Macol Pty Ltd v Rendermeister Pty Ltd
[2011] QCATA 164
•22 June 2011
| CITATION: | Macol Pty Ltd and Anor v Rendermeister Pty Ltd [2011] QCATA 164 |
| PARTIES: | Macol Pty Ltd Macol Transport Equipment Pty Ltd (Applicants/Appellants) |
| v | |
| Rendermeister Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL250-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 22 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Leave to appeal is granted. [2] The appeal is allowed. [3] The application is remitted to the minor civil disputes jurisdiction to be reheard by another member/adjudicator. |
| CATCHWORDS: | Queensland Civil and Administrative Tribunal Act 2009, s 142(3) TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an appeal from a decision of the Tribunal made on 12 August 2010 ordering both appellants pay to the respondent the sum of $21,589.00 for rendering the external walls of a house being built by Christopher Willich at 52 Woodlands Drive, Thornlands.
The original contract the subject of the proceeding was negotiated between Alexander Kammerlocher, as representative of the respondent, and John Willich on behalf of Christopher (his son). Two quotes were prepared by Mr Kammerlocher and sent to “John”. There were, one can reasonably infer, also discussions between John and Chris Willich and Mr Kammerlocher.
It seems clear an agreement was reached on 10 November 2008 whereby John Willich orally accepted the respondent’s amended quote of $25,000.00, again on behalf of his son, to render the house.[1] In forwarding the quote Mr Kammerlocher said:
“Please find attached an updated quote as per your son’s request.”
[1] Applicants’ submissions in the MCD para 7 and attachment “B”.
Unfortunately, the documentary evidence or the oral evidence provides no assistance in identifying how the named applicants are said to be the contracting parties. Macol Pty Ltd disputes, in the response, the allegation that it contracted with the respondent. The best I can glean from the material is that a cheque for $10,000.00, payable to the respondent, was drawn on the bank account of Macol Pty Ltd on 2 December 2008. Wages were paid to casual workers to complete the rendering work, according to John and Chris Willich, by Macol Transport Equipment Pty Ltd, and a final invoice was sent from the respondent to Macol Pty Ltd: attention John and Chris Willich. This evidence does not establish the identity of the contracting parties. In the absence of any other evidence it does seem, by way of observation, that the contract was between the respondent and Christopher Willich, the beneficiary of the work.
Therefore one of the issues for determination in the proceeding was the identification of the contracting parties.
In any event after the agreement was reached the respondent set about the rendering of the house. Mr Kammerlocher engaged some backpackers to assist in the work and they became quite friendly with John and Chris Willich. Work was sporadic and by 1 December, according to John Willich, the work was not complete, the scaffold had to be removed and a meeting was called between John and Chris Willich and Mr Kammerlocher. An email from John Willich to Mr Kammerlocher set the scene for the meeting, it provided for 3 options:
“option 1: you accept an amount for work done
option 2: you supply all materials to complete the job
option 3: you complete the job and be paid your original quote.”
The email went on to say that if there was no response penalties would apply and John and Chris Willich would take over the job to complete it. Then, on 1 December, Mr Kammerlocher prepared an interim invoice for $15,500.00 and attended the meeting. He also wrote back, via email, to say that he had “all materials to finish external render (sic) delivered on site by Wednesday morning”. At the meeting John and Chris Willich contend that on paying the $10,000.00 to Mr Kammerlocher they would then take over the job.
It is contentious as to whether any further work was undertaken by the respondent after 1 December 2008. That was the substance of the dispute. The respondent, in written submissions filed in the minor civil dispute hearing, contended that all works had been completed by 29 November 2008.[2]
[2] Applicant’s submissions paragraph 7.
The proceeding came on for hearing before a Tribunal Member on 12 August 2010. He made orders allowing the respondent’s claim to the extent of $21,589.00, which included a filing fee of $250.00. He dismissed the applicants’ counter claim for the cost of completing the work.
