N B Hayward Pty Ltd t/as MC Engineering v Warren Dunell & Associates Pty Ltd
[2014] QCATA 342
•15 December 2014
| CITATION: | N B Hayward Pty Ltd t/as MC Engineering v Warren Dunell & Associates Pty Ltd [2014] QCATA 342 |
| PARTIES: | N B Hayward Pty Ltd t/as MC Engineering (Applicant/Appellant) |
| v | |
| Warren Dunell & Associates Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL418-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President Stilgoe OAM |
| DELIVERED ON: | 15 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Warren Dunell & Associates Pty Ltd shall file and serve any statements of evidence and submissions on which it wishes to rely by 23 January 2015. 3. N B Hayward Pty Ltd t/as MC Engineering shall file and serve any statements of evidence and submissions in reply by 15 February 2015. 4. The appeal shall be listed for a half day hearing on a date to be advised. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where minor debt claim – where counterclaim filed – where tribunal made directions about claim and counterclaim – where Adjudicator refused to consider counterclaim –whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b) Pickering v McArthur [2005] QCA 294 |
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
Warren Dunell & Associates Pty Ltd erected steelwork for N B Hayward Pty Ltd t/as MC Engineering at the ABC site at Southbank. Dunell rendered invoices, which Hayward paid. Dunell also rendered invoices totalling $24,336.15 for ‘extra work’, which were not paid. Dunell filed a claim in the minor civil disputes jurisdiction of the tribunal. The tribunal ordered Hayward pay Dunell $22,371.15.
Hayward wants to appeal that decision. It submits the learned Adjudicator erred in failing to consider its counter claim. It also submits that the learned Adjudicator erred in failing to applying a set off.
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].
Hayward acknowledges that, usually, a respondent to a minor debt claim cannot make a counterclaim[3]. The learned Adjudicator refused to consider Hayward’s counterclaim on this basis.
[3]Queensland Civil and Administrative Tribunal Rules 2009 r 48(3).
However, as Hayward points out, if the tribunal is aware that a respondent does have a counterclaim, it can make orders about the counterclaim[4]. Presumably, this power enables the tribunal to fulfil its obligation to deal with matters in a way that is economical, informal and quick[5].
[4]Ibid r 49.
[5]QCAT Act s 3(b).
The tribunal did make orders about the counterclaim. On 30 May 2014, the tribunal ordered Hayward file and serve a defence and counterclaim by 18 July 2014. The tribunal also ordered the parties file material relating to the counterclaim. On 22 August 2014, on an application to reopen the proceeding, the tribunal ordered that the claim and counterclaim be relisted promptly for hearing.
The parties brought these matters to the learned Adjudicator’s attention[6]. Despite that, the learned Adjudicator refused to hear or consider the counterclaim. The learned Adjudicator had the power to consider it and he should have done so. His failure to do so was an error for which leave to appeal should be granted.
[6]Transcript page 1-4, lines 35 – 45.
Because the appeal is on mixed fact and law, the appeal tribunal must decide the appeal by way of rehearing[7].
[7]QCAT Act s 147(3).
The learned Adjudicator did hear evidence, and made findings, about some of Hayward’s counterclaim. He reduced the rate for Dunell’s additional work from $75 per hour to $60 per hour[8]. He did not accept that the agreement included a term that Dunell finish the work on a particular date or within a particular time frame[9]. He found that Dunell was not responsible for the cost of changing the bolts because the change was initiated by a third party and was, therefore, outside Dunell’s control[10]. Those findings can be supported by the evidence and I can find no compelling reason to come to a different view.
[8]Transcript page 1-50, lines 6 – 13.
[9]Transcript page 1-48, lines 14 – 21.
[10]Transcript page 1-40, lines 4 – 19.
The learned Adjudicator did not consider the following:
a) Hayward’s provision of additional labour to assist Dunell.
b) Incomplete grouting ($6,000).
c) The cost of rectifying the roof steel to a straight line (Leighton’s back charge of $14,166).
d) The extra guttering charges due to Dunell’s delay (Leighton’s back charge of $23,440).
e) Wasted grouting work (Leighton’s back charge of $1,100).
Although I have statements from Hayward relating to these issues, there is nothing on file from Dunell. Because the learned Adjudicator declined to hear the counterclaim, there is no evidence or response from Dunell in the transcript. I therefore direct:
a) Dunell shall file and serve any statements of evidence and submissions on which it wishes to rely by 23 January 2015.
b) Hayward shall file and serve any statements of evidence and submissions in reply by 15 February 2015.
c) The appeal shall be listed before me for a half day hearing on a date to be advised.