Multichoice Filtration Pty Ltd v Cooling and Heating Equipment Pty Ltd

[2025] QCATA 86

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Multichoice Filtration Pty Ltd v Cooling and Heating Equipment Pty Ltd [2025] QCATA 86

PARTIES:

MULTICHOICE FILTRATION PTY LTD

(applicant/appellant)

v

COOLING AND HEATING EQUIPMENT PTY LTD

(respondent)

APPLICATION NO/S:

APL145-24

ORIGINATING APPLICATION NO/S:

Q249/22

MATTER TYPE:

Appeals

DELIVERED ON:

26 September 2025

HEARING DATE:

8 August 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves
Member Kent

ORDERS:

1.     Leave to appeal is refused.

2.     The application for leave to appeal or appeal filed on 4 June 2024 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where application for a minor civil dispute – minor debt claim – where claim relates to goods sold and delivered  – where no counter application, counter claim or set off by buyer allowed by adjudicator – whether error in law in such approach – whether error in finding invoice payable where some goods not delivered, used or damaged – whether errors of fact made in relation to applicant’s dealings with Queensland Health – where applicant submits it had to purchase goods elsewhere due to goods being held ‘illegally’ by respondent – whether leave to appeal should be granted – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 12, s 13, s 14, s 142

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 7, r 10, r 45, r 48, r 49

Sale of Goods Act 1896 (Qld), s 20, s 21

Auspex Property Research Pty Ltd v Morris [2019] QCATA 9

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This is an application for leave to appeal and/or appeal a decision of the Tribunal dated 23 April 2024 in which the Tribunal ordered Multichoice Filtration Pty Ltd (the applicant) to pay Cooling and Heating Equipment Pty Ltd (the respondent) the sum of $22,187.00 within 60 days of the date of the order:

2. Given the Tribunal’s decision was made in a proceeding for a minor civil dispute (a minor debt claim), the applicant requires leave to appeal.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) (‘QCAT Act’).

3. In determining whether to grant leave, the Appeal Tribunal must be satisfied that:

   (a)there is a reasonably arguable case of error in the primary decision;

   (b)there is a reasonable prospect that the appellant will obtain substantive relief; and

   (c)leave is needed to correct a substantial injustice caused by some error; or

   (d)there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[2]

   [2]Crime and Corruption Commission v Lee [2019] QCATA 38, [12]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34, [17].

The grounds of appeal

1. In the application for leave to appeal and/or appeal, the applicant lists the following grounds of appeal:

   Unclear Reasons – incorrect figures amounts

   No factual Evidence

   Credibility of MCF

   Goods illegally held.

2. The grounds of appeal are elaborated upon in an attachment to the application and, doing the best we can, are summarised as follows:

   (a)Ground One: There was no factual evidence to support the claim that the respondent was owed the amount of the invoices totalling $24,905.10.

   (b)Ground Two: There was an incorrect factual finding as to MCF’s dealings with Queensland Health.

   (c)Ground Three: The applicant does not understand why the applicant’s claim for set off/liquidated damages was not allowed.

   (d)Ground Four: The applicant does not understand why the applicant was made to pay for goods supplied by the respondent which were either lost, used or damaged.

   (e)Ground Five: The applicant incurred the costs of replacing goods due to the respondent unlawfully retaining the applicant’s goods.

3. We observe before separately considering each of the grounds of appeal that the appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal.[3]

   [3]Alderton v Wide Bay Constructions Pty Ltd [2017] QCATA 147, [38].

4. We note an assertion to the effect that a finding was ‘against the weight of the evidence’ is not a question of law.[4] A factual conclusion is not infected by legal error unless there is no evidence to support it or unless it is clear, beyond serious argument, that it is wrong.[5] It is insufficient that the Appeal Tribunal merely disagrees with a factual view of the Tribunal at first instance.[6]

Ground One: There was no factual evidence to support the claim that the respondent was owed the amount of the invoices totalling $24,905.10  

[4]Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, 410-411.

[5]JM v QFG [2000] 1 Qd R 373, 391 (Pincus JA).

[6]Ibid.

1. In submissions filed in support of the application for leave to appeal and/or appeal, the applicant submits there was no factual evidence to support the respondent’s claim for a debt of $24,905.10.

2. The original application for minor debt filed on 11 May 2022 claimed $24,905.10 less a credit (on CNIV3790) plus interest and outlays in the sum of $26,856.56. That claim was determined in the respondent’s favour on 25 July 2022 when the applicant was ordered to pay the respondent $25,337.35. This decision was appealed and, on 19 June 2023, the Appeal Tribunal upheld the appeal and remitted the case for reconsideration of the claim and any set off claim properly set out and evidenced.

