Mattz Electrical Pty Ltd v Matkovic
[2011] QCATA 360
•17 December 2011
| CITATION: | Mattz Electrical Pty Ltd v Matkovic [2011] QCATA 360 |
| PARTIES: | Mattz Electrical Pty Ltd (Applicant/Appellant) |
| v | |
| Mr Marijan Matkovic (Respondent) |
| APPLICATION NUMBER: | APL332-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 17 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – where no error shown in the fact finding process Queensland Civil and Administrative Tribunal Act2009, ss 137, 138, 142(3) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QDR 404 |
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 Matkovic commenced a minor civil dispute proceeding against Mattz Electrical to recover $11,294.80 for the installation and supply of intercom equipment at a property development at Musgrave Avenue, Southport. The work commenced on 17 June 2009 and was completed on 25 September 2009. Mattz Electrical filed a response to the minor civil dispute acknowledging that $4,070.00 was owed by it and a further order was sought that Mr Matkovic supply a tax invoice for the work done. No other ground of defence was raised.
In support of the claim Mr Matkovic produced a statement (number 100114) which is in the nature of a running account showing details of invoices issued and payments received. There were 11 invoices with various amounts paid during the course of the relationship. There were two amounts outstanding for work done, one for $4,070.00 for work done on 12 September 2009 and the other for $7,224.80 being the final work done on 25 September 2009.
The only amount in dispute at the hearing on 14 August 2011 was the claim for $7,224.80. By the time of the hearing Mr Matkovic had supplied the tax invoice to Mattz Electrical. Mr Franicvic of Mattz Electrical, gave some confusing evidence about the cost of the installation of the intercom system but the learned Adjudicator accepted Mr Matkovic’s evidence that, although the quote for this was $20,000.00, Mattz Electrical was in fact charged $18,000.00. She also accepted the evidence of Mr Matkovic that the invoices confirmed that Mattz Electrical had already paid for part of this work and the amount claimed was for the balance of the work pursuant to the quote. Mr Franicvic’s evidence did not satisfactorily address these issues.
The learned Adjudicator made a specific finding that she accepted the statement dated 14 January 2010 as it showed a “course of conduct between the parties indicating that not only would an amount be paid for the intercom system in a global sum but also some other amounts would be allowed for works that were being undertaken by the applicant for the benefit of the respondent, the telephone system and the television.” She made an order that Mattz Electrical pay to Mr Matkovic $11,294.80 by 16 September 2011.
From that decision, Mattz Electrical has filed an application for leave to appeal or appeal. Leave to appeal is necessary because this is an appeal from a decision in the minor civil dispute jurisdiction of the Tribunal.[1]
[1] QCAT Act, s 142(3).
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?
The grounds of appeal do not attempt to identify any error or mistake on the part of the learned Adjudicator in coming to her conclusion. There is simply a contention that Mr Matkovic had been overpaid for the work. It is alleged that Mr Matkovic did not contract with Mattz Electrical but was doing “deals with the previous secretary and company director.” It is also alleged that he was issuing over inflated invoices. Further, it is contended that the work undertaken by Mr Matkovic had been done by other subcontractors but Mr Matkovic was claiming the money. These matters were raised in a vague way before the learned Adjudicator.
The submissions in support of the appeal also do not assist in identifying any error on the part of the learned Member to establish that leave should be granted. The submissions simply recite factual matters that were either put before the Tribunal or alternatively ought to have been put before the Tribunal during the course of the hearing. The submission sets out the historical background to the relationship between the applicant and the respondent as well as providing evidence as to why Mr Matkovic was not entitled to the payment.
In addition, further evidence has been supplied by way of bank statements which no doubt could have been put before the learned Adjudicator. Fresh evidence will only be accepted if it was not reasonably available at the time the proceeding was heard and determined.[2] Ordinarily an applicant for leave to adduce such evidence must satisfy each of the following tests:
[2] QCAT Act, ss 137 and 138.
a) The evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive);
c) That the evidence is credible though it need not be incontrovertible[3].
[3] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QDR 404 at 408.
[10] Clearly this evidence would have been available at the time of the hearing and when one has regard to the findings by the learned Adjudicator as well as the exchange between her and the parties during the course of the hearing I am not convinced that even if she had this evidence the outcome would have been different. My task is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[4]
[4] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QDR 404 at 408.
[11] Mattz Electrical has failed to identify any error on the part of the learned Adjudicator in the fact finding process nor has it identified any error of law which would warrant a grant of leave to appeal. The evidence does not suggest that there is a prospect that the applicant would obtain further substantial relief if leave was granted. On the facts as found by the learned Adjudicator, it cannot be said that there has been a substantial injustice.
[12] For these reasons, leave to appeal should be refused.
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