[10] From that decision the applicants filed an application for leave to appeal or appeal. Leave is necessary as this is an appeal from the minor civil dispute jurisdiction.[3] 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?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6] 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?[7]
[3] QCAT Act, s 142(3).
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5] Cachia v Grech [2009] NSWCA 232 at 2.
[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7]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.
[11] Leave to appeal will ordinarily only be granted 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?
[12] To determine whether leave should be granted, it is necessary to consider the grounds of appeal which are in summary: that the applicants were not given an opportunity to be heard; the Tribunal failed to give proper consideration to the evidence; the Tribunal failed to make findings of important facts; the Tribunal failed to give any weight or any sufficient weight to the evidence of the applicants; that the respondent took no further part in the job after 1 December 2008 and that the job was not completed.
[13] Essentially the applicants are saying they were denied natural justice. The QCAT Act imposes an obligation to give reasons in a final hearing.[8] It is further submitted the learned Member’s reasons are deficient and do not meet the fundamental requirement for reasons as set in Drew v Makita (Australia) Pty Ltd[9] where Muir JA said;
“The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with a “justifiable sense of grievance” through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of judicial process; to afford natural justice or procedural fairness; to provide “the foundation for the acceptability of the decision by the parties and the public” and to further judicial accountability.”[10]
[8] QCAT Act, s 122.
[9] [2009] ACA 66 at paragraph 58.
[10] Footnotes excluded.
[14] Both parties have filed comprehensive submissions in support of their respective positions on this application. I also have the transcript of the hearing and the reasons for the learned Member’s decision.
[15] What emerges from reading the material filed in the proceeding and the transcript is that a number of quite specific issues required determination by the Tribunal.
[16] First and foremost, given that there were two named respondents in the original proceeding, was the proper identification of the parties to the contract. Secondly, the status of the work as at 1 December 2008; thirdly, whether the contract was varied during the discussion between Mr Kammerlocher and John and Chris Willich on 1 December 2008; fourthly, whether the respondent carried out any further work after 1 December 2008 and if so, to what extent; finally, a proper consideration of all the evidence in support of the applicant’s contention that they completed the work and paid wages to the former employees of the respondent.
Contracting parties
[17] The learned Member made an order that both the applicants pay the respondent $21,589.00. Nowhere in his reasons, or in the transcript, does he identify any basis upon which it is established that both applicants either contracted with the respondent or are liable for the amount claimed.
[18] There is no analysis, as one might expect, of the evidence supporting the agreement entered into on 10 November during the discussions with Mr John Willich. No evidence was given or sought from Mr Kammerlocher about the contractual arrangements and it is not addressed in the submissions. It can only be assumed that he considered Macol Pty Ltd was liable because it wrote out the cheque. The basis upon which Macol Pty Ltd was brought into the proceeding eludes me.
[19] Both applicants, in accordance with principle, are entitled to know why they are liable to pay the judgment amount to the respondent. In fact the point was raised quite specifically by Mr Willich near the conclusion of the hearing but his concerns remained unanswered. It seems the learned Member simply proceeded on the basis that as both companies were parties, they were both liable to the respondent[11]. I am unsure whether there is a real contest that Macol Equipment Pty Ltd is a proper party, and the contracting party because again this was not addressed in the reasons.
[11] Transcript page 42 line 40ff.
[20] In respect of this issue there has been a departure of what would be expected in the respect of reasons to establish why Macol Pty Ltd is liable to the respondent. One is of course mindful of the fact that the minor civil disputes jurisdiction of QCAT is extremely busy and those presiding have to deal with a large number of cases each day. However, this does not relieve the presiding member/adjudicator of the obligations to comply with the requirements to make necessary findings to dispose of the application according to law and give adequate reasons commensurate with the nature of the proceeding and the issues for determination[12].
Findings in respect of the 1 December 2008 Meeting.
[12] TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.
