evidence.
The Appeal Tribunal notes that the relevant evidence comprises of a sketch plan and certain architectural drawings prepared by the respondent. The Appeal Tribunal also observes that the Magistrate provided the applicant with an opportunity to inspect the evidence during the hearing. Indeed, the applicant appears to have made certain comments about the architectural drawings being slightly different from the actual layout of his business premises.
The applicant was provided an opportunity to object to the adduction of the documentary evidence by the Magistrate, but failed to do so. The applicant did not request an adjournment or further time to consider the documentary evidence. Indeed, even if the applicant had obtained such an adjournment, it is unclear how the content of the architectural drawings would have modified the substance of the applicant’s submissions, having regard to the fact that the applicant asserted that he had not entered into any contract with the respondent.
The failure of the applicant to object to the adduction of the evidence or request an adjournment, and the fact that the documentary evidence would not appear to have materially changed the applicant’s case, means that leave to appeal on this ground is not granted.
Conclusion
The application for leave to appeal of the applicant fails to disclose any serious question to be tried. Indeed, it appears that there is no real or plausible chance of success on appeal. Accordingly, leave to appeal should be refused.
Orders
The Appeal Tribunal orders that leave to appeal is refused.
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