3. The applicant’s claim was again amended and reduced upon the oral application of the applicant at the hearing. The revised and reduced claim for payment of unpaid invoices 210092, 210093, 220002 and 220001 was for $22,506.00 plus interest and costs. In so amending its claim, the learned adjudicator observed that the applicant had ‘appropriately abandoned its previous claim for goods/storage because it was a claim for damages, not a claim in debt’.[7]

   [7]Reasons, [100].

4. An amended Response was filed on 21 August 2023. The applicant filed a Reply to the amended Response on 31 August 2023.

5. The ground of appeal presupposes that whether a debt was established depended upon certain facts being established but does not articulate what those facts were nor what evidence was lacking.

6. The learned Adjudicator made the following relevant findings:

   (a)The offer was made by the applicant sending a Purchase Order for goods at a nominated price, which the respondent accepted by ordering the goods from an overseas supplier, issuing an invoice for the identical costings in the Purchase Order and notifying the applicant that the goods had been ordered and of their estimated delivery date.

   (b)Each of the contracts, represented by the relevant Invoices were separate, non-entire contracts. Complete performance of the obligation to supply the ordered goods was not a condition of liability to pay the agreed contract price. Put another way, receipt of the goods ‘in full’ was not a condition of payment.

   (c)Time for delivery of the ordered goods was not of the essence.

   (d)The goods were delivered to the applicant when they were received at the respondent’s warehouse at the Gold Coast.

   (e)Ownership of the goods vested in the applicant at the time the goods were ordered, applying s 20 and s 21 r 1 of the Sale of Goods Act 1896 (Qld).

   (f)If goods arrived damaged or did not arrive the cost of those goods would be credited back to the applicant.

   (g)The ‘price adjustment’ agreed for goods not delivered or goods delivered damaged but returned in circumstances where time was not of the essence of any of the contracts means the respondent was never in breach of any of the contracts on that account during the two years of trading.

   (h)The applicant was liable to pay for the goods within 30 days from the end of the month after the month in which the goods ordered were delivered to the warehouse.

   (i)The respondent is not contractually liable for any claims for set-off and claims otherwise for set off (i.e., for damages for negligence or for wrongful retention of goods) are otherwise not justiciable in QCAT.

7. The learned adjudicator found that the amount claimed by Cooling for the goods referred to in the claim as amended on 30 January 2024 was belatedly the correct amount owing by Multichoice before permissible set-off. That is, that those goods were goods the subject of purchase orders and that the amount claimed in respect of those goods was made out. The learned adjudicator also found that Multichoice had 30 days from the end of the month in which the goods ordered were delivered, to pay; and that Cooling would issue a credit to Multichoice for goods ordered but not delivered to the warehouse and for goods delivered in a damaged condition returned by Multichoice which is what occurred during the course of their dealings.

8. The learned adjudicator proceeded on the basis that the invoices evidenced the goods the subject of the contract, the obligation to pay arose upon delivery of goods the subject of the contract. Those goods not delivered were the subject of the credit notes referred to in the learned adjudicator’s reasons.

9. On this basis, the adjudicator effectively found that the parties had agreed that, provided Cooling had delivered goods which were bona fide purported delivered under the contract, there had been delivery under the contract for the purpose of the agreement and Multichoice could not withhold payment on the basis the goods did not come up to specification or on the basis there had been short delivery. In those cases, the parties agreed there would be a credit note issued.  

10. In the circumstances, there was evidence of the goods the subject of the contract. The invoices evidence the amount owing. The applicant has not demonstrated those factual findings to be glaringly improbable. In the circumstances, the appeal ground fails.

11. It appears that the substance of the applicant’s submission in relation to this ground is that the claims on the invoices could not be made in circumstances where the goods had either not been delivered or were damaged and the learned adjudicator erred in failing to satisfy himself that the goods the subject of the invoices had, in fact, been delivered.

12. As I have set out above, the learned adjudicator made findings about the nature of the contract and the application of the Sale of Goods Act provisions, that made that factual enquiry irrelevant.

13. There is no merit to this ground. Leave to appeal on this ground is refused.

Ground Two: There was an incorrect factual finding as to the applicant’s dealings with Queensland Health

1. The applicant refers in its submissions to paragraph [149] of the learned adjudicator’s Reasons where he said:

   Regarding Mr Esplin’s reference to Queensland Health, on his oral evidence on 30 January 2024 I find that Multichoice never dealt with Queensland Health, rather it contracted with market intermediaries, HVAC air-conditioning companies who may have supplied to Queensland Health.