[21] The starting point here is the submission by the respondent in the written submissions put before the learned Member that the “applicant had completed all of the works required under the quotation originally accepted by the respondent” and Mr Kammerlocher’s evidence that it was completed.[13] It was on this evidence alone that the Tribunal found in favour of the respondent.
[13] Transcript page 8 line 30.
[22] Contrasted against that evidence is the email from John Willich giving the options referred to in paragraph 6 above. The response to that email was that Mr Kammerlocher will have the materials on site “to finish the external render” by Wednesday. In addition to that email the respondent then issued an invoice for only $16,500.00 when it alleges the job was finished, as opposed to $25,000.00 plus GST. Once again, one can rhetorically ask if $25,000.00 was in fact owed, why would Mr Kammerlocher accept only $10,000.00. These matters were simply not addressed by the learned Member. Leaving aside the oral evidence of the parties, this is probative evidence that is not dealt with in the reasons. The learned Member did make a credit finding by accepting Mr Kammerlocher’s evidence but such a finding, in a vacuum as it were, carries little weight.
[23] It follows that in not addressing this critical evidence in his reasons, the learned Member fell into error and did not discharge the obligation to give adequate reasons.
Counterclaim
[24] The counterclaim was dismissed solely on the basis of an acceptance of Mr Kammerlocher’s evidence, and a rejection of the evidence of Mr Volz that he did the rendering work after 1 December 2008. Mr Volz provided two comprehensive statements as to his involvement in the project. To a degree they were somewhat general but, coupled with the evidence referred to above, a finding that the work was finished before Christmas and that when they returned they worked on the “inside” of the house called for some further reasoning to reconcile it with the documentary evidence. This was not done in any meaningful way.
[25] Furthermore, there was no analysis of the evidence of both Christopher Willich and John Willich who both contended that work was done by them, with the assistance of Mr Volz and others, subsequent to the 1 December 2008.
[26] Once again the reasons are deficient in dealing with this conflicting evidence.
Generally
[27] The manner in which the hearing was conducted causes concern. From the very beginning the hearing was conducted in an inquisitorial way rather than giving either party an opportunity to present their case in an orderly fashion. Questioning by a member/adjudicator is often necessary and important to elicit critical facts than may not necessarily be seen as relevant by the parties. However, to put the parties and their witnesses under immediate questioning can be disconcerting to them and create a sense, sometimes justifiably, that they have not had a fair hearing.
[28] John and Chris Willich make this complaint and, on reading the transcript, there is some justification for this complaint. An example is their request for an inspection of the property. In the minor civil jurisdiction, it is unlikely such a request would be granted because of time constraints, but it is again important to consider the application and give short reasons to inform the applicant why the request is being refused. Here, it was simply not dealt with. It is also disconcerting to read that the hearing was abruptly brought to an end on the basis that the learned Member said he had heard enough, rather than ensuring that the parties had nothing further to say.
[29] No opportunity was given to either party to cross examine the other parties witnesses. In respect of Mr Volz’s evidence, if it required clarification, which it seems it did, the applicants should have been invited to have him attend by telephone.
Conclusion
[30] I am satisfied that the learned Member in this instance failed to give sufficient reasons for his decision. The failure to give sufficient reasons constitutes an error of law.[14] I am also satisfied that the learned member erred in not making a determination as to who the contracting party was and consequently who was liable for any loss. I accept the applicants’ contention that they were not given an opportunity to be fully heard and they therefore have been denied natural justice.
[14] Drew v Makita (Australia) Pty Ltd (supra) para 57.
[31] Leave to appeal must be granted. The appeal is allowed. This is not a case where the Appeal Tribunal can substitute its own decision[15] because the evidence needs to be further explored. Therefore the proceeding is remitted to the minor civil disputes jurisdiction to be reheard before another Tribunal member/adjudicator.
[15] QCAT Act, s 146.
0
0
0