Mohan v McMillan
[2016] QCATA 117
•25 July 2016
| CITATION: | Mohan v McMillan [2016] QCATA 117 |
| PARTIES: | Nishant Mohan (Applicant/Appellant) |
| v | |
| Darryl McMillan (Respondent) |
| APPLICATION NUMBER: | APL086 -16 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 25 July 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – REMUNERATION - RECOVERY – where contract to renovate bathrooms – where progress payments not made – where claim for progress payments – where tribunal found for builder –whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – POWERS OF APPELLATE TRIBUNAL – TO ADMIT NEW EVIDENCE – where hearing adjourned – where orders for parties to file evidence – where parties complied with orders – where respondent wanted to file further evidence on appeal – whether fresh evidence should be admitted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(4)(a) 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
Builder Darryl McMillan agreed to renovate Nishant Mohan’s ensuite and bathroom. They signed a contract on 21 June 2015. Mr McMillan also claimed that there was an additional agreement that Mr Mohan would pay for Mr McMillan’s tiler to re-establish floor levels after the floors had been prepared for tiling. Mr Mohan did not pay all the payments required by the contract. Mr McMillan filed a claim in the tribunal. The tribunal ordered Mr Mohan pay Mr McMillan $5,923.70
Mr Mohan wants to appeal that decision. 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].
Mr Mohan’s sole ground of appeal is that, at the time of the hearing, he could not produce all his evidence, due to his error. He wants the tribunal to consider all of the evidence he now places before the appeals tribunal.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.
This dispute was first listed for hearing at Caboolture on 14 December 2015. Mr Mohan did not appear at that hearing. The tribunal did not hear and decide Mr McMillan’s claim because, on the day of the hearing, the tribunal received an application from Mr Mohan to transfer the hearing to Brisbane and adjourn it to a date after 1 January 2016. The tribunal did transfer, and adjourn, the hearing. It also directed that each party file and serve relevant documents by 8 January 2016.
Mr Mohan filed his documents on 27 January 2016. He noted that he had just returned from an interstate holiday and that the material was ‘in hurried compliance’ with the tribunal’s order. He enclosed a list of eight witnesses.
At the hearing, Mr Mohan told the tribunal that he left a bunch of receipts at home; that he forgot them.[4] But he did not file and serve copies of these receipts, as he was required to do and he did not ask for extra time to file them. Mr Mohan has not adequately explained why the evidence before the appeals tribunal was not before the tribunal below.
[4]Transcript page 1-34, lines 21 – 22; page 1-35, lines 7 – 8.
The tribunal asked Mr Mohan about his witnesses. Mr Mohan told the tribunal he ‘could have brought them but I didn’t know whether I would get them today’.[5]
[5]Transcript page 1-44, lines 40 – 41.
There was a dispute about whether Mr McMillan paid his trades or whether Mr Mohan paid them. Both gentlemen agreed that Mr Mohan engaged the same trades to do renovation work that was not part of Mr McMillan’s contract. The receipts will not, of themselves, have an important impact on the result of the case.
The fresh evidence should not be admitted.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
I’ve read the transcript of the hearing. The evidence can support the tribunal’s findings and I can find no compelling reason to come to a different view.
Mr Mohan really wants to reopen the hearing below. There are two reasons why a tribunal hearing can be reopened: if Mr Mohan did not appear at the hearing; or because significant new evidence has arisen that was not reasonably available to Mr Mohan at the initial hearing.[8] Mr Mohan does not satisfy either of these reasons.
[8]QCAT Act s 139(4)(a); Schedule 3.
There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
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