2. However, at paragraph [150] the learned adjudicator continues:

   Nothing turns on that for present purposes. I find that agreements between Queensland Heath and intermediaries for supply of Multichoice product are irrelevant.

3. The applicant has filed with its application for leave to appeal or appeal two (2) purchase orders by two (2) separate hospitals which appear to have an affiliation with Queensland Health. There is no proper basis for this further evidence to be permitted on the appeal and we will not consider it. For the reasons below, it would not have changed our decision in any event.

4. The learned adjudicator’s finding that Multichoice never dealt with Queensland Health was a finding of fact. It has not been shown to be so improbable as to permit it to be upset on appeal. Accordingly, the appeal ground must fail.

5. But, in any event, the applicant raised the relationship to make the point that it suffered loss or damage when the respondent failed to fulfil its contract to supply goods within a reasonable time because it meant the applicant was unable to on-sell the goods to its customers. The applicant claimed this caused it to suffer loss because those customers would seek reimbursement from it for the difference in the cost those customers incurred from sourcing the goods from elsewhere.

6. Even if the learned adjudicator was mistaken about whether the applicant had contracted directly with Queensland Health or only through an intermediary, it does not make any difference to the outcome of the debt claim. As the learned adjudicator said, nothing turned on it. This is correct given the adjudicator’s findings about the terms of the contract between the parties, in particular, that the contracts were not entire and time of delivery was not of the essence. It is also correct because there is no jurisdiction to consider an unliquidated damages claim.

7. There is no merit in this ground. Leave to appeal this ground of appeal is refused.

Ground Three: The applicant does not understand why the applicant’s claim for set off/liquidated damages was not allowed

1. The applicant submits that the learned adjudicator erred by failing to do what the Appeal Tribunal ordered, namely, to consider any set-off claim.

2. It is important to clarify the effect of the Appeal Tribunal’s order. The order was to remit the matter for reconsideration of the claim and any set off claim which may be properly set out and evidenced. It does not mean that any set off claim should be allowed. The learned adjudicator, in any event, is constrained by the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) and cannot act beyond what is permitted by the statutory scheme.

3. The learned adjudicator considered in some depth whether the applicant’s set off claim for unliquidated damages could be allowed and decided it could not for the reasons given at [23] to [39] and at [46] to [78]. We agree that there was no jurisdiction for the adjudicator to consider set off for an unliquidated claim for damages, that is, an equitable set off. On the other hand, the learned adjudicator allowed for the credit note given by the respondent to the applicant for moneys it owed to the applicant at [110] to [111]. The credit was specifically required by the terms of the contract as found by the adjudicator. It was not specifically in the nature of a ‘set off’.

4. It is also clear that the learned adjudicator explained on many occasions during the hearing the consequences of not transferring the matter to the Magistrates Court where a counterapplication for damages could be filed and adjudicated.

5. The applicant submits in support of this ground that it does not understand why the set-off claim was not allowed and that it elected not to have the matter transferred to another court because that would cost more money on top of what had already been incurred. These submissions do not demonstrate any error on the part of the adjudicator.

6. There was no failure on the part of the adjudicator to consider the set off claim. This ground has no merit. Leave to appeal on this ground is refused.

Ground Four: The Tribunal made an error in finding that the applicant could not claim unliquidated damages

1. The applicant submits it is entitled to unliquidated damages and that the learned adjudicator erred in finding otherwise. This ground raises a question of law.

2. The QCAT Rules provide, relevantly:

   48 Respondent may make counter-application except for minor debt claim

   (1) A respondent to an application or referral for a proceeding may, in response to the application or referral, apply to the tribunal for stated orders against another person, who may or may not be a party to the proceeding (a counter-application).

   (2) A counter-application may be made instead of making a separate application to the tribunal to deal with the matters in relation to which the orders are sought.

   (3) A counter-application can not be made in response to an application for a minor debt claim.

   49 Dealing with counter-application matters for minor debt claim

   (1) If there are circumstances suggesting that a respondent to an application for a minor debt claim could have, apart from rule 48(3), applied for orders against the applicant by way of a counter-application, the tribunal may—

   (a) order that the circumstances be dealt with as a separate minor debt claim; and

   (b) give any directions the tribunal considers appropriate in relation to the matter.

