Matador Tapas Bar Pty Ltd v Delab Construction Services Pty Ltd
[2014] QCATA 241
•14 August 2014
| CITATION: | Matador Tapas Bar Pty Ltd v Delab Construction Services Pty Ltd [2014] QCATA 241 |
| PARTIES: | Matador Tapas Bar Pty Ltd (Applicant/Appellant) |
| v | |
| Delab Construction Services Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL568 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 14 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR COMMERCIAL BUILDING DISPUTE – 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
Matador Tapas Bar Pty Ltd engaged Delab Construction Services Pty Ltd to do shopfitting work. Matador failed to pay the final instalment under the contract so Delab filed a claim for $5,748.30. Matador filed a counterclaim for defective work and loss of income due to delay which exceeded Delab’s claim.
Matador did not attend the hearing of the dispute. A member of the tribunal considered both Delab’s claim and Matador’s counterclaim in detail. The learned Member ordered Matador pay Delab $5,748.30. Matador’s counterclaim was dismissed.
Matador applied to reopen the proceeding. That application was refused. Matador now wants to appeal the learned member’s decision. The sole ground of appeal is that Matador did not appear at the hearing and, therefore, the learned Member made his decision without the benefit of evidence or submissions from Matador.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Even though Matador is applying for leave to appeal the learned member’s original decision, the grounds of appeal reveal that it is really an appeal against the refusal to reopen or, in fact, another attempt at a reopening. It is, therefore, necessary to examine the reopening ground briefly.
Matador says that it did not attend the hearing because it did not receive notice of the hearing. It says that, at a directions hearing, the tribunal stated that the hearing would be listed “some time around 21 November 2013.” It said that a representative of Matador contacted the tribunal on 21 November 2013 to be told to “await the decision”.
The tribunal file shows that Mr Olivares, for Matador, attended a directions hearing on 11 September 2013. At that directions hearing, the Senior Member listed the hearing for 15 November 2013. The tribunal posted a copy of that direction to the parties on 12 September 2013. On the same date, the tribunal posted a notice of hearing to the parties. Matador says it did not receive the notice of hearing. It is odd, that it received every other document posted to the same address. It is odd that Mr Olivares did not make a note of the hearing date. The tribunal’s advice on 21 November 2013 is entirely consistent with the fact that the learned Member had heard the dispute but not delivered his decision. Matador did not demonstrate as reasonable excuse for not attending the hearing.
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.
The transcript shows the learned Member took care during the hearing to put each of Matador’s points of counterclaim to Delab. He referred to the photographs Matador submitted. He looked at the contract and the contract drawings. The learned Member pointed out that the mere fact of defective work did not entitle Matador to deny payment[5]. The proper course, if Matador had paid the contract price in full, was to call on the builder’s warranty to have the defects fixed.
[5]At [31].
The learned Member found that breaches of the Queensland Building Services Authority Act 1999 (Qld) were not within the tribunal’s jurisdiction in this dispute, had not been established and did not justify a failure to pay the contract amount[6]. The learned Member also found that the Australian Consumer Law and the Trade Practices Act did not apply to a commercial building dispute[7].
[6]At [34].
[7]At [35].
Finally, the learned Member found that Matador had not established that Delab caused any loss.
The evidence can support all of the learned Member’s findings. There is nothing in the transcript to persuade me that the learned Member should have taken a different view of the facts.
There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.
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