N & H Enterprises Pty Ltd v Caughey

[2011] QCATA 287

CITATION: N & H Enterprises Pty Ltd v Caughey [2011] QCATA 287

PARTIES:	N & H Enterprises Pty Ltd
v
Mrs Kathryn Caughey

APPLICATION NUMBER:            APL296-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Peta Stilgoe, Acting Senior Member

DELIVERED ON:   6 October 2011

DELIVERED AT:   Brisbane

ORDERS MADE:      Leave to appeal refused. 

CATCHWORDS:

MINOR CIVIL DISPUTE – claim against trader for faulty work – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mrs Caughey engaged N & H Enterprises Pty Ltd to fix a problem with her tiles as they were covered with a white powdery substance.  Mr Stankovic, on behalf of N & H, identified that the white powder was efflorescence.  He agreed to clean the tiles, include an efflorescence remover in the cleaning, and then seal the tiles to prevent recurrence of the efflorescence.  Mr Stankovic did the work and Mrs Caughey paid N & S a total of $2,376.

1. The efflorescence reappeared within 48 hours.  Mr Stankovic cleaned the tiles again but, again, the efflorescence appeared.  Mrs Caughey “gave up” because, by that time, Mr Stankovic was denying any responsibility.

1. About 14 months later, Mrs Caughey filed a claim in the minor civil disputes jurisdiction of the tribunal claiming a refund of the money paid to N & H plus the cost of rectifying the tiles.  The learned Adjudicator refused Mrs Caughey’s claim for rectification.  He also found that Mr Stankovic had cleaned the tiles as promised but he did not treat the tiles to prevent the return of the efflorescence.  He ordered N & H to pay Mrs Caughey $1,676.

1. N & H has appealed the learned Adjudicator’s decision on the basis that it was, simply, wrong.  It says that Mrs Caughey made contradictory statements at the hearing, provided false information and did not prove her claim.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.  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?

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1] 

   [1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2]  As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[3]

[2]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[3]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. I have read the transcript carefully.  The learned Adjudicator gave Mr Stankovic ample opportunity to state his case.  The submissions that N & H put before the appeal tribunal were well made by Mr Stankovic at the hearing.  The learned Adjudicator did not accept Mr Stankovic’s evidence and preferred the evidence of Mrs Caughey.  The principal reason why the learned Adjudicator did not accept Mr Stankovic’s evidence is that Mr Stankovic conceded that he did not tell Mrs Caughey that N & H could not guarantee the efflorescence problem would be solved as there may have been other factors which were outside Mr Stankovic’s control.

1. The learned Adjudicator’s finding in that regard can be supported by the evidence.  There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts and I can find no compelling reason to come to a different view.

1. There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.