   (2) If a respondent has brought a proceeding for an application against an applicant for a matter that, apart from rule 48(3) may have been the subject of a counter-application to an application for a minor debt claim, the tribunal may—

   (a) order the enforcement of any final decision in the first proceeding be suspended for the time and on the conditions it considers appropriate; and

   (b) give any directions the tribunal considers appropriate in relation to the matter.

3. The learned adjudicator provided a detailed discussion of whether a counter-application or counterclaim for unliquidated damages could be made by the applicant in the proceedings.[8]

   [8]Reasons, [27]-[39] and [48]-[78].

4. During the Hearing on 9 November 2023, the learned adjudicator explained to the respondent that a claim for compensation for damages sustained could not be claimed in the current proceeding for a minor debt.[9] Subsequently, the adjudicator explained that the applicant could not bring a counter-application or make a claim for damages in the same proceeding.[10]

   [9]Transcript 9 November 2023, 1-3 line 22 to 1-4 line 14.

   [10]Transcript 9 November 2023, 1-4 line 19 to 1-5 line 40.

5. The applicant’s submissions in relation to this aspect are confused[11] and do not offer any authority that overcomes the effect of rules 48 and 49 of the QCAT Rules, nor displace the Adjudicator’s application of the relevant cases.[12]

   [11]Applicant’s submissions filed 26 August 2024, 8-12, 15-18.

   [12]Those cases being Langley & Anor v Ouzit Pty Ltd [2024] QCATA 18; Simons v R & D Accounting [2022] QCATA 131; Auspex Property Research Pty Ltd v Morris [2019] QCATA 9; NR Barbi Solicitor Pty Ltd v Miller & Old Coach Developments Pty Ltd [2015] QCAT 57; and D Galambos and Son Pty Ltd McIntyre (1974) 5 ACTR 10.

6. The QCAT Act and Rules do not distinguish between a set-off and a counter claim. Rule 48(1) states that a respondent may, in response to an application, apply to the tribunal for stated orders against another person, including the applicant. Rule 48(3) states that a party cannot make a counter-application in response to an application for minor debt. Rule 49 provides for those cases where there are circumstances suggesting that a respondent to a minor debt claim could have applied for orders by way of counterclaim. The tribunal may order that they be dealt with as a separate minor debt claim or give directions it considers appropriate.

7. The difference between set-off and counter-application was explained by Member Paratz in Auspex Property Research Pty Ltd v Morris[13] where he referred to the commentary by Cairns in the latter’s well-regarded text Australian Civil Procedure:

   Quite apart from matters that are a direct answer to the plaintiff’s claim, the defendant may have a cross-claim against the plaintiff that will either extinguish or reduce the plaintiff’s claim. The cross-claim may be such that it is justifiable for the defendant not to pay the plaintiff until the court makes a decision on the defendant’s claim. The cross-claim may be either a set-off or a counterclaim. In either event the cross-claim may be pleaded against the plaintiff in the original proceeding, but a set-off differs in nature from a counter-claim.

   A set-off is a defence which precludes the plaintiff enforcing the claim, either in full or in part. A counter-claim is a separate proceeding in its own right. Where a counter-claim is pleaded it proceeds against the plaintiff in the same way as if the plaintiff had been sued by the defendant in a proceeding. If the plaintiff discontinues the proceeding a set-off comes to an end. If the defendants cross-claim is a counterclaim the matter proceeds on the defendant’s claim, irrespective of the fate of the plaintiffs proceeding.[14]

   [13][2019] QCATA 9.

   [14]Auspex Property Research Pty Ltd v Morris [2019] QCATA 9, [40].

1. As was explained to the applicant many times, it may have been entitled to a claim in damages, but it needed to bring that claim in the appropriate forum. It chose not to do so.

2. There is no merit to this ground.

Ground Five: The applicant incurred the costs of replacing goods due to the respondent unlawfully retaining the applicant’s goods.

1. The applicant has not demonstrated error by this ground. It was not disputed that the applicant incurred the costs of sourcing replacement goods due to the respondent retaining goods they had ordered. This issue however was whether the damages caused by this was recoverable by the applicant in an action brought by the respondent for a minor debt. It was not.

2. There is no merit to this ground. Leave to appeal on this ground is refused.

Conclusion

1. We find that the applicant has not established any error by the learned adjudicator. Mere disagreement or dissatisfaction with a decision is not a ground on which leave to appeal will be granted.

2. Accordingly, leave to appeal is refused. The application for leave to appeal or appeal is dismissed.